A referendum of no consequence

In August next year there will be a referendum on smacking. But I wonder if the whole issue won't simply fade away.

It is to be a non-binding referendum - which means there is no obligation on politicians to heed it - and the legislative amendments that provoked it were passed in Parliament by a whopping 113 to 7 votes.

Even though a government has changed there is little to indicate an appetite for turning back this particular clock.

After all, we were told at the time it was new Prime Minister John Key's statesman-like, compromise-brokering intervention that saw the Bill passed into law; although during the campaign we had, as at least one wit pointed out, the spectacle of both Helen Clark and Mr Key claiming credit for one of the most "unpopular" pieces of legislation in years.

How can there be such cavernous disconnect between the supposed will of the people and the elected representatives? How can a law which is trumpeted by its adversaries to be opposed by a good 80% or so of the people be supported and passed into the statute book by 95% of our elected representatives?It's quite simple: first, what the law is intended to do and what the law has been vociferously promoted as doing are entirely different; second, the referendum question is framed to favour the latter; third, writing sensible law is a complex business ill-suited to referendums - a reality that MPs who sit on select committees know only too well.

As much as many of our louder public lobbyists would like us to believe otherwise, the business of government and creating legislation is not quite as simple as answering a question "yes" or "no".

We are, of course, talking about the Crimes (Substituted Section 59) Amendment Act 2007; that is, the repeal of section 59 of the Crimes Act, which had previously permitted parental prerogative as a defence in the assault of children.

The amendment took away that defence, but it also made clear that no parent would be victimised for insignificant or minor infringements.

This has largely proved the case.

But that is not how the debate was framed by well-organised opponents and, in some cases, a compliant media which bought into the language of the lobbyists and thus, to a certain extent, their argument.

It became popularly known as the "anti-smacking Bill" and was framed as an invasion of individual rights and an unwarranted attack on the freedom to raise a family as one might choose.

It was the State entering the living-room, or the bedroom or the bathroom, or whichever other room where "smacking" is duly administered.

So, that's what the 300,000 or so people against the anti-smacking law have signed up to.

The actual question on the referendum sheet reads: "Should a smack as part of good parental correction be a criminal offence in New Zealand?"But the politicians won't buy that.

They know only too well that it could equally have been framed, and would have been had the real intent of the law been reflected, as something like: "Should it be legal in New Zealand for parents to assault children?" Which is just a tiny bit different.

The section 59 amendment represented a rallying point for a group of well-organised and well-funded social conservatives cohering round such organisations as Family First, For the Sake of our Children, and the Sensible Sentencing Trust, and their parliamentary proxy, Act New Zealand.

Offended by other progressive legislation including attempts to clean up prostitution law, and the introduction of civil unions, the "anti-smacking" law became a beach-head in an all-out attempt to unseat the Labour-led Government.

Now that it has gone, at least some of the wind will have been taken from the sails of these determined blowhards.

It is early days for the new Administration, but its economic policies will most likely swing back to a more business-oriented, neoliberalist line, while its social policies, with the probable exceptions of crime and punishment, will remain relatively easygoing.

National and its strategists are looking to be in government for the long haul and if there is one lesson they will take from Labour's demise, it is the danger of fighting unnecessary battles.

They have enough on their plates, and in the face of international trends, and New Zealand's unenviable record on domestic violence and child abuse, my guess is that the National-led Government will politely ignore whatever result the referendum throws up.

Mr Key will not want to be stigmatised as the Prime Minister who made it legal to beat defenceless children.

• Simon Cunliffe is assistant editor at the Otago Daily Times.