March 03, 2007

THE SUE BRADFORD INTERVIEW

smack2wb.jpg
THE INVESTIGATE INTERVIEW

RIGHTS TO SUE

The Green MP behind the smacking law change


INTRO: Sue Bradford is a driven woman. Quite happy to give the police a bit of biffo in days of yore, the activist-turned-MP wants a law change removing parental rights to smack. But in an interview with IAN WISHART, Bradford appears to approve of using reasonable force in some situations, and is now willing to look at a compromise position:


INVESTIGATE: When are you expecting the next round in the smacking debate?

A: The report back date to Parliament is at this stage August, but I suspect it might be put back a bit later because we’ve had over 1,700 submissions.

I haven’t done an analysis, but I do know there are a lot of substantive submissions from major organizations that are in favour of my bill. In terms of organizational submissions it’s looking very good for my side of the debate, in favour of repeal of s59, but of course there are hundreds of submissions from both sides of the debate.

Q: What led you to this, when did you first think, ‘I’ve got to do something about this’?

A: Soon after I came to Parliament. I hold the health, social services and children’s portfolios for the Green Party, and I was just getting a really strong message from groups that work with families and children and domestic violence as well, about the problem of violence against children in this country. It became very clear to me that repealing s59 was something that I might be able to do as an MP that might change things for the better for the children of this country.
So from very early on I wanted to do a private members bill, but in the first couple of years I didn’t because Brian Donnelly from NZ First had his bill in and you can’t have more than one bill on the same subject, so I figured that if Brian wanted to do it I’d just support him. But then he withdrew his bill, because he decided he wanted to go down the route of defining what constitutes ‘reasonable force’ against children, and I thought that was really shocking because I just don’t agree with those arguments at all – the more you define what reasonable force is, the more you’re actually legitimizing various forms of assault against children. And at that point once Brian did that, we wrote our own Green Party bill and put it in the ballot.

Q: In terms of background, you’ve got kids, right?

A: Yeah, I’ve had five children.

Q: Presumably along the way you’ve smacked them from time to time?

A: No, I’ve never hit them or smacked them. Not that I can recall, and I’m sure they’d tell me by now if they thought I was telling lies. I’ve asked them, but honestly I can’t remember ever doing it. It was never in my mind.

I didn’t know the psychology of child-rearing, but I just never wanted to because my children were just so precious to me. I just could not conceive of doing that, that there would be any useful point or that I wanted to.

Really to me, from the time you conceive your baby, and from the time it’s born, it’s out and as an adult my role is to nurture that child and look after it and love it. Hitting it? I just don’t get it. But that’s my personal view, I didn’t learn about the theory of it until later.

I had twins when I was 24, and then I had three more children later on. Of the second three, there’s two years between the first two and then five years between the second and the last one. But I was on the DPB with twins for the first three and a half years of their lives, and that’s not the easiest situation to be in. I was very depressed through some of that time and I know how hard it can be to have kids and to be trying to do your best, sometimes without a lot of money. And how you can get frustrated and angry about some of the things they do, from personal experience! But it’s just that there’s other ways of dealing with it than hitting them.

Q: What did you do?

A: There’s lots of different things that you do as a parent. Part of it for me is that if you think of them as your equal, and I still do, if it’s appropriate – and it depends on their age – you try and explain why you’re angry or why they shouldn’t do something. If you’re going into danger, like running into traffic, pull them away from danger.

Some people have made the argument that my bill, if passed, would mean that if someone pulls their kid away from danger that they would be arrested for assault. It’s a really nonsense argument, because no police or court would ever arrest or convict anyone if they were trying to save someone from danger.

Q: Yeah, you’re absolutely right, there’s a section of the Crimes Act that authorizes force in the defence of another or to rescue them, so that’s not an issue, but I do want to get back to your own kids –

A: I can remember putting them in their room, I can remember getting them to help clean stuff up when they’d made a mess. You can get them to do other things. Say they’re causing a scene somewhere in public, you try and get them away from the scene of the disaster so to speak, you’d try to remove them from where the trouble is rather than attacking them.

Q: How did you do it?

A: Well you’d take them physically away from where the problem is.

Q: Did they ever resist you, screech and complain?

A: There’s certainly been times, the one people talk about is the screaming in the supermarket. I’ve certainly had the screaming in the supermarket and the yelling for treats and all the rest of it. I think that must happen to all parents, but it’s how you deal with it, whether you hit them or swear at them cause they’re doing something. I think the best thing is to get them out of there as fast as possible.

Q: I think most mothers would be saying, ‘Yes, exactly,’, but I’m just trying to nut out in terms of your own kids that they were no better nor worse than anyone else’s.

A: No, I’m not saying they were angels at all, and I wasn’t some sort of trained childcare professional or anything like that, I was just trying to bring them up as best I could. The fundamental attitude I had was that from the minute I first knew I was having twins, and later had them, I just loved them so much I felt it was my job to look after and nurture them to the best of my abilities and to protect them from danger and bring them up as well as I could in doing that. The thought of being physically violent towards them in any way at all never crossed my mind.

Q: What about when the twins were scrapping amongst themselves –

A: Which they did a lot of!

Q: What did you do?

A: Well, you ask them to stop or, in a loud voice, tell them to stop, or you can separate them and put them in their room, although often that wouldn’t be a good thing. But mainly I remember trying to tell them ‘this is not a good idea because…’
Once they reach the age when they can have any reason at all – of course when they’re tiny they don’t have that – but kids gradually reach the age of reason and the sooner you start explaining things to them, the better.
To me, you don’t need to hit them or smack them to make the explanation.

Q: But what I’m trying to drill down to here is, when your children hit the terrible twos, and they can’t be reasoned with, they just ‘want, want, want’ now, ‘get out my way’, whatever, what did you do, how did you enforce the point.

A: Well it depends on the situation, you just deal with it at the time. As a parent you’re much physically bigger than they are, so for example if they won’t put their sweater on and you want them to put their sweater on, well you can physically put it on them. And if they won’t go into their bedrooms you can physically put them into their bedrooms. Yeah, when they’re that age you can physically manage them better than when they’re 14, but stages of child-rearing and what you can do are so different depending on age.

You can tell them not to do it. I certainly would have yelled quite often! You can put them in their room or take them away from situations. You can try and distract them.

Q: Let’s say you’re taking little ones into their room, and they’re kicking and screaming while you’re dragging them in, were you comfortable with that?

A: Yes, but, yes, but I mean, but when kids are little you do physically have to look after them and make sure they’re safe, and that’s part of a parent’s job. If safe means putting them in a cot or safe means putting them in their room, but that’s not hitting children, that’s just looking after them.

Q: I’ll come back to it, but I think most parents, like you, have yelped at their kids, but aren’t you worried that if a simple smack disappears as a form of discipline and parents feel they can’t do that, then they will simply take out their frustrations with much more verbal abuse of children in many ways?

A: Well that would be awful, and I think that verbal abuse, psychological abuse, is just as bad in many ways as physical abuse, and it can actually be worse sometimes – the psychological impacts of how parents can freeze out their children, or abuse their children or call them names, or be really denigrating and humiliating to their children verbally – that can actually have a worse effect in some cases than physical violence.

Repeal of s59 is only one small strand of what we need to do. A big part of this is actually putting sufficient resource into support for all the community and church groups and other organizations that help to train parents on different techniques of child-rearing that don’t involve either physical or psychological violence. And also into the organizations that provide support to families in trouble where the parent or parents are really desperate: ‘How can I bring up this kid, what can I do about this kid that’s causing me all these problems?’
At the same time as repealing s59 we have to give a lot more support to parents and families. It’s not something that stands alone.

But why s59 is the key is because it is saying is the State legitimizes a degree of violence unspecified against our children.

Q: Yeah, I understand the legal perspective you have of it. In terms of verbal abuse, I’ve seen kids who are browbeaten without a finger ever having been laid on them –

A: Reduced to a sense of nothingness –

Q: And their spirits are broken. Why can’t the law tackle that then?

A: I don’t know what the law can do about that particularly. It’s certainly something that should be tackled with education and training and support from parents, and I suppose broader public education campaigns as well.

Q: I’m going to play Devil’s advocate with you on the point: if, as I suspect, there are more cases of children being verbally abused and broken-hearted by that sort of thing than probably there are kids where smacking has turned into physical abuse –

A: I don’t know if you can say, I mean the statistics on abuse and neglect of our children are –

Q: Yeah, but I think the difference is, they’re not abused per se because there’s a decent pair of parents who smacked them. They’re abused because there are parents, or a parent, who just doesn’t care. And the parenting skills are just so poor, and the parent probably doesn’t know what the law is nor care.

A: That’s right, but the fact that we have a defence on our books of reasonable force, it adds to that culture that accepts violence, or that hitting children or smacking children is OK. For some parents, and you’re right – the less equipped a parent is to cope the more likely they are to do it – but for example the fathers or mothers who shake their babies to discipline them because they pissed on the floor, and then the baby is badly injured or died – even though there’s nothing about the law in that parent’s head, it’s an extension of our culture which we’ve had since settlement that says it’s actually a parent’s right to physically hit or beat or smack their child to try and get them to do what you as an adult want them to do.

It’s that thinking – so many kids are brought up in a family that believes that they should be smacked, beaten or hit when they are kids, they grow up with the idea of a parent’s right to beat, and when they have their babies it’s transmitted from generation to generation, and that cycle is what we’ve got to break.

Q: Were you ever smacked as a child?

A: Yeah, but not much.

Q: So it didn’t screw you up?

A: (Bursts out laughing) I have no idea! You’re the first one to ever ask me that question, and I really don’t know the answer!

Q: What I am going to ask you is the one you’ve probably been asked a million times, but it is a fair question and it is this: If we got down to the core of it you’d acknowledge that the real problem is not with the traditional two parent family who take a keen interest in the welfare of their kids, supporting them, loving them. It’s the sort of family you’d see in Once Were Warriors where some of the really nasty abuse is happening. Do you recognize that there is a fundamental difference between a smack on the backside or the hand that doesn’t extend into a full-on beating – and parents who are just criminals and beat the proverbial out of their children? You must, you would acknowledge there is a difference?

A: Of course. I mean there’s a whole spectrum of assault and violence, with murder at one end and a light smack at the other end. That spectrum is there all the time. Trying to repeal reasonable force is driven by the fact that in a number of court cases as you know people have gotten away with actually severely beating their children in my point of view.

Like the case in Timaru last year, and a number of other cases.

