Smacking referendum campaigner Larry Baldock wants a referendum, to run in conjunction with elections in 2011, on whether the results of referendums seeking repeal or amendment of any law should be binding.

The Kiwi Party leader and a leading organiser of the smacking referendum said the refusal of Prime Minister John Key to act on the result of that referendum raised questions about the abuse of executive power.

While I wish to see the law amended, and believe most of the public do also, the referendum was not a vote on repealing the anti-smacking law.

I, for one, would not vote in favour of repeal and returning to the old law.

I certainly would vote for amending the law, as outlined in the Borrows amendments in the Boscawen bill.

But the referendum did not specify that the law be repealed or amended. For Baldock’s proposal to work, the referendum would have to explicitly (instead of implicitly) state what law is to be repealed.

If we did have binding referenda, I’d be tempted to start one to get rid of the archaic criminal offence of blasphemous libel. Blasphemy should not be a crime – it should purely be an issue between a person and their church.

Incidentally I have run the results through my margin of error calculator as it it were a poll. If one assumes those who did not vote would vote the same as those who did vote, then the margin of error for the no vote was +/- 0.022%.

The Election Results Website usefully now has a useful excel spreadsheet of the votes per electorate.

Lowest Turnout

1. Tāmaki Makaurau 34.2%
2. Hauraki-Waikato 34.4%
3. Ikaroa-Rāwhiti 36.1%
4. Waiariki 36.6%
5. Te Tai Hauāuru 37.4%

Highest Turnout

1. Bay of Plenty 66.8%
2. Coromandel 66.2%
3. Rodney 66.1%
4. Waitaki 65.9%
5. Selwyn 65.2%

Highest Informal Votes

1. Wellington Central 2.02%
2. Rongotai 1.23%
3. Ohariu 1.15%
4. Dunedin North 1.12%
5. Auckland Central 1.10%

Highest Yes Votes

1. Wellington Central 36.0%
2. Rongotai 29.3%
3. Auckland Central 29.2%
4. Mt Albert 23.1%
5. Ohariu 19.9%

Highest No Votes

1. Waikato 92.54%
2. Taranaki-King Country 92.41%
3. Clutha-Southland 92.39%
4. Hunua 92.38%
5. Taupo 92.30%

The Police and Ministry of Social Development chief executive lead a review of Police and Child, Youth & Family policies and procedures, including the referral process between the two agencies, to identify any changes that are necessary or desirable to ensure good parents are treated as Parliament intended.  The Commissioner of Police and Ministry of Social Development chief executive will seek an independent person to assist in the conduct of the review and will report back by 1 December 2009.

I think this is useful and desirable. I’d guess that more parents are worried about over-zealous action by CYFS, than they are about actually being prosecuted and convicted for a light smack.

Bring forward the delivery of the report from the Ministry of Social Development chief executive on data and trends and the effect of the law change from the end of the year to late September/early October. The Minister of Social Development will table the report in the House.

As MSD are doing the review, I will be amazed if it amounts to much. But yes useful to have it done earlier.

Invite Police to continue to report on a six-monthly or annual basis for the next three years on the operation of the law, and invite Police to include data on cases where parents or caregivers say the force used on the child was reasonable in the circumstances.

This is useful, as it may lead to a situation where a conclusion can be reached on whether the law is working or not. Now that I think that is the correct test, but it is the test laid down by the PM.

“Cabinet has agreed that if future Police data indicates a worrying trend, the law will be changed to ensure that good New Zealand parents are not criminalised for lightly smacking,” says Mr Key.

I regard “criminalised” as meaning are in breach of the law, not merely that they are not charged or convicted. And the law is very specific that smacking for correctional purposes is absolutely illegal.

The problem we have is that the Government’s test of “Is the law working” is not the test, that many others have. Their test is “Is this a good law”.

So why is the Government, or more specifically the PM, applying the “Is the law working” test? Why doesn’t he just agree to change the law?

Well the simple answer is he does not want to break his word, and that is not a bad thing. Since the compromise the test he promised was “Is the law working” and while I think that is the wrong test, that is what he promised.

So the PM has to balance up keeping his word, with responding to a clear public vote they do not like the law.

If the public are unhappy with no law change, there are a number of ways this could show itself. National could lose support to ACT who want the law changed. This is not a concern to National. Most of the smart people in National want ACT to be higher in the polls than 1%. Losing support to ACT doesn’t change the Government.

It is hard to see Labour picking up support from National on this issue. Labour are still blamed by most for the law, and Labour have little relevance at the moment for most people.

