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Section 59: The select committee’s report

Originally published in Issues Snapshot 31 November, 2006.

Introduction

Criminalising parents who use mild physical discipline is still on the cards. Parliament will shortly be debating a report from the Justice and Electoral Select Committee on a Bill introduced by Green Party MP, Sue Bradford, to repeal section 59 of the Crimes Act 1961. The majority of the Select Committee recommended that section 59 should be amended, rather than repealed, leading some to dub this proposal a compromise. However, that is misleading.

This Issue Snapshot shows that, even if the proposed amendments were made, the Bill would still make it illegal for parents to use mild physical discipline, such as a light smack or picking up a child to put them into “time out” against their wishes. In addition, the proposal would introduce considerable confusion into the law. While there is absolute agreement that action is urgently needed to address our horrific rates of child abuse, there is little to suggest that the Bill or the proposal will have this effect.

Although the National Party members who formed the minority of the Select Committee disagreed with the proposal put forward by the majority, that proposal is still referred to as “the Select Committee’s proposal” for simplicity. The minority favoured amendment of section 59, an option that is discussed below in “The next stage”.

Background to the Bill

The full title of the Bill is the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill. It would repeal section 59 of the Crimes Act 1961, which currently gives parents legal permission to use reasonable force for the purpose of correcting their children. Without this permission, these actions would fall within the definition of assault. Parents who used mild physical discipline such as a light smack would therefore be committing a criminal offence. The Bill’s intended effect is to prevent “force, and associated violence and harm under the pretence of domestic discipline, being inflicted on children.”

The Select Committee’s proposal

In its report, the Select Committee recommended keeping section 59, but making far-reaching changes to it. It also recommended changing the name of the Bill to the Crimes (Substituted Section 59) Amendment Bill.

The Select Committee’s proposal is to amend section 59 to specify four situations in which a parent could legally use reasonable force. Force that did not fall into one of these categories would amount to assault, and would therefore be illegal. Significantly, correction would not be one of the “permitted uses”; in the Select Committee’s scheme, the use of reasonable force for correction would always be illegal. This proposal is exactly the same as repealing section 59.

The Select Committee’s four categories would allow parents to use reasonable force for the purposes of:

•preventing or minimising harm to the child or another person;

•preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence;

•preventing the child from engaging or continuing to engage in offensive or disruptive behaviour;

•performing the normal daily tasks that are incidental to good care and parenting.

However the proposed section then states that “nothing… justifies the use of force for the purpose of correction.”

A lukewarm response

Although the Select Committee’s proposed ban on correction would have the same effect as repeal, advocates of repeal have been lukewarm about the proposal. Thus the Children’s Commissioner expressed “major concerns about substituting [section 59] with a parental control section which allows the use of reasonable force in certain circumstances.” The response from advocates of repeal suggests they do not want the law to say that parents can use force against children in any situation, even the situations identified by the Select Committee. This reveals a lot about the ideological nature of their arguments.

Problems of repeal remain

Like repeal, the Select Committee’s proposal would ban the use of mild physical discipline. As a result, all the problems associated with repeal are also associated with the proposal. Chief among these is that the proposal will criminalise parents who use reasonable force for the purpose of correction, such as a light smack or removing a child to “time out” against their wishes. While advocates of repeal have tried to get around this by arguing that these cases will not be prosecuted by the Police, there can be no guarantee of this. It is unrealistic to expose parents to criminal prosecution and expect the law not to be enforced. In fact, a Police Board of Commissioners report records that “should [section 59] be repealed or amended, Police will amend their policies and procedures accordingly to enforce the law.” There is little comfort for parents here.

Introducing confusion

The “compromise” would create even worse law than full repeal, as it is ambiguous and would only add confusion. It is not clear when conduct would cross the dividing line between correction (which would be illegal) and one of the Select Committee’s permitted uses of force. It will fall to the courts to determine the meaning and extent of each clause.  What, for example, is the difference between using reasonable force to prevent a child from engaging in offensive or disruptive behaviour (which would be permitted), and using reasonable force for the purpose of correction?  Arguably, restraining a child from such behaviour is an attempt to correct them, especially if it is done on more than one occasion.

This confusion will cause difficulty in everyday life for parents and guardians, and the only way it could be resolved is through precedent, that is through court cases against parents. This is hardly a satisfactory outcome.

Interestingly, the Select Committee’s proposal has been justified by the argument that repealing section 59 would create a risk of parents being prosecuted for actions such as pulling their child’s hand away from a hot stove or running on to a busy road. However, there would not have been this risk. Restraining your child from the risk of serious imminent harm or death is protected under the legal doctrine of necessity, not correction. Repeal would not have affected this doctrine.

The next stage

The Bill’s second reading is expected in mid-February 2007, during which Parliament will discuss and consider the Select Committee’s report. They will vote on whether or not they wish to retain the proposed amendments and whether to pass the Bill in its original form.

If the Bill passes its second reading, it will proceed to a third and final reading later in the year. At that reading, MPs from any party will be able to propose alternative amendments to the Bill.  National MP, Chester Borrows, has made it known that he has an amendment that he will put forward if the Bill proceeds this far.

If the Bill passes its second reading, this and other possible amendments will become crucial in ensuring that Parliament does not pass unworkable law that criminalises ordinary parents and creates confusion. The Select Committee’s report represented an opportunity to avoid criminalising parents and to introduce greater certainty and clarity to the law with a good amendment. Sadly, the majority declined to take that opportunity.

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