Q: Just querying that, did they actually use the s59 defence in that one?

A: Yes, yes, they did. I wasn’t actually in court but that’s my understanding. The woman who used a horse crop and a cane on a number of occasions on a 12 year old boy. That was the Timaru court case last year and it’s my understanding that s59 was used as a defence.

Q: Some of the blog sites have pointed out that it might more have centred on self-defence, that the kid was quite large and quite aggressive.

A: That may, I mean, I wasn’t in the court so I really don’t feel able to speak with authority on it. I know that was an element of the case, that that was part of the mother’s defence, but I’m pretty damn sure s59 was part of her defence as well.

Q: Obviously you are not looking to intentionally outlaw time out, or a parent who has to physically manhandle a child into a room, are you?

A: No, or who physically removes or saves a child from some danger. And just on that, I’m not seeking to outlaw smacking either, which is a myth that’s being driven up by my opponents. All I’m doing with my bill is seeking to repeal one clause of an Act.

If s59 was repealed, and say some mean person dobbed in a mother for lightly smacking her child – say that happened, which is the fear that’s being driven up –

Q: It’s happened overseas, yeah-

A: Yeah, and so the police come and investigate the mother who smacked her five year old child (if they come at all, because we know they’re already overworked) but they’re going to look and say well, how severe was that? What damage was done? What’s happened here? Which is what they’re supposed to do in everything they investigate.

I think, during the process of select committee hearings which we’re about to go into on this Bill, the one thing I really hope that as a select committee, if we want to get this Bill through, is that we can make very clear that it is not the intention of me or Parliament to suddenly have all the parents who lightly smack their children subject to arrest or imprisonment or anything like that. It’s not my intention, it’s not the intention of anyone I know, it’s not the intention of any other MP. It’s a myth.

Q: Did the Greens get any independent legal analysis on what the repeal of s59 would mean?

A: I’ve certainly talked with a number of lawyers over the past year and there will be a number of submissions dealing with this.

Q: Family lawyers, criminal lawyers? Which?

A: Both. I’ve talked to both.

Q: The reason I ask is because we’ve done a survey of top QCs on this point: because s59 is a repeal of a defence, then technically if there’s unwanted touching or a smack, it is technically an assault, just like two people on the street.

A: That’s a very good analogy, because in fact I’m asking for equity for children like what happens to adults now. If an adult is assaulted to the point that it’s a problem, the police always have to make that judgement about how severe that assault was. At the moment if the husband assaults his wife, he has no defence unless it is self-defence, whereas if he assaults his child he has a defence. And that’s inequity.

Q: But surely no normal jury would see the Delcelia Whittaker case as an ordinary smack.

A: No, not at all. It is a spectrum. But it does happen in all parts of society.

Q: Getting back to my question, the general consensus of the QCs is that physically putting a child in time out, or physically grabbing your child, is an assault in the same way as if you grab somebody on the street.

A: Which is a technical assault. That’s true, that’s absolutely true. But all that case law that currently exists would be applied, as it is now.

Q: In court, and I think the Louise Nicholas case proves the point, judges tell juries to consider the letter of the law. And if the letter is simply that it is an assault, the jury may have no option but to convict.

A: Yeah, but juries also make decisions on the facts of the case. To think that police would arrest and prosecute someone for lightly smacking their kid or putting them into a room for timeout, I think that would be ridiculous. But on the other hand if a 14 year old girl went to the police and said ‘Look, my father smacked me and I felt this was inappropriate and was really hurt and offended physically, sexually etc’, I think that would be a case to investigate.

But that’s why I find it so hard. This is the job of the police and the courts every day, to make those kinds of judgements: is this a mother, lightly smacking her child when they screamed in a supermarket, or is it something else going on here that’s worthy of the police attention and often other agencies as well.

Those judgements are what the poor bastards that work on the front lines of police, CYFS and the health services have to face constantly. That’s not going to change.

Q: Whilst one can see the heart behind it, is a simple repeal of s59 too blunt an instrument? Does there need to be some modification about appropriate force?

A: Some members of parliament are very keen to amend my Bill so that reasonable force is defined, and I’m sure there’ll be lots of submissions saying that. But once you start looking at that, what it’s saying is that you can hit a kid between this age and this age, you can beat them about the body, but not about the head, you can beat them with an open hand on the buttocks but not with an implement – to me, it gets really gruesome and it’s like defining methods of torture. If I did anything to a policeman I’d be arrested tomorrow – and that’s happened to me on more than one occasion. I could lightly assault a big beefy cop and go to jail, but if I do it to a child I’ve got every defence in the world.

Q: I’m flying a kite here, but don’t you really need to say somewhere in the Act itself, ‘No force is to be used on a child, except that this is not intended to suggest that a smack, or a session of time out is an offence’?

A: What you’re saying there Ian is where I think we need to go. How we do it…it’s going to be up to 121 MPs. I think it’s very likely going to be necessary to make it clear that that’s not the intention of the Bill.

Q: Perhaps in the introduction to the Act, or the definition of assault?

A: Well in some place. I have talked to lawyers about it, and I’m very supportive of doing it if it means the Bill can go through.

Posted by Ian Wishart at 05:22 PM | Comments (1)

THE SUE BRADFORD INTERVIEW

smack2wb.jpg
THE INVESTIGATE INTERVIEW

RIGHTS TO SUE

The Green MP behind the smacking law change


INTRO: Sue Bradford is a driven woman. Quite happy to give the police a bit of biffo in days of yore, the activist-turned-MP wants a law change removing parental rights to smack. But in an interview with IAN WISHART, Bradford appears to approve of using reasonable force in some situations, and is now willing to look at a compromise position:


INVESTIGATE: When are you expecting the next round in the smacking debate?

A: The report back date to Parliament is at this stage August, but I suspect it might be put back a bit later because we’ve had over 1,700 submissions.

I haven’t done an analysis, but I do know there are a lot of substantive submissions from major organizations that are in favour of my bill. In terms of organizational submissions it’s looking very good for my side of the debate, in favour of repeal of s59, but of course there are hundreds of submissions from both sides of the debate.

Q: What led you to this, when did you first think, ‘I’ve got to do something about this’?

A: Soon after I came to Parliament. I hold the health, social services and children’s portfolios for the Green Party, and I was just getting a really strong message from groups that work with families and children and domestic violence as well, about the problem of violence against children in this country. It became very clear to me that repealing s59 was something that I might be able to do as an MP that might change things for the better for the children of this country.
So from very early on I wanted to do a private members bill, but in the first couple of years I didn’t because Brian Donnelly from NZ First had his bill in and you can’t have more than one bill on the same subject, so I figured that if Brian wanted to do it I’d just support him. But then he withdrew his bill, because he decided he wanted to go down the route of defining what constitutes ‘reasonable force’ against children, and I thought that was really shocking because I just don’t agree with those arguments at all – the more you define what reasonable force is, the more you’re actually legitimizing various forms of assault against children. And at that point once Brian did that, we wrote our own Green Party bill and put it in the ballot.

Q: In terms of background, you’ve got kids, right?

A: Yeah, I’ve had five children.

Q: Presumably along the way you’ve smacked them from time to time?

A: No, I’ve never hit them or smacked them. Not that I can recall, and I’m sure they’d tell me by now if they thought I was telling lies. I’ve asked them, but honestly I can’t remember ever doing it. It was never in my mind.

I didn’t know the psychology of child-rearing, but I just never wanted to because my children were just so precious to me. I just could not conceive of doing that, that there would be any useful point or that I wanted to.

Really to me, from the time you conceive your baby, and from the time it’s born, it’s out and as an adult my role is to nurture that child and look after it and love it. Hitting it? I just don’t get it. But that’s my personal view, I didn’t learn about the theory of it until later.

I had twins when I was 24, and then I had three more children later on. Of the second three, there’s two years between the first two and then five years between the second and the last one. But I was on the DPB with twins for the first three and a half years of their lives, and that’s not the easiest situation to be in. I was very depressed through some of that time and I know how hard it can be to have kids and to be trying to do your best, sometimes without a lot of money. And how you can get frustrated and angry about some of the things they do, from personal experience! But it’s just that there’s other ways of dealing with it than hitting them.

Q: What did you do?

A: There’s lots of different things that you do as a parent. Part of it for me is that if you think of them as your equal, and I still do, if it’s appropriate – and it depends on their age – you try and explain why you’re angry or why they shouldn’t do something. If you’re going into danger, like running into traffic, pull them away from danger.

Some people have made the argument that my bill, if passed, would mean that if someone pulls their kid away from danger that they would be arrested for assault. It’s a really nonsense argument, because no police or court would ever arrest or convict anyone if they were trying to save someone from danger.

Q: Yeah, you’re absolutely right, there’s a section of the Crimes Act that authorizes force in the defence of another or to rescue them, so that’s not an issue, but I do want to get back to your own kids –

A: I can remember putting them in their room, I can remember getting them to help clean stuff up when they’d made a mess. You can get them to do other things. Say they’re causing a scene somewhere in public, you try and get them away from the scene of the disaster so to speak, you’d try to remove them from where the trouble is rather than attacking them.

Q: How did you do it?

A: Well you’d take them physically away from where the problem is.

Q: Did they ever resist you, screech and complain?

A: There’s certainly been times, the one people talk about is the screaming in the supermarket. I’ve certainly had the screaming in the supermarket and the yelling for treats and all the rest of it. I think that must happen to all parents, but it’s how you deal with it, whether you hit them or swear at them cause they’re doing something. I think the best thing is to get them out of there as fast as possible.

Q: I think most mothers would be saying, ‘Yes, exactly,’, but I’m just trying to nut out in terms of your own kids that they were no better nor worse than anyone else’s.

A: No, I’m not saying they were angels at all, and I wasn’t some sort of trained childcare professional or anything like that, I was just trying to bring them up as best I could. The fundamental attitude I had was that from the minute I first knew I was having twins, and later had them, I just loved them so much I felt it was my job to look after and nurture them to the best of my abilities and to protect them from danger and bring them up as well as I could in doing that. The thought of being physically violent towards them in any way at all never crossed my mind.

Q: What about when the twins were scrapping amongst themselves –

A: Which they did a lot of!

Q: What did you do?

A: Well, you ask them to stop or, in a loud voice, tell them to stop, or you can separate them and put them in their room, although often that wouldn’t be a good thing. But mainly I remember trying to tell them ‘this is not a good idea because…’
Once they reach the age when they can have any reason at all – of course when they’re tiny they don’t have that – but kids gradually reach the age of reason and the sooner you start explaining things to them, the better.
To me, you don’t need to hit them or smack them to make the explanation.