The nightmare scenario is Winston. His caucus had a conscience vote on this issue and Peters voted against. Could Winston use this to campaign in 2011 that National and Labour are the same, and if he gets back in he will force whomever is in Government to scrap the law. In those circumstances Phil Goff would scrap the law to have Winston make him PM.

Colin Espiner blogs on this issue, and he implores John Key to “hold the line”. I suspect Colin’s view is that of almost the entire gallery. I really do wish someone from the gallery could tell me what the problem is with the Borrows amendment. After all Colin says:

I’ve smacked my child, and I don’t want to be prosecuted for it. But I like the law, because it stops child beaters who bash their kids with lengths of hose pipe from getting away with it.

The Borrows amendment would mean Colin is not breaking the law when he smacked his child (assuming it was for correctional purposes) and it would also stop someone hitting their kid with a length of hose pipe.

Is Colin aware that the current law does not explicitly forbid hitting your kid with a length of hose pipe? If done for non-correctional purposes, it may be found to be reasonable force. While the Borrows amendment would rule that out in all circumstances.

It seems to me (and I admit I have a position on this subject) that what most Kiwis are telling the Government is that they don’t want to be told how to discipline their kids.

Yet they are. The Bradford law is explicit. It says you can not use any force at all for correctional purposes. It says you can use undefined reasonable force for good parenting, for preventing disruptive behaviour but not for correction. And that is exactly telling parents how to discipline their kids.

David Beatson blogs at Pundit and concludes:

Third, he should be prepared to consider an amendment to section 59 that might satisfy all parties – one stating clearly that legal parental correction does not include the use of force that results in a child suffering any form of physical injury or sustained distress.

That is basically the Borrows amendment. But despite it giving children greater protection in most areas, it is not acceptable to the 12%. You can not get a compromise that everyone will accept – there is too much gulf between the 88% and the 12%.

Options for changing New Zealand’s approach to smacking children will go to the Cabinet on Monday after New Zealanders voted by 88 per cent that a smack should not be a criminal offence.

Well it is good to see that the voices of 1.4 million New Zealanders won’t just be ignored.

It was muffled by a low turnout of 54 per cent, including 0.3 per cent who spoiled their votes, so even the huge “no” vote fell just short of half of the enrolled electors.

That is not a low turnout for a referendum not held with an election. The referendum that chose MMP for the run-off with FPP had only a 55% turnout. So it was only 1% less than the choice of electoral system.

Prime Minister John Key said in Australia – where he is on an official visit – that voters had said strongly that “they don’t want good parents to be criminalised for a light smack”.

Yes, but that is not just saying they do not want to be prosecuted and convicted. It is saying they do not want it to be a criminal offence.

His own view was that the law was “working as it is now”.

But on Monday, he would take to the Cabinet “options which fall short of changing the law but will provide comfort for parents about this issue”.

There will be a lot of interest in these. However I believe that the law should be changed. The reason is quite simple.

The criminal code is there to reflect the views of the public on what is and is not acceptable behaviour. And almost every provision in the criminal code would have 99% of adult New Zealanders say this should be a criminal offence. 99% say it is wrong to murder, it is wrong to rape, it is wrong to beat someone senseless, it is wrong to steal etc etc.

But here we have 88% of adult New Zealanders (who voted) saying this should not be a criminal offence. If Parliament does not heed the views of voters on this issue, then we have an awful precedent where Parliament is sits as rulers rather than servants of the people, imposing their private criminal code, rather than society’s.

I’m not an advocate that Parliament in every circumstance should do what public opinion wants. The referendum on the number of firefighters was a classic case. Economic issues can be similiar as the public can vote for cutting taxes and increasing spending without the responsibility of having to balance the budget.

But when it comes to our criminal code, I find it hard to offer up a reason why Parliament would insist on criminalising something that not only lacks majority support for being a criminal act, but in fact has massive and sustained opposition.

The public understand this issue. Hell, it has been debated for two to three years. They know exactly what they voted for. The percentage who spoilt their ballot papers was a miniscule 0.3%.

There is a simple solution to all of this. The Borrows/Boscawen amendment/bill. It will in fact provide greater protection to children (as it significantly lowers the level of acceptable force for non-correctional situations) but remove the insulting differentiation between smacking for preventing disruption and for correction.

1,622,150 votes cast which I think is a 54% response rate. That is higher than most local body elections and pretty good for a referendum not held with a general election.

87.6% voted no and 11.8% vote yes.

A massive victory for common sense.

As a proportion of total enrolled adults, 47% voted no, 46% did not vote and only 7% voted yes.

Detailed results are here.

