Referendum/Section 59 – The way forward.

The way forward.

After 27 months of opinion poll after opinion poll recording an average 80% disapproval of the anti-smacking law, the people of New Zealand have spoken loud and clear to their House of Representatives. By an overwhelming majority they have said they do not want parents criminalised for smacking their children when this is done in the context of good care and parenting.

There are a couple of options that can achieve this in law. Act MP John Boscawen’s bill that is based on National MP Chester Borrows earlier amendment, will achieve the decriminalisation of a light smack with an open hand. However it is not my preferred option for a couple of reasons.

If proper parliamentary process were to be followed, any new bill like this would need to be referred to a select committee to hear public submissions because of new wording that would be introduced into the law such as the definition of a smack.

Quite frankly I think we have had enough debate about this issue already and this could be a further waste of time and resources. Sue Bradford’s ill-conceived and unpopular law change has cost an enormous amount of resources and achieved nothing positive for the nation as a whole.

Therefore I can understand to some extent why the Prime Minister is reluctant to re-open the debate within parliament when there are many important issues facing the nation in this difficult economic recession.

I have always felt that the Borrows type amendment still interfered too much in the way parents might correct their children. After all, a different approach is needed with a two-year-old toddler from that needed with a defiant and rebellious ten year old.

I think the best response to the majority ‘no vote’ in the referendum is for the Prime Minister to call Parliament to one session of urgency to pass an amendment to the new sec 59 of the Crimes Act that deletes 59(2) & (3).

Supporters of the amended sec 59 passed by parliament on May 16 2007 often claimed that you could smack a child lawfully if they were about to put their hand in the fire for example as it was permitted under 59(1).

Sec 59. 1. Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—

(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or

(d) performing the normal daily tasks that are incidental to good care and parenting.

The problem was that subclause 2 says;

(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
And then subsection 3 says

(3) Subsection (2) prevails over subsection (1).

If Subsections 2 & 3 were deleted then the wishes of the majority of New Zealanders expressed in the referendum would be carried out, and the use of reasonable force for correction could be covered under 59(1)(d).

Since the use of reasonable force for the purpose of correction would no longer specifically be an offence, 59 (4) could be deleted.

However if there were concerns about the use of correction under 59(1)(d) being clearly covered, 59(4) could be amended as follows.

4. To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child involving the use of reasonable force for correction as part of performing the normal daily tasks that are incidental to good care and parenting, where it is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

Since these amendments have already been part of a lengthy select committee submission process, not to mention widespread public discussion, parliament would be justified in making such changes without referral to the public via submissions to a select committee since the public view has now been clearly expressed through the referendum.

Ends

Larry Baldock

21 Aug 2009