Q: But what I’m trying to drill down to here is, when your children hit the terrible twos, and they can’t be reasoned with, they just ‘want, want, want’ now, ‘get out my way’, whatever, what did you do, how did you enforce the point.

A: Well it depends on the situation, you just deal with it at the time. As a parent you’re much physically bigger than they are, so for example if they won’t put their sweater on and you want them to put their sweater on, well you can physically put it on them. And if they won’t go into their bedrooms you can physically put them into their bedrooms. Yeah, when they’re that age you can physically manage them better than when they’re 14, but stages of child-rearing and what you can do are so different depending on age.

You can tell them not to do it. I certainly would have yelled quite often! You can put them in their room or take them away from situations. You can try and distract them.

Q: Let’s say you’re taking little ones into their room, and they’re kicking and screaming while you’re dragging them in, were you comfortable with that?

A: Yes, but, yes, but I mean, but when kids are little you do physically have to look after them and make sure they’re safe, and that’s part of a parent’s job. If safe means putting them in a cot or safe means putting them in their room, but that’s not hitting children, that’s just looking after them.

Q: I’ll come back to it, but I think most parents, like you, have yelped at their kids, but aren’t you worried that if a simple smack disappears as a form of discipline and parents feel they can’t do that, then they will simply take out their frustrations with much more verbal abuse of children in many ways?

A: Well that would be awful, and I think that verbal abuse, psychological abuse, is just as bad in many ways as physical abuse, and it can actually be worse sometimes – the psychological impacts of how parents can freeze out their children, or abuse their children or call them names, or be really denigrating and humiliating to their children verbally – that can actually have a worse effect in some cases than physical violence.

Repeal of s59 is only one small strand of what we need to do. A big part of this is actually putting sufficient resource into support for all the community and church groups and other organizations that help to train parents on different techniques of child-rearing that don’t involve either physical or psychological violence. And also into the organizations that provide support to families in trouble where the parent or parents are really desperate: ‘How can I bring up this kid, what can I do about this kid that’s causing me all these problems?’
At the same time as repealing s59 we have to give a lot more support to parents and families. It’s not something that stands alone.

But why s59 is the key is because it is saying is the State legitimizes a degree of violence unspecified against our children.

Q: Yeah, I understand the legal perspective you have of it. In terms of verbal abuse, I’ve seen kids who are browbeaten without a finger ever having been laid on them –

A: Reduced to a sense of nothingness –

Q: And their spirits are broken. Why can’t the law tackle that then?

A: I don’t know what the law can do about that particularly. It’s certainly something that should be tackled with education and training and support from parents, and I suppose broader public education campaigns as well.

Q: I’m going to play Devil’s advocate with you on the point: if, as I suspect, there are more cases of children being verbally abused and broken-hearted by that sort of thing than probably there are kids where smacking has turned into physical abuse –

A: I don’t know if you can say, I mean the statistics on abuse and neglect of our children are –

Q: Yeah, but I think the difference is, they’re not abused per se because there’s a decent pair of parents who smacked them. They’re abused because there are parents, or a parent, who just doesn’t care. And the parenting skills are just so poor, and the parent probably doesn’t know what the law is nor care.

A: That’s right, but the fact that we have a defence on our books of reasonable force, it adds to that culture that accepts violence, or that hitting children or smacking children is OK. For some parents, and you’re right – the less equipped a parent is to cope the more likely they are to do it – but for example the fathers or mothers who shake their babies to discipline them because they pissed on the floor, and then the baby is badly injured or died – even though there’s nothing about the law in that parent’s head, it’s an extension of our culture which we’ve had since settlement that says it’s actually a parent’s right to physically hit or beat or smack their child to try and get them to do what you as an adult want them to do.

It’s that thinking – so many kids are brought up in a family that believes that they should be smacked, beaten or hit when they are kids, they grow up with the idea of a parent’s right to beat, and when they have their babies it’s transmitted from generation to generation, and that cycle is what we’ve got to break.

Q: Were you ever smacked as a child?

A: Yeah, but not much.

Q: So it didn’t screw you up?

A: (Bursts out laughing) I have no idea! You’re the first one to ever ask me that question, and I really don’t know the answer!

Q: What I am going to ask you is the one you’ve probably been asked a million times, but it is a fair question and it is this: If we got down to the core of it you’d acknowledge that the real problem is not with the traditional two parent family who take a keen interest in the welfare of their kids, supporting them, loving them. It’s the sort of family you’d see in Once Were Warriors where some of the really nasty abuse is happening. Do you recognize that there is a fundamental difference between a smack on the backside or the hand that doesn’t extend into a full-on beating – and parents who are just criminals and beat the proverbial out of their children? You must, you would acknowledge there is a difference?

A: Of course. I mean there’s a whole spectrum of assault and violence, with murder at one end and a light smack at the other end. That spectrum is there all the time. Trying to repeal reasonable force is driven by the fact that in a number of court cases as you know people have gotten away with actually severely beating their children in my point of view.

Like the case in Timaru last year, and a number of other cases.

Q: Just querying that, did they actually use the s59 defence in that one?

A: Yes, yes, they did. I wasn’t actually in court but that’s my understanding. The woman who used a horse crop and a cane on a number of occasions on a 12 year old boy. That was the Timaru court case last year and it’s my understanding that s59 was used as a defence.

Q: Some of the blog sites have pointed out that it might more have centred on self-defence, that the kid was quite large and quite aggressive.

A: That may, I mean, I wasn’t in the court so I really don’t feel able to speak with authority on it. I know that was an element of the case, that that was part of the mother’s defence, but I’m pretty damn sure s59 was part of her defence as well.

Q: Obviously you are not looking to intentionally outlaw time out, or a parent who has to physically manhandle a child into a room, are you?

A: No, or who physically removes or saves a child from some danger. And just on that, I’m not seeking to outlaw smacking either, which is a myth that’s being driven up by my opponents. All I’m doing with my bill is seeking to repeal one clause of an Act.

If s59 was repealed, and say some mean person dobbed in a mother for lightly smacking her child – say that happened, which is the fear that’s being driven up –

Q: It’s happened overseas, yeah-

A: Yeah, and so the police come and investigate the mother who smacked her five year old child (if they come at all, because we know they’re already overworked) but they’re going to look and say well, how severe was that? What damage was done? What’s happened here? Which is what they’re supposed to do in everything they investigate.

I think, during the process of select committee hearings which we’re about to go into on this Bill, the one thing I really hope that as a select committee, if we want to get this Bill through, is that we can make very clear that it is not the intention of me or Parliament to suddenly have all the parents who lightly smack their children subject to arrest or imprisonment or anything like that. It’s not my intention, it’s not the intention of anyone I know, it’s not the intention of any other MP. It’s a myth.

Q: Did the Greens get any independent legal analysis on what the repeal of s59 would mean?

A: I’ve certainly talked with a number of lawyers over the past year and there will be a number of submissions dealing with this.

Q: Family lawyers, criminal lawyers? Which?

A: Both. I’ve talked to both.

Q: The reason I ask is because we’ve done a survey of top QCs on this point: because s59 is a repeal of a defence, then technically if there’s unwanted touching or a smack, it is technically an assault, just like two people on the street.

A: That’s a very good analogy, because in fact I’m asking for equity for children like what happens to adults now. If an adult is assaulted to the point that it’s a problem, the police always have to make that judgement about how severe that assault was. At the moment if the husband assaults his wife, he has no defence unless it is self-defence, whereas if he assaults his child he has a defence. And that’s inequity.

Q: But surely no normal jury would see the Delcelia Whittaker case as an ordinary smack.

A: No, not at all. It is a spectrum. But it does happen in all parts of society.

Q: Getting back to my question, the general consensus of the QCs is that physically putting a child in time out, or physically grabbing your child, is an assault in the same way as if you grab somebody on the street.

A: Which is a technical assault. That’s true, that’s absolutely true. But all that case law that currently exists would be applied, as it is now.

Q: In court, and I think the Louise Nicholas case proves the point, judges tell juries to consider the letter of the law. And if the letter is simply that it is an assault, the jury may have no option but to convict.

A: Yeah, but juries also make decisions on the facts of the case. To think that police would arrest and prosecute someone for lightly smacking their kid or putting them into a room for timeout, I think that would be ridiculous. But on the other hand if a 14 year old girl went to the police and said ‘Look, my father smacked me and I felt this was inappropriate and was really hurt and offended physically, sexually etc’, I think that would be a case to investigate.

But that’s why I find it so hard. This is the job of the police and the courts every day, to make those kinds of judgements: is this a mother, lightly smacking her child when they screamed in a supermarket, or is it something else going on here that’s worthy of the police attention and often other agencies as well.

Those judgements are what the poor bastards that work on the front lines of police, CYFS and the health services have to face constantly. That’s not going to change.

Q: Whilst one can see the heart behind it, is a simple repeal of s59 too blunt an instrument? Does there need to be some modification about appropriate force?

A: Some members of parliament are very keen to amend my Bill so that reasonable force is defined, and I’m sure there’ll be lots of submissions saying that. But once you start looking at that, what it’s saying is that you can hit a kid between this age and this age, you can beat them about the body, but not about the head, you can beat them with an open hand on the buttocks but not with an implement – to me, it gets really gruesome and it’s like defining methods of torture. If I did anything to a policeman I’d be arrested tomorrow – and that’s happened to me on more than one occasion. I could lightly assault a big beefy cop and go to jail, but if I do it to a child I’ve got every defence in the world.

Q: I’m flying a kite here, but don’t you really need to say somewhere in the Act itself, ‘No force is to be used on a child, except that this is not intended to suggest that a smack, or a session of time out is an offence’?

A: What you’re saying there Ian is where I think we need to go. How we do it…it’s going to be up to 121 MPs. I think it’s very likely going to be necessary to make it clear that that’s not the intention of the Bill.

Q: Perhaps in the introduction to the Act, or the definition of assault?

A: Well in some place. I have talked to lawyers about it, and I’m very supportive of doing it if it means the Bill can go through.

