Saturday, 5 May 2007

kearney.blogspot - Meet the new bill, same as the old bill

kearney.blogspot - Meet the new bill, same as the old bill

Meet the new bill, same as the old bill

Yesterday's 'consensus' changes don't change the legal effect of the anti-smacking bill at all.

It is always possible for the police to refuse to prosecute on the grounds that there is no public interest. If they can do it when the Prime Minister commits fraud they can certainly do it when a parent lightly smacks their child. However, the police have discretion as to whether they prosecute and the bill does not change that. When opposition MP Shane Ardern drove a tractor up the steps of Parliament, police did choose to prosecute. Now for light smacking, then will be able to prosecute as and when they choose, based on race, gender, previous convictions, political party membership or any other grounds they see fit.

There are a couple of misunderstandings now out there.

The normally sensible Audrey Young in the Herald declares that "The compromise explicitly tells the police not to prosecute inconsequential 'offences'". A simple reading of the text of the amendment is enough to see that this is not so. It explicitly says the police have discretion.

Dave at Big News says: "It is the intent of Parliament that is most important - even more important than the wording of legislation itself." This is a common misconception, even among law students. The intent of Parliament evidenced by Hansard etc. is looked at when an Act is ambiguous (it shouldn't be but that is a story for another day). This Act is not ambiguous. It's the police's choice.

I suppose a defendant might seek judicial review of the decision to prosecute, but judicial review is weighted in favour of the government decision maker, even in criminal cases. To show that no reasonable decision maker would have found there was any public interest at all in prosecuting sounds like a very uphill battle. If the defendant suspects police bias against them for some reason it would be very hard to prove that as well.

I was wondering how Helen Clark could come out of this looking good but her amazing political cunning has manifested itself yet again. Two days ago her party was backing a bill opposed by 80% of New Zealanders. Since then, the bill has not materially changed, the opposition are now supporting it, and a smokescreen has been created that will likely persuade many of those 80% that the bill is not too bad, especially given the compliant nature of the media coverage.

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