I’ve not been able to fold any notes or drop any coins into collection buckets for Plunket or Barnardos since running into them in the early phases of their campaign with Sue Bradford to criminalise smacking. They distributed pamphlets falsely claiming that her bill did not do that. I first found one at a Barnardos-organised public discussion. [The ACT website had my speech notes, but now has only a release with an inactive link].

When I first saw the pamplet I called a lawyer involved with their campaign. How, I asked, did they decide that repealing s. 59 did not criminalise smacking (and pushing your child into its room for ‘time out" along with other routine parental ‘assaults’).

His reply was long and embarrassed. Boiled down it was "because though the law would have that effect they do not intend the law to be used that way. Its really to educate parents, so they stop smacking. As people realise that they should not smack their kids, ordinary people won’t be prosecuted".

Sue was less disingenuous. In private, as we travelled the country debating her bill, she made no secret of her intention. She thinks it is wrong to use force on children and she set out to make it a criminal offence. She succeeded.

Listening this morning to Sean Plunket on Morning Report reminded me of those days. He was badgering a spokesman for the referendum question, demanding to know the name of one person criminalised for smacking. The poor guy did not say what he should have – that everyone is criminalised for smacking.

Thats the way criminal law works in rule of law countries. It applies to everyone equally. Whether or not you are an offender does not depend on the mood or political inclinations of those armed with the state’s coercive authority. It depends on what the law says, and what you’ve done. The law is not the plaything or the tool of the ruler. All are subject to it, whether or not the ruler decides not to enforce it, or enforces it the way he’d prefer it was written.

The right of private prosecution is precious for that reason. Otherwise rulers can play favourites, and decide who benefits and who is damaged by the law. In other words the enforcer is given the power to effectively make up the law as they go along.

And that is exactly what the compromise in the current law does. It says everyone who smacks is criminal, but the the Police are to decide which ones pay the price. Not the Courts, not Parliament, but the Police.

The compromise was stupid expedience. The New Zealand legal profession, which finally found its tongue when the Electoral Finance Act fostered political corruption, should have loudly protested that corrosion of the rule of law. Instead it is said to be the brain child of the President of the Law Commission. I hope not.

The anointed generally seem to have decided that their motives are good, so principles can be suspended. Besides, it is always satisfying telling the masses they are wrong, and less worthy than those wielding power. 

So I can understand that Sean Plunket thinks he is on strong ground pestering McCroskie.  Who is McCroskie, to dare annoy the anointed with an unwelcome referendum? Plunket (both versions) can just tell those less worthy that they are not all criminals, those who wield the power will decide who should feel the lash from day to day. It encourages the others to have more respect when they can’t know in advance who will cop it.