Posted by Ian Wishart at 05:22 PM | Comments (1)

THE SMACKING DEBATE: QC'S OPINIONS

supernanny.jpg
SUPERNANNY “BUSTED”Top QCs warn s59 repeal would make even ‘time out’ a crime

INTRO: It is now a matter of public record that repealing s59 of the Crimes Act will make parents technically guilty of assault if they smack their children, but Investigate has discovered something even the Bill’s supporters hadn’t considered: it will also open parents to prosecution if they physically put a child into time out. IAN WISHART interviewed leading Queens Counsel about the legal dangers of the anti-smacking Bill:

To say it is shaping up as one of the ‘social engineering’ fights of the Government’s third term would be an understatement. The Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill promoted by Green MP Sue Bradford is pushing for a simple repeal of s59, the clause that gives parents a defence of “reasonable force” for the purposes of disciplining a child’s behaviour.
In a letter to the organization Family Integrity last year, police headquarters not only confirmed that even a simple smack would be an assault, but suggested that because the Crimes Act already has increased penalties for crimes against children, an assault on a child would be more serious than an assault on an adult, in police eyes.
But while commentators on both sides of the divide have discussed whether police would lay charges or not, no one has explored whether other forms of discipline could also run foul of the proposed new law.
To explore that specific issue, we asked a number of top QCs to comment on whether a parent who carried or dragged a resistant child to ‘time out’ would also be breaking the law:


STUART GRIEVE, QC:

I would be opposed to the [repeal of s59] because I think that the provision works entirely adequately as it is. If one puts political correctness to one side, and just deals with these cases on an objective and pragmatic basis, the law has stood the test of time and I would have thought most reasonable people would know full well when the line is crossed between reasonable discipline on the one hand, and crossing that line on the other.

So I would be opposed to it, and as one looks at the test now it is left to a jury to determine reasonableness. And being a fan of jury trials anyway, and being a fan of the commonsense of juries, that’s where I would leave it.


Q: What if a parent forcibly manhandles a 7 year old to another room to enforce time out. In your experience, could that be a prima facie assault?

A: Unquestionably! Not under the present statute of course, but those protections aside any unwanted touching, even threat of touching, can be an assault. It is so defined in the Crimes Act.

Q: What about the act of shutting a child in a bedroom or a garage for ten minutes to calm down. If the protection of reasonable force is removed, could that open a parent up to punishment for forcible detention?

A: Could do, I’d have to look at that more closely because that is a technical question, but it could do. If you remove the protection then you’re left with a child being a normal individual, and it would be no different from doing that to some stranger, I suppose.

Q: What advice would you give to law makers?

A: My advice would be ‘don’t repeal it’. I would be asking for examples where it doesn’t work well, or where it hasn’t worked.

Q: Do you have a fear that it could be used in marital break-ups, or as a reason to get CYFS involved in a family?

A: Well it could do. Although I don’t pretend to be a family lawyer I’m well aware of the fact that in these situations as you describe them, frequently false allegations are leveled, generally by women against males, and allegations of sexual abuse and that sort of thing in order to win custody battles and so forth. This will simply give them more ammunition.

GRANT ILLINGWORTH, QC

The thing that tends to mask the situation in the NZ environment is the fact that questions of assault as far as civil law are concerned have become less prominent because of the accident compensation legislation. As you will be aware, under the ACC legislation you can’t generally sue someone for personal injury caused by accident, and accident is widely defined to include situations in which you’re assaulted by somebody. So in New Zealand, even serious assaults don’t get before the courts except in quite unusual situations as a matter of civil liability.

Now, s59 is dealing only with criminal liability, and I suspect it is a lot more complicated than it appears on the surface, because taking away a criminal law defence doesn’t necessarily change the underlying civil law principles. So there are two layers that must be considered. One is the criminal layer, the other is the civil layer. And in order to sort that situation one would have to give it quite a bit of thought and work through the principles.

But to confine the analysis to the criminal law only, if you simply take away a defence of reasonable force then every touching of another person becomes an assault, and you then open up a vast area of potentially criminal conduct. You criminalize a whole lot of conduct which to normal people would be utterly ridiculous to criminalize in relation to the way you treat your kids.

So I think it is a very important step, and I think it is something that has serious, wide-ranging implications and something that has to be considered very very carefully indeed.

I think you do have to distinguish between civil and criminal. Conduct that is not regarded as criminal, or not pursued and charged as criminal, can be taken into account even now in a Family Court context. It doesn’t really matter to the Family Court whether you characterise something as criminal or not criminal, it’s a question of whether it represents proper treatment of the child. It’s going to the fundamental question of what is for the welfare of the child, what is in the child’s best interests. They’re looking at the situation through a different legal telescope.

I think the real problem is that arguably almost every form of physical contact with your children becomes an assault as a matter of the criminal law. If you take away s59, that’s the issue.

And if the child uses force against you, what force can you use against the child? That’s the real crunch issue. There may be lots of situations in which, very appropriately, a parent should avoid using force because it is unnecessary to do so. But there are some situations in which it is necessary and those situations would not necessarily fall within s48, which is the self defence provision.

That’s one area in which use of force in self defence and defence of another is justified and will remain justified. But if you think about it, children can use force against their parents, and the parents won’t be able to use force against the children, unless it is self defence.

S48 says ‘Everyone is justified in using, in the defence of himself or another, such force as in the circumstances he believes them to be it is reasonable to use.’ But it’s got to be in the defence of himself or another. It can’t simply be a child doing something naughty which involves the use of force, and preventing the child – for example – smashing up the living room.

It’s not the defence of yourself or the defence of another. If your child goes beserk and starts smashing the furniture you might not be allowed to touch him. And if that’s the result of revoking s59 – that you’re exposed to a criminal charge of assault if you restrain a child in those circumstances, then that’s completely nuts.

Q: Advice to the legislators as they consider this?

A: Obviously it will go to a select committee and they’ll have the task of going through the various scenarios that could arise if this measure is adopted. That’s the appropriate process, and the normal process when an important change is being considered.

But I think from my own part, having given it only a relatively short period of consideration, that simply to wipe out s59 could create some situations which are completely undesirable.

NICK DAVIDSON, QC

Q: The police are already on record as saying any smack would be a prima facie assault. Presumably that means that any physical contact for the purposes of discipline, such as a mother taking her child by the arm and forcing him into time out, would also be a prima facie assault?

A: Theoretically that must be right. It would come down to an exercise of discretion. But there could be savings in the legislation, such as safety of the child or removing a child from harm’s way. Where it get’s sticky is the very point you mentioned: if someone actually picks up a child and carts them off, because the difference between that and admonishing them, or hitting them, is so marginal as a matter of law I think it can only be dealt with by discretion. I think it’s a very significant point.

Someone who will simply not leave a situation where the parents are sitting outside in the car, waiting for the child to get in the car, and having difficulties because the child is refusing to get in the car, what’s a parent supposed to do? Leave the child on the side of the road, or pick them up and physically put them in the car?

Now if that’s not for their care and protection, what is it? There’s no defence to it.

And I think there’s a failure to recognize the difference between smacking as such, and physically taking, with some force, children – because they can be quite big at 11 or 12 and you might have to deal with them in that way.

To me the question is, if you cannot discipline a child physically, you remove the defence to what is otherwise an assault, the physical handling of a child of itself is not necessarily a discipline and would be treated like any other contact between two people. But in a relationship between parent and child there will often have to be physical interventions.

Now you could not possibly classify an assault as a deliberate application of force to a child, where that is to save the child, or take it to safety. You could not in my view possibly treat that as an assault where the child, for the child’s own sake, should be removed from one place to another. Where a child is out of control, for example.

So I think there must become a series of defences available where what is done is not for the purposes of inflicting force, but is a warrant to apply force for reasons which are for the good of the child.

Now we don’t really have that available to us in law, but if you take assault as an example: you step in to assault someone else to defend someone – that’s defence of another, and that’s a defence. You step in to save someone from committing suicide, that’s a defence. You step in to save someone from any act of self-harm, or the danger of walking across a road against traffic – that’s a defence.

The reason it’s a defence is that it’s not an intentional application of force except by the warrant that you have to do so for the good of that person. Now I think that will become the proper test in law – that where the force is applied for the good of that child, not as a discipline but in order to protect the child in some way, or deal with the child where the child is out of control, but not to inflict force for the sake of that, is the distinction to be drawn as a matter of law.

Q: Grant Illingworth feels that where there are going to be issues is where your child is out of control – not necessarily a danger to themselves or anyone else – but nevertheless –

A: Impossible to control!

Q: …impossible.

A: I think that is exactly the point! The time out situation is the key, because if you narrow down all the examples that you mention, it comes down to this proposition: to protect the child? Absolute defence. To discipline the child? No. To take the child out of a situation where it is causing pandemonium? Questionable, because we don’t have a marked defence on the statute for that purpose. That’s why I think the law will develop a defence that, for the sake of the child as much as for the whole family, the child is removed from a situation where the child for example is just screaming its head off and is just so out of control they’re at a risk of harm.

The example you give, of trashing a house, is much more difficult, because the law in my view must allow a colour of right to prevent anyone doing that. You don’t have to stand by and watch your house being trashed by anybody. I think you’re entitled to protect your property, protect your person. What you can’t do is go beyond the bounds of what the law allows.

I think if you can say that the intentional application of force was warranted, not for the purposes of discipline but for the purposes of restraint, I think the law will have to recognize it as a defence. So what I’m anticipating is that the law will develop a colour of right, it will have to.

Q: What about where a toddler or seven year old is just being outright disobedient, defying boundaries and authority, and in need of discipline, but not in need of restraint for their own safety?

A: Assault has always had various defences of the kind we’ve just been through, and to me it is about marking a boundary about what is effectively a legitimate form of restraint.

I think the law would have to develop a defence, the same way colour of right developed, that what you were doing – a technical assault – was justified because of the circumstances that were presented to the parent.

Q: Courts or parliament?

A: I think the courts will probably be the right place to deal with it. I think a District Court judge familiar with dealing with assault issues generally will see how this fits into a pattern of defences to assault.

I mean, technically there are not many defences to assault. You don’t get charged with assault for taking someone in a headlock who’s threatening someone else, because that’s defence of another, but the trouble is those things don’t generally have application to children. We’re still talking about a form of restraint for a reason to do with the way people live in their homes. And there is the conundrum: how do you take the defences, and they’re well established, that apply outside and say it applies to the relationship between a parent and child inside a house?

I think you’ve hit it on the button. The crucial question is going to be, child hitting another child – grab the child and take it away, that’s not assault. Child causing pandemonium, screaming its head off and threatening its own stability. You couldn’t possibly be charged with assault for taking that child to another room provided it’s reasonable force. That’s not discipline, that’s control.

