12 February 2018
Legal Analysis of Smacking Law Raises Serious Concerns

SMACKING LAW FAILS TO BALANCE LONG TERM EFFECT ON PARENT-CHILD RELATIONSHIP: CHEN PALMER

A legal analysis of the 2007 anti-smacking law says that the law is confusing to parents, police and the legal profession; that statements and guarantees made by politicians were misleading; and that a comprehensive analysis of the effects of the law on families is impossible because of the difficulty in obtaining copies of judgements, and the absence of key data from the police.

The analysis provided to Family First NZ in January by public law specialists Chen Palmer is an update of an earlier Opinion in 2014, but reviews other cases which have become relevant since that time.

“it is just over 10 years since the hugely unpopular anti-smacking law was rammed through Parliament against the better judgement and will of the New Zealand people. This legal Opinion by Mai Chen will sound further warning bells to families and is a rebuke to all the politicians who thought they knew better than the public,” says Bob McCoskrie, National Director of Family First NZ.

In one of the most concerning comments made in the Opinion, it says:

“We have not been able to find any decision where the Court has, at sentencing, explicitly balanced the long term effect of the prosecution or the conviction on the parent-child relationship against the level and frequency of the physical discipline the parent is being charged with.”

The Opinion concludes that; “statements made by politicians to the effect that the amended section 59 does not criminalise ‘good parents’ for lightly smacking their children are inconsistent with the legal effect of section 59 and the application of that section in practice.”

Major concern is also raised about the police discretion clause, what the politicians said about it during the passing of the law, and its effect.

Other key issues raised in the Opinion include:

• Difficult in obtaining relevant cases to review - “While District Court cases may have limited precedential value, the difficulty of obtaining copies of judgments at this level prevents a comprehensive analysis of how the relevant law is being interpreted at the level which most affects parents. Such analysis is desirable where amendment or clarification of the law is sought.”

• Police reviews (since 2012) - “The Police are not able to provide an analysis of how many parents are prosecuted under this section, how many are discharged without conviction and why, and how many are convicted. The absence of this key data is a further impediment to an analysis of whether the law is working as Parliament intended.”

• Confusing legislation - “An analysis of section 59 and the relevant case law shows that non-lawyers, including parents and the Police, struggle to understand and apply section 59. The cases also demonstrate that even lawyers and judges struggle to apply section 59 correctly, with examples of cases going to the District Court, the High Court and then being overturned by the Court of Appeal, as well as equivocal guilty pleas being accepted.”

• Police Discretion - “Subsection (4) is a significant aspect of s 59, yet there is little to no guidance available as to how the Police should exercise its discretion, nor information available as to how it has and does. Consequently, it is worth considering making a request to try to obtain data in respect of this. While the type of information requested would need to be redacted by the Police before it could be disclosed, we do not see any reason why it could not otherwise be provided.”

• Definitions of ‘criminalise’ and ‘good parents’ - “The problem with interpreting Parliament's intention as expressed by the politicians during the various stages of the debate on the Bill is that much depends on the definition of the words used by the politicians - to "criminalise" and "good parents".”

• Subjective application of the law - “The starting point in any case involving the use of force by a parent against their child is whether the force was used for the purposes of correction. This requires an examination of the parent's subjective purpose.”

• Confusion for parents - “Parents will struggle to know whether their actions constitute an offence under section 59 or not, and in cases of doubt, the police will prosecute and leave it up to the Court to determine. This is demonstrated in the cases we have analysed. Further, the cases also show that even lawyers and judges struggle to understand and apply section 59 correctly.”

Family First is calling on the government to pass a law which will give certainty and clarity to parents.

An alternative law, which was rejected purely for political purposes in 2009, has been resubmitted and Family First will ask the government or an MP to introduce the bill.

“The smacking law has been so bereft of success that supporters have had to commandeer a claim that good parents haven’t been affected and that no-one has been prosecuted by it - which has now been proved beyond reasonable doubt to be patently false.”
ENDS

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