Spanking New Zealand

Parenting in New Zealand

Those readers who sometimes feel that Australia is succumbing to the worst excesses of political correctness haven’t spent any time in Canada or New Zealand in a while. In comparison to those two jurisdictions, we here look like a model of sanity, thick-skinnedness, and keeping government out of people’s every waking decision.

Take New Zealand and the issue of parents spanking their children.  My family and I lived across the Tasman for 11 years, from 1993 to 2004. During that time there was a concerted effort to make spanking illegal. The goal was to remove section 59 of their Crimes Act over there. This section basically stated that a parent is justified in using force against his or her child if it is for the purpose of correction and if the force used is reasonable in the circumstances.

Think of it as an exemption from the otherwise prevailing law of assault. It entitled parents, and only parents, to use reasonable force (call that spanking for short) to change children’s behaviour. To be legal, then, a spanking had to be motivated by a desire to correct or modify your child’s behaviour. And it had to reasonable (which would ultimately be up to a jury to decide were anyone prosecuted).

 At any rate this question of outlawing spanking was at the top of the agenda of the politically correct brigade, and will not doubt make it onto the agenda here sometime soon. A colleague and I, in 2001, wrote an article in the New Zealand Law Review that did a couple of things. It looked at the empirical studies of the effects of spanking and found that there is little solid evidence it has any malign effects at all. Here’s the conclusion of a review of the evidence from a decade ago: 

[a]ltogether, 9 articles (26%) found predominantly beneficial child outcomes associated with nonabusive or customary physical punishment, 12 articles (34%) found predominantly detrimental outcomes, and the other 14 articles (40%) found neutral outcomes, i.e., neither beneficial nor detrimental outcomes. (Larzelere, Pediatrics, 1996)

On top of that it often emerged that these sort of studies tended to define spanking in a way that won the debate, as including, say, hitting a child with a baseball bat or some such other conduct already illegal under any section 59 type exemption for parents regime.

In addition to going over the lack of empirical support for the abolitionist position, we also looked at the philosophical arguments used to support the anti-spanking crusade, and concluded that none of them was persuasive. Here’s a taste of that sort of catalogue:

1. Force the debate into the language of rights. Talk in these terms creates the dichotomy of ‘I have a right to spank’ versus ‘I have a right not to be spanked’, a big advantage for abolitionists. It also opens up the chance to point to some amorphous international treaty as mystically the last word on the issue.
2. Conflate spanking with hitting over the head with a baseball bat or any sort of raw abuse that is already illegal. This one happens all the time, by the way.
3. Suggest that there’s some sort of slippery slope leading from spanking on to child abuse (so that if you stop spanking, you’ll get a better record as regards abuse). The fact there’s no empirical evidence for this (absent strategy 2) above type ploys) is glossed over.
4. Claim spanking is ineffective and worse as an empirical fact. Again, though, this is elusively hard to prove.
5. Bring out the old canard that spanking teaches children that violence can solve problems. No one goes on to say other forms of punishment send similar sorts of messages, of course, say that ‘time out’ conveys the message that ‘false imprisonment’ is the right way to deal with people who displease us or that stealing others’ money (as in taking away pocket money) is the proper way sometimes to deal with others.  This sort of claim is ridiculous because it takes away the child-parent context in making the ‘X teaches Y’ claim.
6. Point to the Convention on the Rights of the Child, particularly article 19. Of course that refers to ‘physical violence’ and ‘abuse’ (not surprisingly, given the sort of countries that sign up to these things), but abolitionists are ever ready to interpret that in self-serving ways.

We then went on to point out how paternalistic any such anti-spanking law would be. Worse than that, perhaps, we noted that any law that affected an activity done by well-over half of all parents could never be enforced in anything other than an arbitrary way. Put differently, it would have malign effects on the rule of law.

Of course law review articles having the impact they virtually always have (at least mine), our piece had no effect at all on the abolitionists’ successful drive in New Zealand to outlaw spanking. (And for what it’s worth, if you take your kids over there and spank them, you have technically broken the law and will be relying on prosecutorial discretion not to be charged with a criminal offence. And don’t doubt for a moment that some sanctimonious person might not report you to the police. That happens.)

 So in 2007 the law was changed, driven through Parliament by a backbencher who had no children, supported by a Prime Minister who had no children, and given quiet backing (disgracefully so, in my view) by the current Prime Minister from the centre-right National Party, namely Mr. John Key. This law made spanking for correctional purposes a criminal offence (in effect), though it left a small loophole for spanking to stop disruptions.

Since then opinion polls have consistently shown a huge majority of New Zealanders wanting to go back to the old regime. Nor has the new law stopped serious child abuse at all.

As a result, after invoking a non-binding referendum law across the Tasman, those in favour of spanking managed to get enough signatures to force just such a referendum. It was held late last month and the results were staggering. 87.6 percent of New Zealanders voted to go back to the old system of allowing spanking for correctional purposes. Put differently, 1.5 million Kiwis voted that way. The ratio was about 8:1 in favour of getting rid of the politically correct law foisted on voters by, in my view, their terrible MMP voting system that can let little parties get their way on occasion when it corresponds with the wishes of a big party that would never initiate it, but is happy to sit back and let it happen.

Anyway, the supposedly conservative New Zealand Prime Minister had the very bad luck of having a private member’s bill seeking to reinstate correctional spanking drawn from the ballot right after the referendum. Mr. Key had said he wouldn’t change the law unless people were being arrested who shouldn’t be. (He wasn’t too concerned, if at all, with the people who were actually being interviewed at length by the social services or indeed by the police – his test was prosecutions.) Others differed from Mr. Key and asked whether the test shouldn’t be: “Is this a good law?”

Given the drawing of this private member’s bill Mr. Key, who had hoped to stall and let the issue go away, had to make a call. He did. He announced that none of his National Party people would support the private member’s bill, nor would he let them vote their conscience. In other words, he blew a big raspberry at the nine-tenths of New Zealanders who disagreed with him. And with the main opposition Labour Party supporting Mr. Key, voters really have no recourse.

What does this tell us, other than that a Labor Party influenced by union interests and redistribution of wealth concerns is miles better than one under the sway of the chardonnay-sipping, metropolitan elites (as in New Zealand)? I’m not sure. You might say that non-binding referenda have become a complete joke over in New Zealand with politicians prepared to ignore voters’ concerns come what may. You might say their voting system is so badly broken that what needs to be done, firstly, is to jettison it in favour of just about anything else on the planet.

But what you can’t say is that New Zealand provides any sort of appealing or compelling place to point to or copy for those people here in Australia who are pushing to end parental spanking. If anything, it has been a boon to those of us in favour of spanking. 

James Allan is Garrick Professor of Law at the University of Queensland.