It’s the point at which it moves to discipline that I think the law has no answer at present. Because if you can’t smack a child, what can you do by way of discipline to say ‘you’re behaving very badly, I do not like your language, you’re going to go and sit in that room there!’

‘I’m not going!’

‘Right, I’m going to pick you up and put you in there’.

That’s technically an assault. What’s the warrant for it? We have no statutory defence to it.

On the other hand there is a tremendous amount of common sense in the police and the courts, so you’re not going to see thousands of parents prosecuted for this. But yes there will be test cases, and the law will evolve.


IN SUMMARY, MAIN LEGAL POINTS:
A simple smack would definitely be a prima facie assault.
Touching a child for any disciplinary purpose, such as forcing them into time out, would definitely be a prima facie assault.

Touching a child for the purposes of his or her own safety, or the safety of others, or the safety of property, would be authorized by s41 and s48 of the Crimes Act, and therefore not an assault

While police would have a ‘discretion’ as to whether to charge, in practice many police stations are already calling in CYF, who take a blanket “no smacking’ approach and would be within their powers to remove children from parents, even if insufficient evidence existed to convict.

Posted by Ian Wishart at 05:14 PM | Comments (0)

February 27, 2007

Benson-Pope and the Naked Schoolgirls

Labour MP David Benson-Pope’s parliamentary career may be on the rocks today, after new revelations from Investigate magazine.

The magazine’s website has today revealed major new allegations against Benson-Pope, including a much more recent criminal assault, which may well force police to re-open their investigation into the besieged cabinet minister. Those fresh revelations include:

• That Benson-Pope physically assaulted a teenage schoolgirl by slapping her on the thigh, leaving a red mark. This incident happened in 1997 just two years before Benson Pope entered parliament, making it a very recent assault allegation • That Benson-Pope watched naked schoolgirls while they showered, after bursting in on them in the shower block at a school camp in 1997 • That later the same day Benson-Pope again burst in unannounced on girls showering and getting changed after a “mud run” • That Benson-Pope burst in on schoolgirls as they were getting changed ready for a tramp at a school camp in 1998 • That a formal complaint by a girl and her parents to the then Bayfield principal Bruce Leadbetter about the indecent behaviour went ‘unanswered’, despite a promise from the principal that he would forward it to the Board of Trustees for investigation • That Benson-Pope socialized with students, including taking them on high-speed drives through the country side fast enough that the car appeared to become “air borne” as it jumped a rail crossing • That Bayfield High School has a bigger problem with teacher violence and sexual behaviour than earlier publicized – that one teacher there was sleeping with a sixth form student in the late 1990s, and that another teacher assaulted students even worse than the Benson-Pope incidents

Investigate magazine was inundated with emails and phone calls from former Bayfield students after running a cover story on David Benson-Pope last week. As a result of new information, the magazine contacted more than a hundred former pupils by email in order to corroborate the fresh allegations that had come to light.

Of the latest criminal assault allegation from 1997, one student told Investigate David Benson-Pope used a ruler to slap her across her thigh, leaving “a red mark”. The student’s crime, apparently, was failing to count to ten in German. She told Investigate her reaction was one of shock.

“[I thought] Holy shit!, and I looked around the room to see if anyone else had seen it and people had.

“I seriously would like to have him in a room and tied to a chair so I could knock the living shit out of him! To be quite honest.”

Some of the former schoolgirls contacted by Investigate since the magazine came out have distinct memories of what they regard as unacceptable sexual behaviour by David Benson-Pope on school camps.

One woman has told Investigate Benson-Pope walked unannounced and uninvited into the girls dormitory while they were getting changed after a mud run.

“He knew we were in there. It was straight after the mud run, he knew we were all in there getting changed and things like that and he just wandered straight on in, and thought he had the right to do that.”

The woman says up to twenty-five girls aged 14 and 15 were in various stages of undress, some fully naked, during Benson-Pope’s “visit”.

“Girls were naked and in the process of getting changed.”

She says the Labour MP lingered, staring, for 30 seconds, before finally getting out because of the pandemonium his presence was causing.

“Screaming and yelling and telling him to get out, and all this swearing.”

The woman says it was the second time that day Benson-Pope had attempted to see the schoolgirls undress.

“He walked in on the showers one time, then later on that day walked into the dorm room while we were getting changed. Straight on in.”

This incident happened at the fourth form camp in 1997. The woman told Investigate she and the other girls were embarrassed and dumbfounded that a senior male teacher felt he had the right to enter the girls’ dormitories at all, when it should only have been female staff permitted.

“He’s an arsehole. He really is. I don’t know if any other students did, but me and my parents made a formal complaint about it, but nothing was done about it.”

She says they took their concerns in the first instance to Bayfield principal Bruce Leadbetter.

“We were told to write a letter and it had to go in front of the Board of Trustees. But that never happened.”

When Investigate phoned Bruce Leadbetter for comment, he wasn’t happy to hear from us.

INVESTIGATE: “There was actually a complaint made to you about him being found in the girls’ showers at a school camp, is that correct?”

BL: “I have no comment to make about anything, I’m sorry.”

INV: “Is that true though?”

BL: “I say I have no comment to make about anything, sorry.”

INV: “By making no comment, I’m anticipating that could be true and one of the other allegations –”

BL: “Listen, did you hear what I said? I have no comment –

INV: “- one of the other allegations is that the school had a culture of violence under your reign.”

BL: “I find this pretty, pretty rude.”

INV: “Bruce, if that teacher walked through the girls’ showers on a school camp –

BL: “Don’t threaten me, don’t use a bullying tone, I have no comment to make.”

And with that he hung up the phone.

If Bayfield High did discipline David Benson-Pope, and there’s no evidence they did, it didn’t work.

According to another female student in an email to Investigate, David Benson-Pope again tried to see naked schoolgirls on the 1998 fourth form camp, his last year at the high school before entering parliament.

“I do remember one incident involving him when I was in 4th form at a school camp at Tautuku. I remember that the girls were in their dorm getting ready for a tramp and we were all mucking around and taking ages to get changed. BP [Benson-Pope] got quite agitated and just marched on into the dorm without knocking or any warning at all and yelled at us all to hurry up. At this stage quite a few of us were still trying to get changed.

“I'm not sure if anybody reported this incident to the other teachers but it was talked about for a few years after that and it didn't do much for his image with the students in my year!”

The same woman told Investigate she also found the Labour cabinet minister “sleazy”.

“He was not well liked among the kids in my year, or by too many people at all! He came across to me as really arrogant, self important and a little sleazy, and could be very domineering and intimidating to students who didn't obey him.

“BP also taught my mother at Bayfield High School in the 70s. He was new to teaching then and according to my mum he was not well liked then either. She says he quite often used scare tactics to get students to obey him.”

Another female student, who started at Bayfield ten years earlier in 1987, says she never saw inappropriate behaviour involving David Benson-Pope, but was aware of rumours.

“I had an encounter with David Benson Pope in the stairwell one day after some girls had been nasty and spreading rumours. He told me that what other people thought was irrelevant, that I knew the truth and that’s what matters. I often think of this as I face similar situations throughout my life. He was a brusque, sometimes arrogant man, but I don't believe he was ever inappropriate.”

Remember, her memories reveal there were allegations about David Benson-Pope in 1987 – clearly unrelated to either the 1982 school camp where he watched girls in their nighties, or the 1997/1998 incidents 10 years into the future while he was a Dunedin City Councillor preparing to enter parliament.

Another aspect of Bayfield’s school culture to emerge as a result of Investigate’s sweeping survey of former pupils was sexual activity between schoolchildren and teachers.

One former schoolgirl, who started at the school in 1995 told us this:

“Bayfield has a bit of a reputation for pupils marrying, or getting into relationships with teachers, not necessarily while they were at school but certainly after. I can think of two at least that are still going strong.

“However, in my form there was a girl who was apparently sleeping with a PE teacher and now that we all think back she was in nearly every sports team he coached. He had team barbeques at his house too. He was "advised to leave" but the grapevine said that they were still together, at least for a while after he had left. The affair began while she was in sixth form and into the seventh form.”

Remember, those statements come from a girl who attended in the late 90s. What then do we make of these comments from a woman in the class of ’84:
“[student name deleted] was rumoured to be having a relationship with the [deleted] teacher (that was [teacher’s name deleted] wasn’t it?) after she left high school which I thought was odd given the age difference.
Investigate found more corroboration for the late 90’s incident when we raised it with another student we were questioning:

INV: There’s suggestions that a PE teacher, or a gym teacher was having –

STUDENT: - having an affair with a student? Yep, and they’re still together. I can’t remember his name, but her name was [deleted].
He got fired and she was told never to see him again but apparently they’re still together.

There are claims from former Bayfield students on the Oldfriends.co.nz website that sometimes they used to get “pissed” with teachers at the teachers’ homes after hours.

Another student, this one male, told Investigate he remembers going for a drive with Benson-Pope in what appears to be a low-rent version of a Helen Clark motorcade:

“I can clearly remember being in BP’s Green Fiat with two other students (as I recall) when the car was able to get airborne travelling at speed over a few railway mounds that intersect various points of the roads out on the Taieri! Looking back now that was inappropriate behaviour from a teacher (adult), even if egged on by his students.”

But like others, this student has also backed up Investigate’s claims that Benson-Pope ogled schoolgirls in their nighties.

It began, he said, when he and some others were caught raiding the kitchen.

“In 1982 (as I recall) I attended a school camp at Whare Flat. I and several other students were caught having broken the rules, in my case having been out of my bed after lights out. Nothing too untoward, I was getting something to eat from the kitchen in between two bedrooms at each end of the cabin. How I was caught is material in that there were two teachers on patrol with a powerful torch and my silhouette was enough to identify me and others through the cabin curtains.

“The punishment for this was for us guys to strip down to our grots, and stand outside along with some of the other girls, (they were allowed to wear nighties), who had also been caught out for similar reasons. There was more than one teacher in this group, one of whom was definitely David Benson-Pope.

“I distinctly remember having the torch shone upon me in a way that I consider to have been humiliating… Perhaps Mr David Benson-Pope would like to refer to the Bayfield High school’s policy of having male students stand outside in their underpants in the company of girl students, while a powerful torch is being shone upon them? One can only hope that the nighties were thicker than the curtains!”

With fresh allegations of criminal assault that are only a few years old, and large numbers of witnesses to David Benson-Pope repeatedly sexually harassing naked schoolgirls, Investigate believes the Minister’s position has become untenable.