The three electorates with the lowest no votes are:

1. Wellington Central 62.1%
2. Rongotai 69.6%
3. Auckland Central 70.1%

I think it shows how different opinion is within those enclaves, compared to most of the country. Having said that even WC almost had 2:1 voting no.

The electorates with the highest no votes (all 92.6%) are:

1. Waikato
2. Clutha-Southland
3. Hunua
4. Taranaki – King Country

The number of electorates who in each band for the no vote are:

1. 60% – 65% 1
2. 65% – 70% 1
3. 70% – 75% 1
4. 75% – 80% 3
5. 80% – 85% 13
6. 85% – 90% 22
7. 90% – 95% 29

The turnout range varied from 32.8% in Tamaki Makaurau to 65.1% in Bay of Plenty.

It is at the Mecca Cafe, corner of Nuffield Street and Remuera Road, Newmarket. A cash bar will operate.

We all had fun using the referendum question generator to create parodies.

Now what people may not be aware is the Electoral Commission Enrolment Centre filed a takedown notice against the site allowing you to create a parody, as Orange Man is their intellectual property.

New Zealand doesn’t have a specific exemption for parody and satire, so if they had proceeded, the site could have been forced to close.

Most people would agree the Electoral Commission Enrolment Centre should of course be able to take action if a person is using Orange Man to impersonate the Commission Enrolment Centre , or make people think it is a real notice on behalf of the electoral agencies. But most people can work out that a question such as “Should gingas be exterminated by 2011″ is not a real referendum.

Thankfully a compromise has been reached, where in return for explicit reference of the crown copyright, I understand the Electoral Commission Enrolment Centre has withdrawn its objections (which is good of them).

It does highlight though the need for good intellectual property law that both rewards the owner of intellectual property, but also protects fair use and free speech by allowing satire and parody.

Hat Tip: No Right Turn

Anyway here are my questions:

Or should we use the term culled?

Hopefully everyone agrees on that one.

The accent does it for me everytime!

It is a pity that signatures were not gained a bit earlier, so that it would have been even harder for Helen Clark to not hold the vote alongside the general election.

I suspect the referendum will have only around 20% voting in favour of criminalising a smack as part of good parental correction, and 80% against. The turnout will be interesting.

The challenge will be for the Government in office at the time. Refusing to make any change at all to the law could be politically risky. The sensible compromise would be what should have been the compromise all along – the Borrows amendment.

Unless the Prime Minister is planning to go to the country much earlier than everyone expects, her assertion that it is not possible to hold the anticipated citizens-initiated referendum on the anti-smacking law on election day simply does not stack up.

Helen Clark claims there is not enough time for the referendum to run alongside the general election “just in terms of sheer organisation”.

The real reason, of course, is Labour does not want its election campaign sullied by periodic discussion of the smacking law whose “nanny-state” connotations have proved to be so damaging to her and her party.

Yep.

There are good reasons for holding such plebiscites on election day. They are considerably cheaper than stand-alone ones. There is also likely to be a much higher voter turnout.

So to hide the realpolitik, the Prime Minister cites practical difficulties in organising a referendum.

But if that is the case, then it would be impossible to hold a snap election. In case the Prime Minister has forgotten, the 1984 snap election was called by Sir Robert Muldoon just four weeks before polling day. Somehow, electoral officials coped.

In fact, the law covering citizens-initiated referendums specifically allows Parliament to shift the date of a referendum to the day of a snap election. That suggests there is sufficient time and it is not a problem.

Useful piece of research. Basically saying one can do a referendum in 4 – 6 weeks if really pushed. Well with five months to go until the election, there is oodles of time.

Asked why it could not be held at the same time as the election, which must be held by November 15, she replied: “Just in terms of sheer organisation, I do not think that is possible”.

That is simply nonsense. The election date is around five months away, and the Chief Electoral Office is a very capable operator who can handle the addition of a referendum question. They read the newspapers and would have contingency plans for if the petition succeeds and is held with the election.

Everyone knows that Helen is lying when she says it is not logistically possible. The truth is that politically Helen does not want it at the same time as the election, so she is prepared to waste $10 million in order to advantage herself.

However the law provides for them to have another two months to bring it back over the level required, and they should manage this easily.

They needed 285,027 signatures valid signatures. They got 324,216 but a sample found around 11% were not able to be found on the electoral roll plus 1% illegible and 0.5% duplicates.  This is about normal off mory.

So their valid signatures were calculated as 269,500 so they need 16,000 more valid signatures which is probably 20,000 more total signatures to be safe.

I suspect the Government is nervous about having every voter reminded of the law they are primarily identified with, at the very point at which they are voting.