Referendum question is questionable

April 16, 2009

Thought should be given to challenging, by way of judicial review, the wording of the question to be put to New Zealanders in a referendum later this year, according to Wellington consultant and child rights expert Robert Ludbrook.

The referendum question is:
Should a smack as part of good parental correction be a criminal offence in New Zealand?

“It will be immediately obvious that the question is questionable,” Robert Ludbrook says.

“The words ‘a smack as part of good parental correction’ are objectionable for several reasons. These are:

• The word ‘good’ before ‘parental correction’ makes a value judgment which predetermines the answer. People answering the question will be drawn to answer ‘no’ on the basis that what is ‘good’ cannot be ‘bad’ (that is, criminal). It would be absurd to answer ‘yes’ because it would saying that an action which is good should be a criminal offence.
• The question as framed is tautologous (OED: a statement that is true of necessity or by its logical form).
• The word ‘good’ in terms of physical punishment is often used to mean ‘severe’: for example, ‘a good hiding’ or ‘six of the best’.
• The term ‘parental correction’ is confusing in the context of the question. Because ‘force by way of correction’ was used in the old s59, it is often used as meaning ‘correction by the use of force’ or physical punishment. To speak of a ‘smack as part of parental correction’ is repetitious and circular.

“How is it that an estimated $10 million of government funds will be spent on a one-off referendum asking a question that is badly drafted and heavily weighted towards a particular answer?

“The answer lies in the Citizens Initiated Referenda Act 1993. Under the act, the wording for the question is determined by the Clerk of the House before signatures are collected for the petition. Section 10(1) sets the criteria for the question posed in the referendum. These criteria require that:

(1) The wording of the precise question to be put to the voters, as determined under s11 of this act by the Clerk of the House of Representatives, (a) Shall be such as to convey clearly the purpose and effect of the indicative referendum; and (b) Shall be such as to ensure that only one of two answers may be given to the question.

“It will be noted that there is no obligation placed on the Clerk of the House to ensure that the question put is balanced or framed in a neutral way.

“It is arguable that the question to be put fails to convey clearly the purpose and effect of the indicative referendum and thought perhaps should be given to challenging the wording by means of judicial review,” Robert Ludbrook says.

“Groups promoting the referendum want politicians to revisit the law and reintroduce a statutory defence.

“The new s59 already provides for a review by Parliament after the amendment has been in force for two years. After 2 July 2009, the chief executive of Child, Youth and Family must provide a report on the effects of the amendment to the Minister of Social Development and this report must be presented to Parliament as soon as practicable [see s59(7)]. As the law change is to be reviewed anyway later this year the referendum seems pointless.

“While citizen’s initiated referenda may be promoted as giving ordinary people a say on important public issues, two points need to be made.

“The first is that although the referendum is about children and their right to be protected from physical assaults, children do not get to vote on the question.

“The second is that it is impossible to condense a complex issue such the acceptability of smacking and hitting children into a question containing 17 words. The question should more correctly have been posed differently.”

Two possible examples of wordings, both having the advantage of clarity and neutrality, would be:

• Should children be entitled to the same protection from physical assaults as everyone else enjoys?
• Should the law allow parents and carers to hit or smack children when they misbehave?

“The law is an important symbol and the new s59 sends a clear message that assaulting children is unlawful.

“The referendum is an opportunity for those who believe that children deserve special protection from parental assaults to express their views by answering ‘yes’ to the question.

“A ‘yes’ vote is a vote for the current law,” Robert Ludbrook says.

Recognised internationally as a child rights expert, Robert Ludbrook is a consultant, former lawyer and contributing author of Unreasonable Force: New Zealand’s journey towards banning the physical punishment of children, published by Save the Children NZ (2008).