Investigate approached Benson-Pope through his lawyers for comment, but no reply had been received two hours after the deadline passed this morning.

Posted by Ian Wishart at 12:48 AM | Comments (0)

Minister of Sleazy Developments: Feb 06 issue

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MINISTER OF SLEAZY DEVELOPMENTS

Another blow to David Benson-Pope’s credibility

He’s already been sprung for shoving a tennis ball in a student’s mouth and bashing another in the face with his fist, and he’s been trying for two months to prevent Investigate from accessing more police documents. But now IAN WISHART can report Labour cabinet minister David Benson-Pope stands accused of making teenage schoolgirls strip to underwear and nighties at a school camp, and that’s not all


You’d think we’d already heard all there was to know about the David Benson-Pope case: the tennis balls, the bleeding nose, or the Vast Right Wing Conspiracy he claimed was setting him up on the basis of false allegations. But no, buried deep in more than 1,000 pages of documents released to the news media in December are previously unpublished allegations that the former school teacher used to make scantily-clad 14-year old girls parade for him at school camp, that he was “sleazy” towards the girls in his care and that he harassed a female teacher and vandalized her students’ best work as part of a personal vendetta.

Although Benson-Pope is no longer an associate Education Minister, as Social Development and Employment Minister he retains extensive responsibilities for youth issues.

While Investigate has been probing the police file, the embattled cabinet minister has been fighting tooth and nail to prevent more still-confidential police documents being released to the magazine. It raises an obvious question: does David Benson-Pope have something more to hide over the police decision not to prosecute him for assault despite a prima facie criminal case?

On 1 December last year, police announced that a long-awaited release of their investigation file into the Benson-Pope case had been delayed after direct submissions from the minister’s lawyer, John Haigh QC.

As a result of that delay, Investigate immediately lodged an Official Information Act request with police seeking copies of the behind the scenes submissions from the cabinet minister, and details of any other correspondence between police and the minister.

When the Benson-Pope file was released, those items of correspondence were mostly not included. The first inkling of a reason why came in a brief three paragraph letter to Investigate from Police National Headquarters on December 19:

“I have carefully considered your request, but following submissions from Hon. David Benson-Pope I have decided to refuse it in terms of sections 9(2)(g)(i) and 9(2)(a) of the Official Information Act 1982.”

Section 9(2)(a) of the Act allows for suppression to protect the privacy of individuals, and s9(2)(g)(i) is more complex. What police were arguing under that section is that because Benson-Pope is a Minister of the Crown, he’s entitled to special privileges: according to police, Benson-Pope’s submissions to the police - on whether he should be charged or whether Investigate could access the documents – could not be released under the Official Information Act because they come under the category of “free and frank expressions of opinions” between a Minister of the Crown and officials of a government department.

Before turning to that precise constitutional showdown between Investigate and the police, however, it’s worth briefly recounting what the criminal investigation of David Benson-Pope actually discovered.

There were three main areas police were investigating:
1. Did Benson-Pope, while he was a school teacher at Dunedin’s Bayfield High in 1982, shove a tennis ball in the mouth of a student and then tape his hands to a desk so he couldn’t remove the ball?
2. Did Benson-Pope attend a school camp that year where he punched a student in the face, causing a bleeding nose?
3. Did Benson-Pope force male and female students to go outside in their underwear and stand in the freezing cold at a school camp for up to an hour as a disciplinary technique?

So what really happened? Initially David Benson-Pope denied categorically that it happened, but he subtly changed his tune to the ‘Winebox defence’: “I cannot recall”.

The police file however, tells a very different story about the MP’s teaching style. According to one woman interviewed by police about events when she was a 14 year old in Benson-Pope’s class, the Labour MP was a “sleazy” teacher.

“Quite sleazy, some of the comments he made used to grate me. The girls, including me, felt that he was always staring at our legs beneath desks…With the girls he was always sleazy if he could be, he seemed to thrive on it.”

David Benson-Pope, according to another police witness, used to address female students in his class as “fluffy-bunnies”. A former female art teacher at Bayfield High School also has negative memories of David Benson-Pope as a teaching colleague.

“I feel that David Benson-Pope harassed me over a couple of years. He had a position of responsibility and was the president of the PPTA. Basically, if you didn’t agree with his way of doing things and way of thinking – he made it known.

“Because my kids went to a private school he assumed I was a National party supporter. Because I wouldn’t agree with his proposed strike action he made my life difficult in the staffroom by yelling at me.”

The teacher also accuses David Benson-Pope of stealing material from her class, and vandalizing students’ work as part of his alleged vendetta against her:

“He would also come and take materials from my art room – that I had budgeted hard to get – and tell me that because he had a position of responsibility and I didn’t there was nothing I could do to stop him.

“Eventually the last straw was a time when he interfered with displays of my best students’ work. Some of the pieces were lost as a result. I walked out of the school threatening human rights action. Eventually there was mediation and Benson-Pope apologized.”

Last year, when the allegations of the MP’s brutality first surfaced, he initially claimed his accusers were liars, and school bullies. Ironically, however, one of the themes running through the police file has been bullying by Benson-Pope, that he treated bright students well and the less-academically able badly, or that he simply enjoyed picking on the helpless.

One student told police that when Benson-Pope delivered canings in the corridor outside the classroom, he did so with apparent relish:
“Mr Benson-Pope would whistle the cane in the air before taking a run up of about 10 feet. I’m estimating the distance but you could actually hear him running up. It was pretty psychologically damning, standing there bent over listening to the run-up. I’m pretty sure it was a run-up for each of the three canes on that occasion. As a result I suffered severe bruising but no bleeding. Obviously very painful to sit for the next few days.”

A second boy remembers refusing to jump the vault at PE in the third form because he didn’t feel confident. He told police his punishment from Benson-Pope was the cane. He was one of two boys given the cane for non-compliance at PE that day.

“I had to wait outside the school hall while Tony [the other offender] was dealt with first. I could hear screaming and yelling – I still remember it well today because [Tony] was such a tiny boy.”
A former teacher confirms the incident. “It’s a lasting impression because it’s the only caning I’ve witnessed. I remember Tony ran a lap of the assembly hall yelling in pain after the caning.”

“When it was my turn,” continues the former student who’d refused to jump the vault, “I was brought into the hall. I was bent over and caned once over my trousers by Benson-Pope. I pleaded not to be caned again but was struck once more with the cane.

“I remember Benson-Pope laughing while he caned me – and that’s what got me the most. When I got home I realized I had blood on my bum.”

There is no question he was an unorthodox teacher. Many former students and teachers spoken to by police felt that although his discipline style was a hang-over from the ‘Mr Gormsby’ era, his teaching approach was “new age” or “ahead of its time”. Significantly so that even those attacked by Benson-Pope still respect many of his classroom achievements.

But it was out of the classroom, according to police witnesses, that even more borderline behaviour took place. Benson-Pope had a huge interest in outdoor education, and organized many of the school camps each year and other outdoor excursions.

“There was some funny discipline at the camps,” one teacher says in her witness statement, “including kids having to run behind a car in the nighttime.”

In 1982, Benson-Pope took fourth-formers to a camp at the Catlins reserve south of Dunedin, where a large number of students have now told police that teenage schoolgirls were made to stand outside in their nighties in the early spring cold as part of “discipline”.

One former schoolgirl remembers she and her friends in the dormitory had been “talking” after the lights went out, and Benson-Pope warned them that “if we didn’t shut up we would be outside.

“He was yelling at us, angry, telling us to get outside.

“I remember he told us that we had to take any surplus clothing off, e.g. jerseys and trackpants. It was just our nighties and no footwear.”

In other words, girls were effectively forced to strip to underwear and nighties by Benson-Pope, according to the witness. Although some of the teachers spoken to by police say it was female teachers responsible for disciplining the girls on camp, this witness and others can only recall Benson-Pope being there.

“We had to stand on the concrete, outside the long dorms. There were a few girls involved, over a dozen. I remember [one girl] being there as she told Benson-Pope she couldn’t do it for health reasons – that night her ankles swelled up really badly as a result. I remember later a lot of the girls tried to comfort her.

“I remember the incident so clearly because it was freezing cold, I believe it was winter. We were out there for about an hour.

“Benson-Pope just stood there, watching. If anyone spoke he threatened we would have to stand out there longer. I imagine I was feeling pretty self-conscious standing there in just a nightie.”

Another senior female teacher says, “Generally he threw his weight around on those camps, but apart from forcing a girl to complete an activity that she was distressed about I have no incidents to report.

“I was not a fan of his, I just found him arrogant and actively avoided him. I was just wary.”

And remember, that’s a teaching colleague of Benson-Pope’s, not a disgruntled student.

One student remembers smelling alcohol on Benson-Pope’s breath during the camps, while a female student interviewed separately also told of staff drinking, and how one female teacher “looked the worse for wear” in the morning.

Another of his fellow teachers, Bayfield’s former Senior Master, told police he remembered an alleged assault on camp that appears to be different from the ones the media and police investigated last year.

“There was one incident at a school camp that occurred at Tautuku Camp. It was about an assault, it was serious enough that we tried to get Benson-Pope back from camp, but he wouldn’t come back from camp.

“I cannot remember how it came to the notice of the school, but the headmaster dealt with it in the end.”

The Senior Master says he was unaware of the tennis ball incident or the bash to a student’s face on camp.

“If a parent had come to me as Senior Master telling me their child had been taped to a desk and a tennis put in his mouth and left like that, I would have gotten Mr Benson-Pope into my office and found out what had happened. He would be reprimanded for it and made to apologise to the family. The child could well be moved from his class.

“If the parents had wanted it dealt with in the school we would; if they had gone to the police we would leave it to the police to deal with. It could well have been an assault.”

But Phil Weaver – the boy at the centre of the tennis ball incident – didn’t tell his parents. His mother was dead and his father, according to reports on the police file, wasn’t coping well.

“From what I knew of his father he was a bit of a drinker, I remember Phil got beatings off his father,” one student told police.

The incident involving the tennis ball has been well-reported. Weaver tried to remove the punctured tennis ball from his mouth but Benson-Pope shoved it back in and used black tape to bind Weaver’s hands to the desk so he couldn’t pull the ball out of his mouth. According to witnesses, Weaver was left bound and gagged for more than 20 minutes until the end of the class. The police file notes the nine children witnessed it, which police call “strong” evidence for a court trial, and “none appears to have any hidden agendas”.

David Benson-Pope continued to deny to police that the incident took place, a stand so at odds with the corroborating evidence that police said his position was an “aggravating” feature of the crime in the decision as to whether to prosecute.

