Sunday, May 28, 2006


Section 59: the submissions
As you no doubt know, oral submissions on a bill aiming to repeal section 59 of the Crimes Act, removing the reasonable force defence were heard in Parliament on Thursday. Here are my thoughts on them.

First though it is worth noting that Green MP Sue Bradford says the aim of her bill is to remove the legal defence of reasonable force, but it is not her intention to ban smacking. She does not think all smacking should be a criminal offence.

However she acknowledges that there is a fear that the bill, as drafted, could lead to prosecution of parents who lightly smack their kids. To allay fears, Bradford wants to add a commentary to clarify that it is not her intention to ban smacking. Yet the explanatory note in the bill says the bill's aim is to ban force under the pretence of domestic discipline.

One wonders how you can draft law that says you don't intend to ban all physical discipline, while banning all force under the pretence of domestic discipline. Even with an additional commentary, this and the explanatory note will have no legal effect.

Families Commission
The Families Commission's support for the bill is based on a body of international research that says smacking has negative effects for children and their families, "because children feel hurt when they are smacked".

It states that repeal will remove current discrimination against children. It obviously didn't submit that it would heighten CYFS discrimination against children by targeting their smacking parents and removing them without investigation. It believes that there is no excuse in law for assault of wives, husbands or animals, but neglected to add that there is also no excuse in law for physical discipline of them either, or excessive physical discipline of anyone.

Section 5 of the Domestic Violence Act recognises that volence in all its forms is unacceptable behaviour, and the Commission wants to "eliminate family violence" by removing section 59.

But wait for 18 months to do so.

It recommends an 18-month delay on implementation to provide for education on physical discipline. This recommendation was slammed at the hearing by select comittee member Ann Harley. So Commissioner Rajen Prasad said he would not oppose the bill being enacted immediately.

The Commission supports the intent and purpose of the bill - which is to "to stop force... under the pretence of domestic discipline" - while also submitting that parents should not be "labelled criminals for giving their child a light smack".

So what the Commission is implying ( without expressly stating so) is an amendment to provide that assurance. However the submission clearly states that the Commission" will not accept any amendment, as this provides a statement that some forms of violence towards children is acceptable. If the Commission now doesn't mind whether the bill is enacted immediately or within 18 months, why on earth didn't it make that clear in its written submission?

Office of the Childrens Commissioner
The Children’s Commissioner fully supports the intention and purpose of the bill, and submits that it be enacted without amendment. Commenting on physical punishment it states" It is unlawful to slap another person’s face, but not unlawful to do the same to your child". In other words the Commissioner is either stating that she considers a slap on the face reasonable disciplinary force in any circumstance, or she does not understand the law.

The OCC submits that defining reaonable force is futile, inappropriate and breaches the United Nations Convention of the Rights of the Child. Commissioner Cindy Kiro incorrectly said that repeal of section 59 will bring New Zealand to the legislative point that was reached in Sweden in 1957. In 1957 the statutory defence was completely removed from the Swedish Penal Code in order to provide children with the same protection from assault that adults received. However the Parent's Code, a civil code governing family law, still contained a paragraph permitting parents to use physical discipline that would not be assault under the Penal Code.

So how can it be the same "legislative point" when one country bans physical discipline and the other doesnt?

Kiro further said in her oral submission that removing a statutory defence to assault of a child by parents does not create an offence of physical punishment for which parents can be prosecuted and convicted. She's right. It doesnt.

It actually effectively creates an offence of assault, as the police have formally stated. Note the use of Kiro's language. Kiro said that "it is likely that addressing such concerns will be associated with increased public approval of repeal". Ppblic approval of repeal is currently about 17 percent,according to the Commissioner, so there's a long way to go in addressing such concerns, isn't there.

Kiro expects that light smackers will not be prosecuted. This led select committee member Anne Tolley to comment to Kiro when she was giving her oral presentation that it was going to present lawmakers with quite a challenge to pass a law they never intended to enforce. Kiro agreed.

Next up: Save the Children and Barnardos.

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