Ron Law: Section 59 for Dummies

Contrary to popular belief, Sue Bradford's so-called ‘anti-smacking’ Bill has already been defeated by the parliamentary process.

Having been the recipient of numerous "anti ‘anti smacking’" or "anti ‘pro beat your kids’" emails I thought it prudent, as a risk & policy analyst, to look at what all the fuss was about so I could make an informed decision myself.

My first port of call was to the Parliament website to look at the Bill being debated and in Hansard, the transcripts of the debates. What I discovered surprised me and is quite odds with what is being debated in public through the media. On Campbell Live on Monday 2nd April, for example, the nation was told that the Bill before parliament was simply about the repeal of section 59 from the Crimes Act; but is it?

Section 59, one of forty-five defenses in the Crimes Act, is about domestic discipline and states;

s59 Domestic discipline
(1) Every parent of a child and, subject to subsection (3) of this section, every person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.

(2) The reasonableness of the force used is a question of fact.

(3) Nothing in subsection (1) of this section justifies the use of force towards a child in contravention of section 139A of the Education Act 1989.

Bradford’s short private member’s Bill simply proposed the abolishing of the above section 59. The “Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill” passed its first reading in Parliament in 2005 and was referred to the Justice and Electoral Select Committee where over 1,700 submissions were received and in response the Bill was totally rewritten.

So what was changed in the Bill referred back to Parliament and now supposedly the subject of intense public debate? Well, actually, nearly everything; the beginning bit, the end bit, and most of the meat or tofu in the sandwich. The public appears to be debating the old version of the Bill that has already been rejected by parliament.

The Bill before parliament now will make it illegal for parents to smack (or use other reasonable force in the circumstances) in order to discipline or correct their child, but it will permit parents to smack their child for a variety of other reasons. So the Bill being debated is not anti-smacking at all… it doesn’t even shift the goal posts, it just turns the goal posts around! It replaces one excuse for smacking with another.

The Bill being debated in parliament now is compared to Sue Bradford’s original ‘anti-smacking’ Bill {{with comments in curly brackets}}.

One set of legal defense criteria needing interpretation by lawyers is to be replaced by another set of legal defense criteria also needing interpretation by lawyers. The new subsection 3 says subsection 2 prevails over subsection 1. So, if there is doubt over whether a parent's smack or use of reasonable force was corrective or preventative or incidental to good care and parenting, the corrective interpretation must prevail. Does this mean that where there is doubt about the intent, the parent must be seen to be guilty of planning correction for the child so must be convicted. Reasonable doubt usually acquits but this Bill means that reasonable doubt might require a conviction. Is there legal precedent for that?

Both the current ‘bad’ section 59 and the new ‘good’ section 59 allow the use of force in relation to parenting that is "reasonable in the circumstances."

In other words, if the Prime Minister is to be believed, the Bill, supported by the Government, will still permit parents to ‘thrash and beat’ their children… it’s just that they’ll have to learn how to do that with the goal posts turned around.

The difference is that, as the ‘bad’ law currently stands, force is only able to be used to discipline/correct children, whereas in the proposed ‘good’ law it will be perfectly legal to use force that is reasonable in the circumstances to protect them or to prevent them from being naughty. What is not clear is whether that includes preventing similar naughty behaviour in the future, surely the objective of discipline.

So, in the New World, Mum Bloggs, has a young child who is pulling items off the shelves, throwing them on the floor, and yelling for a big bag of lollies. Currently, in attempting to save face for herself and the child, she might say to the child, "If you don't stop that naughty behaviour I will smack you when we get home." The child continues being naughty, so Mum bites her lip, cuts short the shopping trip, takes the child home and 'corrects/disciplines' the child with a smack on the bottom. Soon it could be illegal to do that.

However, soon she will be able to say to the child in the supermarket, "I am going to smack you now to prevent you from engaging or continuing to engage in conduct that amounts to a criminal offence (eg; destruction of property)," and/or, "I am going to smack you to prevent you from engaging or continuing to engage in offensive or disruptive behaviour," and/or “Given that 80 percent of New Zealanders believe that smacking is a tool that a normal parent should be able to use incidental to good care and parenting, I am about to perform a normal parenting task, called smacking, that is intended to stop you being naughty," and smack the child there and then in the heat of the moment.

So, what’s changed? Well, nothing really, except mums and dads will now have to rehearse how they hold their tongue and what they say when they shame their child and themselves in public as a result of the child's offensive or disruptive or criminal behaviour.

Of course, they could always reward their child's offensive or disruptive behaviour and shut them up by giving them those obesity inducing lollies that the child wanted in the first place.

Discipline is a wider concept than physical punishment. Discipline involves the use of a variety of techniques or strategies with the aim of teaching the appropriate way to behave. Physical punishment is one discipline technique. Others include explanations, praise, role-modelling (showing by example), distraction (particularly for young children), withdrawal of treats or privileges and removing the child from the situation (‘time-out’). The use of force in any of these circumstances would now be illegal.

If you send your child to their room for time out for offensive or disruptive behaviour and they refuse, will it be reasonable in the circumstances to take hold of them and forcibly take them to their room? If not, then what protection does the Bill provide if someone then claimed that you had used force?

The defense team in court would argue that you legally used reasonable force in the circumstances to prevent offensive or disruptive behaviour; the prosecution would argue that you illegally used force to discipline or correct offensive or disruptive behaviour.

A question that society needs to address is, “should it be lawful in ANY circumstance to use ANY force (however that might be defined) to manage one's child? If the answer is yes, then surely our parliamentarians should define what is/is not acceptable force.

Perhaps the Prime Minister addressed the core of the issue when, having bagged opponents of the Bill as people wanting to “thrash and beat” their children, she went on to say, "The issue is how to empower police so that they can get a conviction where someone is clearly beating a child." I doubt that even the Prime Minister’s most bitter opponents would disagree with her on that. Let’s state that in the purpose of the Act.

Perhaps the Police aren’t the only ones requiring a Code of Practice; maybe Parents do too! Perhaps parents need guidelines as to what is acceptable/unacceptable force in given circumstances. Let’s say that the use of reasonable force excludes the use of things like belts, canes, hosepipes, jug cords, pieces of wood, horse crops and closed fists. Let’s say that the use of smacking with an open hand is/isn’t acceptable force ‘in the circumstances.’

There are two debates taking place. Parliament is debating one Bill, and the public is debating a Bill already archived in the history books. The fact is that the so-called ‘anti-smacking’ Bill does not repeal section 59 as believed. No one appears to win with the proposed changes; apart from lawyers. The proposed changes don’t even shift the goal posts. All they do is turn the goal posts around and create confusion.

Ron Law - Risk & Policy Analyst, Juderon Associates (Juderon@gmail.com)

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