Police concluded a prima facie case existed and said charges could include kidnapping, which carries a maximum penalty of 14 years jail for anyone who “detains any person without his consent…to cause him to be confined…”

Other options included cruelty to a child and common assault.
On the second charge of assaulting a student at the school camp by punching him in the face, police only had two witnesses, but both remembered it clearly.

No charges were considered over Benson-Pope’s actions making students stand in the cold in their underwear while he watched them.

So this, then, is the background to Investigate’s decision in early December to apply for copies of all communications between David Benson-Pope and police on the case. We wanted to ascertain that no improper pressure had been brought to bear on police, particularly after news reports that Benson-Pope had sought a delay in the release of the file to the public.

THE OIA REQUEST
When police came back with their refusal to release the extra documents, the magazine immediately appealed to the Ombudsman over whether the information was indeed confidential because Benson-Pope was a cabinet minister.

“In regard to the refusal under s9(2)(g)(i), Ombudsman’s ruling in Case 983 makes clear that only opinions of an exceptionally free and frank nature should be withheld. It is difficult to see how Mr Benson-Pope’s communications with the Police could fall into this category. Mr Benson-Pope’s position as a Minister of the Crown means that there is considerably more proper public interest in the processes leading to a police decision not to charge Mr Benson-Pope, than perhaps would apply to an ordinary criminal offender.

Additionally, s9(2)(g)(i) is more properly designed to protect legitimate Crown business in the affairs of state, rather than to protect a Minister of the Crown against whom police found a prima facie criminal case.

It is of particular public importance to see that a Minister of the Crown cannot bring undue private influence to bear on a police investigation that he is the subject of, and indeed the Minister’s plea to police for information to be withheld under this section is itself of public interest, as it may be seen to be of itself an exercise of such influence. An ordinary member of the public gets no protection from this section in such circumstances.

Accordingly, Investigate seeks to widen its OIA request to include the content of communications between Police and Mr Benson-Pope on the Investigate OIA request.

It is the magazine’s submission that the public interest properly requires full disclosure of the documentation or information originally sought, so as to clear the Minister of any suggestion of improper influence being brought to bear. Again, the fact that he pleads s9(2)(g)(i) indicates that his communications to police must have been, by definition, exceptionally free and frank, and the public have a right to know how much so.

Turning now to s9(2)(a), again the issue here is not mere tittle-tattle of no public interest. The Minister already has a reduced right to privacy by virtue of holding high public office, and the OIA was not intended to protect the privacy of Ministers of the Crown on matters of public interest. Rather, this section was to provide protection in the first instance to ancillary people, members of the public, who might be harmed by the release of OIA material out of proportion to their involvement in the circumstances at issue.

The Minister’s reduced right to privacy is further reduced by the circumstances of the specific criminal case, and the fact that Police found a prima facie case against the Minister existed. This is an extremely rare and constitutionally important circumstance, against which Mr Benson-Pope’s wish not to have the content of his communications with police must fail.

I would draw attention to the Court of Appeal’s comments in TVNZ, The Queen v David Bain, CA255/95, where the justices wrote: “The substantial public interest in the murder and the trial is however relevant in another way. The material presented to this Court demonstrates significant media interest in and speculation about the suppressed evidence. The suppression might itself “promote distrust and discontent”. That speculation is not in the interests of the administration of justice and is itself a reason supporting the revoking of the prohibition order.”

Investigate magazine seeks an urgent review of the police refusal to disclose the information requested, given the proximity to Christmas, the fact that the material has already been collated and reviewed by Police (subject to the addition of the latest communications) and our impending magazine deadlines.

When we got a reply from Chief Ombudsman John Belgrave, we were not expecting the answer we received. At the centre of it all, says Belgrave, is section 9(2)(g)(i) of the Official Information Act, which reads:
9(2) …this section applies if, and only if, the withholding of the information is necessary to –
(g) Maintain the effective conduct of public affairs through
(i) The free and frank expression of opinions by or between or to Ministers of the Crown or members of an organization or officers and employees of any Department or organization in the course of their duty;”

“In general terms,” argues Belgrave, “the purpose of this section is to avoid prejudice to the generation and expression of free and frank opinions which are necessary for good government.

“The ability of Ministers, officials and others to express their opinions on relevant issues in a free and frank manner is an essential ingredient of the climate necessary for the effective conduct of public affairs.”

To back up his analysis, Belgrave cites the 1982 Danks Committee report that led to the creation of the Official Information Act:

“To run the country effectively the government of the day needs nevertheless to be able to take advice and to deliberate on it, in private, and without fear of premature disclosure. If the attempt to open processes of Government inhibits the offering of blunt advice or effective consultation and arguments [Belgrave’s emphasis], the net result will be that the quality of the decisions will suffer.”

In other words, Benson-Pope’s submissions to police and vice versa are protected speech necessary for the maintenance of public affairs.

“The information at issue,” says Belgrave, “reflects opinions put forward on behalf of Mr Benson-Pope by his lawyer, and responses by the legal advisor for the police. For the purpose of my investigation it has been submitted that such exchanges should occur without any inhibition from concern about disclosure under the Official Information Act.

“It has been further submitted that an expectation of confidentiality existed on the part of Mr Benson-Pope’s lawyer.

“By way of basic approach, I consider that the lawyer for a person in the position of Mr Benson-Pope should be free to express views and opinions without concern that such communications will be released into the public domain under the Official Information Act. The prospect of public disclosure in my view would be likely to inhibit representations that may (and should) properly be made on behalf of the client.

“There is, however, no absolute rule and it is necessary for the actual information and issue to be considered.”

Chief Ombudsman Belgrave did consider the documents Investigate is seeking, and says he’s satisfied that the opinions of both lawyer John Haigh QC and the police legal advisor “were expressed freely and frankly”.

He refuses to release those communications because of the “expectation” of confidentiality. However, even that isn’t the end of the matter – Belgrave is required by law to consider whether the withholding of the information “is outweighed by other considerations which render it desirable, in the public interest, to make that information available.”

To that end, Belgrave says he looked again at the content of Benson-Pope’s submissions on why he should not be prosecuted, and why Investigate shouldn’t be allowed the documents, and determined that although the information might be “interesting” it was not of public interest to release it.

Naturally, Investigate fought back.

“It is a standing maxim of New Zealand law that “There is no confidence in iniquity” [Gartside v Outram, 1857, 26LJ Ch 113, per Wood VC, restated many times including European Pacific Banking Corp v TVNZ, I Wishart and Ors, 1994]. Iniquity as determined by the Privy Council does not even mean a test as high as illegality. Mere immorality is sufficient to trigger it,” we told Belgrave.

“In a similar case to the one in question, a police officer supplied information in confidence to a reporter which revealed corruption by members of the police force. Despite statutory obligations on secrecy, the courts discharged an interim injunction to allow publication in the public interest. Full publication that is, not merely reporting the matter to “proper authorities”. Cork v McVicar, The Times LR, 31 Oct. 1984.”

In another British case, the issue of a public figure claiming confidence also came under fire:

“It is in the public interest that P’s article is displayed on the website. P’s past behaviour described in the article is closely linked to his present political platform and the public should be aware of such an inconsistency in someone who is eligible. It is thus a “pressing need” and not merely information that is “interesting to the public” (Lion Laboratories v Evans [1985] QB 526, 537).

“Additionally, David Benson-Pope has an overwhelming conflict of interest in hiding behind the protections of s9(2)(g)(i). He is, in Investigate’s opinion, using his Ministerial position to influence the police and intimidate them. The activities in question do not relate to his time as a Minister. Neither he nor the Police can claim immunity from scrutiny on that basis. To do otherwise would be for the Chief Ombudsman to confirm that the Labour Cabinet are indeed above the law of the land, even for alleged criminal offences predating their political office, let alone criminal offences committed in office.”

The magazine then mounted an attack on the idea that letters from lawyers to police in this case should not be divulged.

“You cite in your letter that Benson-Pope’s responses to police regarding the case should somehow enjoy some kind of privilege similar to a lawyer-client privilege, even though no privileged relationship exists between the accused and Police. Indeed, the legal maxim applicable is “anything you may say can be taken down and used in evidence against you in a court of law…”

“I am unable to find any statutory ground for such a privilege inside the Act itself, nor does the section that Benson-Pope relies upon include it. Accordingly, if it is not one of the statutory defences available in the Act the Ombudsman has a duty to rule in favour of the release of the information.”

The key argument appears to rest on whether Benson-Pope’s legal submissions fall within the tight definition of the section 9 defence.
Firstly, the section applies “if, and only if”. In other words, it is a last resort section. And it can only apply if it is necessary to “maintain the effective conduct of public affairs”. Not just any conduct of public affairs – there is a suggestion inherent in the section that disclosure might result in some kind of breakdown of public affairs were the protection not in place.

Remember, the affairs in question were not public administrative matters, but personal affairs of an allegedly criminal nature that happened in a public place. For the Ombudsman to let Benson-Pope off the hook on Ministerial grounds would be like suggesting the Ombudsman should be immune from parking tickets because they hinder his ability to carry out his job without interruption.

But continuing with our breakdown of the section, it only applies to “free and frank expressions of opinion” to or from Ministers or officials that are “necessary to…maintain the effective conduct of public affairs”.

In other words, not all free and frank expressions of opinion to or from Ministers or officials are covered, only those vitally necessary to maintain the effective conduct of public affairs.

“Is David Benson-Pope’s desire to avoid more political embarrassment really a matter of national security and the maintenance of the rule of law? Because that is the implication from your letter, with respect,” we suggested to Belgrave.

And even if the Ombudsman is correct (and we think he isn’t) that the submissions are covered by that section, there’s still the question of whether public interest should take precedence over Benson-Pope’s right to privacy.

The Benson-Pope case is a criminal justice issue, where justice should be seen to be done. There is some suggestion that police were pressured in regard to releasing the original documents under the OIA, and that too is a matter of enormous legitimate public interest.

The Ombudsman drew a distinction between what might be interesting to the public, and what is genuinely of public interest. He didn’t feel the Benson-Pope documents were genuinely in the public interest.

Public interest is a legitimate defence in two scenarios – breach of confidence (alluded to above) and the right to privacy. As we’ve already explained that any claim to confidence fails on the iniquity test, or would if it was put to the court. By this, we mean that although the MP’s legal submissions are unlikely of themselves to be iniquitous, they are central to the overarching prima facie criminal case, and as such an important part of the picture.

The Ombudsman has already confirmed the submissions were extremely “free and frank”, which again is relevant to determining whether they were so frank as to possibly intimidate police out of prosecuting.

Then there’s the novel defence raised for the first time by the Ombudsman himself, which is that an expectation of privacy existed to such an extent that it overrides the Official Information Act’s presumption that information should be released.

The dominant recent case on privacy in New Zealand is Hosking & Hosking v Simon Runting & Anor [2004] NZCA 34 (25 March 2004).
Lord Goff, in Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109, has been cited in the Hosking case in NZ as follows:

“His Lordship went on to discuss three limiting principles: (a) the principle of confidentiality only applies to information to the extent that it is confidential; (b) no duty of confidence attaches to useless information or trivia; and (c) the public interest in protecting confidences may be outweighed by the public interest in disclosure, particularly in the case of disclosure of iniquity”.

Elsewhere in Hosking, the point is made by the Court of Appeal:

“The test for the "privacy" of information, i.e. information that warrants protection (that its disclosure would be highly offensive to a reasonable person of ordinary sensibilities), taken in Campbell from the judgment of Gleeson CJ in the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats (2001), comes directly from the American privacy jurisprudence.”

In other words, the test as to whether the information being withheld is ‘private’ needs to be more deeply considered in the light of existing case law definitions. Is the Benson-Pope information likely to be “highly offensive to a reasonable person”? The actual test in US law is:

“SS 652D Publicity Given to Private Life
“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.”

Not only would the suppressed Benson-Pope data have to be “highly offensive” to remain private, it would also have to be of no legitimate concern to the public. Yet if there were truly no legitimate concern, he would never have been investigated in the first place.

And further through Hosking:

“The Court in Aubry [Les Editions Vice-Versa Inc v Aubry and Canadian Broadcasting Corporation (1998) 157 DLR (4th) 577] recognised, however, that expectations of privacy may be less in certain circumstances. This will often be the case if a plaintiff is engaged in a public activity where the public interest in receiving the information should take priority.”

The Hosking judges considered this aspect further in quoting some US jurisprudence on the issue:

“But privacy is not the only cherished American value. We also cherish information and candour, and freedom of speech. We expect to be free to discover and discuss the secrets of our neighbours, celebrities and public officials ... The law protects these expectations too – and when they collide with expectations of privacy, privacy almost always loses.”

In Bradley v Wingnut Films, a New Zealand case involving filmmaker Peter Jackson cited in Hosking, the American definition of whether the information should be private was used:

“The Judge also felt the plaintiff would have difficulty establishing that the matter would be highly offensive and objectionable to a reasonable person of ordinary sensibilities.”

As we told the Ombudsman, his provisional view that an issue of privacy exists should be reconsidered in view of warnings from the Court of Appeal on precisely this matter in Hosking:

“In his judgment Randerson J listed several reasons for his conclusion that the courts should not recognise a separate privacy tort. The same reasons were at the forefront of the arguments in this Court. The first of these is that the deliberate approach taken by the legislature to date on privacy issues suggests caution towards "creating new law in this field". Emphasising this, the respondents contend that the deliberate exclusion from the Bill of Rights Act indicates a clear decision not to introduce any broad privacy protection in our law.”

Investigate believes it is unconstitutional for the Ombudsman to make a decision on privacy not grounded in statute – the OIA – or common law. Indeed, as the upholder of the Official Information Act, it would be ironic indeed for the Ombudsman to be creating new privacy laws where no legal basis for them exists.

The judges in Hosking, in the magazine’s view, deliver a killer blow to Benson-Pope or his lawyer’s arguments regarding privacy, when they say this:

“The question is how the law should reconcile the competing values. Few would seriously question the desirability of protecting from publication some information on aspects of private lives, and particularly those of children. Few would question the necessity for dissemination of information albeit involving information about private lives where matters of high public (especially political) importance are involved.”

Not only is there no inherent right to privacy, but political figures have even less protection, a point the judges develop at paragraph 120 of the Hosking ruling:

“The present case raises an important issue in relation to private facts. Should public figures have lower expectations of privacy in relation to their private lives, and how does this impact on the families of public persons? Prosser identified three reasons why, in the United States context, public figures are held to have lost, at least to some extent, their right of privacy: (1) by seeking publicity they have consented to it; (2) their personalities and affairs are already public facts not private ones; and (3) there is a legitimate public interest in the publication of details about public figures. That third factor is an important consideration to which we will return.”

David Benson-Pope holds high political office as an elected MP and Cabinet Minister. He is accused of a crime potentially carrying a prison sentence. There can be no higher legitimate public interest in a democracy than scrutiny of elected public officials by the news media.

The Hosking judges continued, ruling, “that voluntary public figures (those who engage in public activities, assume a prominent role in institutions or activities having general economic, cultural, social or similar public interest, or submit themselves or their work for public judgment) have no right of privacy in relation to public appearances or activities. But as Lord Woolf CJ said in A v B (supra at 554): ‘Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media.

“ ‘The right to privacy is not automatically lost when a person is a public figure, but his or her reasonable expectation of privacy in relation to many areas of life will be correspondingly reduced as public status increases. Involuntary public figures may also experience a lessening of expectations of privacy, but not ordinarily to the extent of those who willingly put themselves in the spotlight’.”

In fact, so tough is the privacy test for politicians internationally that New Zealand courts note even their families are fair game for public scrutiny, especially if criminality is alleged:

“In the United States the families of people who court public attention will also have lower expectations of privacy because the legitimate public interest in the public figure is not necessarily limited to the individual himself. In Kapellas v Kofman 1 Cal 3d 20 (1969) a newspaper editorial was published urging electors not to vote for a certain candidate for the city council. The article referred to the fact that three of the candidate’s six children had committed various offences and misdemeanours. She sued for, inter alia, an invasion of her children’s privacy but the claim failed, with the Court observing (at para [17]): ‘... when the legitimate public interest in the published information is substantial, a much greater intrusion into an individual’s private life will be sanctioned, especially if the individual willingly entered into the public sphere ... The children’s loss of privacy is one of the costs of the retention of a free marketplace of ideas’.”

On the issue of what is legitimate, the Hosking bench wrote:

“Legitimate public concern -

“There should be available in cases of interference with privacy a defence enabling publication to be justified by a legitimate public concern in the information. In P v D, absence of legitimate public interest was treated as an element of the tort itself. But it is more conceptually sound for this to constitute a defence, particularly given the parallels with breach of confidence claims, where public interest is an established defence. Moreover, it would be for the defendant to provide the evidence of the concern, which is the appropriate burden of proof if the plaintiff has shown that there has been an interference with his or her privacy of the kind we have described.

“Furthermore, the scope of privacy protection should not exceed such limits on the freedom of expression as is justified in a free and democratic society. A defence of legitimate public concern will ensure this. The significant value to be accorded freedom of expression requires that the tort of privacy must necessarily be tightly confined. In Douglas v Hello! Brooke LJ formulated the matter in the following way (at para [49]): ‘[A]lthough the right to freedom of expression is not in every case the ace of trumps, it is a powerful card to which the courts of this country must always pay appropriate respect’.”

The Hosking Bench returned to the definition of public interest used by the Ombudsman to provisionally reject Investigate, and concluded that the balance should fall to the media’s advantage unless there was a compelling reason not to:

“The importance of the value of the freedom of expression therefore will be related to the extent of legitimate public concern in the information publicised.

“The word "concern" is deliberately used, so as to distinguish between matters of general interest or curiosity to the public, and matters which are of legitimate public concern. We accept in this respect the observation of Eichelbaum CJ in TV3 Network Services Ltd v Broadcasting Standards Authority (at 733) that there is a difference between material that is "merely interesting" to the public and material "properly within the public interest, in the sense of being of legitimate concern to the public".

“A matter of general interest or curiosity would not, in our view, be enough to outweigh the substantial breach of privacy harm the tort presupposes. The level of legitimate public concern would have to be such as outweighs the level of harm likely to be caused. For example, if the publication was going to cause a major risk of serious physical injury or death (as in the Venables case), a very considerable level of legitimate public concern would be necessary to establish the defence.

“The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards would say that he had no concern. The limitations, in other words, are those of common decency, having due regard to the freedom of the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will be done to him by the exposure.”

Applying any of these tests, Benson-Pope’s plea to privacy in regard to his communications with police must fail.

Justice Keith, in a separate judgement in the Hosking case, went further, calling the media’s right to freedom of expression “central” to our democratic system:

“The importance of freedom of expression -

“The right to freedom of expression is recognised in our law (notably by Parliament in s14 of the Bill of Rights), as in the law of many other parts of the world, as being of the highest importance in a modern democracy. The purposes and values underlying it are also widely accepted. They include individual liberty and self-fulfillment, the value of the marketplace of ideas and the protection and advancement of democratic self-government.

“The right of privacy should not interfere with publication of matters of public record, or obvious significant public interest,” Justice Keith writes [our emphasis].

At paragraph 267 of the Hosking judgements, Anderson J also warns strongly against the idea that public figures should enjoy special privacy protection:

“Freedom of expression is the first and last trench in the protection of liberty. All of the rights affirmed by NZ Bill of Rights Act are protected by that particular right. Just as truth is the first casualty of war, so suppression of truth is the first objective of the despot.

“In my view, the development of modern communications media, including for example the world wide web, has given historically unprecedented exposure of and accountability for injustices, undemocratic practices and the despoliation of human rights. A new limitation on freedom of expression requires, in my respectful view, greater justification than that a reasonable person would be wounded in their feelings by the publication of true information of a personal nature which does not have the quality of legally recognised confidentiality.”

Apart from the overwhelming public interest in finding out why police chose in the end not to prosecute (and Benson-Pope’s frank submissions are relevant to that quest), Investigate believes his plea for confidentiality fails at one final hurdle.
The Ombudsman has referred to Benson-Pope’s lawyer John Haigh QC expecting all discussions to be confidential, and that this expectation of confidentiality is crucial for the maintenance of public affairs.

However, if that is indeed the case, why did the police release dozens of pages of interim submissions from John Haigh QC and even Benson-Pope himself in the original document release? Surely releasing those documents must compromise the “expectation” of confidentiality for others dealing with police in future?

In Investigate’s view, Labour MP David Benson-Pope’s actions up to the date of this issue going to press indicate he still has something to hide, and the magazine will pursue this until the question is resolved.

Posted by Ian Wishart at 12:08 AM | Comments (0)