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HOME The confusing Bradford/Clark/Key/Dunne Bill1 This Act is the Crimes (Substituted Section 59) Amendment Act 2007. 2 This Act comes into force one month after the date on which it receives the Royal assent. 3 This Act amends the Crimes Act 1961. 4 The purpose of this Act is to amend the principal Act to make better provision for children to live in a safe and secure environment free from violence by abolishing the use of parental force for the purpose of correction. 5 Section 59 is repealed and the following section substituted:
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59 Parental control(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.
(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction
(3) Subsection (2) prevails over subsection (1).
(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 in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.”
Apart from clause 6 with Amendments to the education Act & clause 7 relating to a review of the Act two years after it becomes law, the text above is the full text of the law.
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Does it remove the Term Reasonable Force? |
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HOME Supporters of the law change argued that the old sec 59 which said parents were “justified in using force by way of correction towards a child if the force used is reasonable in the circumstances” was the cause of many abusive parents escaping prosecution. (In fact only 8 have successfully used that defence in jury trials in the previous 15 years.) If the lack of definition of the term ‘reasonable force’ did allow for child abuse under the old law, as claimed by the anti-smacking brigade, then surely this term should not have been included in the new law that they themselves have written! But the term 'reasonable force' has not been removed. There are four circumstances where reasonable force is permitted in the new law, but the subsection (5) 2 makes it absolutely clear that the use of reasonable force for any form of correction is a criminal offence. Why is the State prepared to trust parents to use reasonable force responsibly in one circumstance, but not another?
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Despite the frequent use of the term ‘antismacking law,’ it is not actually smacking that is banned, rather it is any form of correction that requires the use of reasonable force. In other words, you can still use reasonable force (a light smack perhaps) to stop a child from hurting another child or themselves, but you cannot use reasonable force (a light smack perhaps) to correct a child so that they learn that such behaviour is unacceptable. A small minority of misguided yet well meaning individuals are ideologically opposed to the correction and discipline of children by their parents. They believe that the timeless parenting values of our previous generations are wrong, and that physical discipline creates violence. Those who disagree with them are labelled as violent and abusive. But good parents have always known the difference between a smack to correct a child’s behaviour and the abusive beating of a child. They correct and train their children to help ensure they will not be violent adults!
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Has the new law criminalised good parents? |
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The John Key amendment makes one thing crystal clear. Twice the new clause refers to an “offence.” Therefore, it is beyond dispute that any parent that uses a smack or any other reasonable force to correct their child is committing a criminal offence regardless of whether they are formally prosecuted or not.  A person shoplifting is committing a criminal offence regardless of whether they are caught and prosecuted. Every law breaker is a criminal. If prosecuted and found to be guilty they then become a convicted criminal. The new law has made thousands, perhaps hundreds of thousands of good parents into criminals. In the two years since the law came into force hundreds have been investigated, and at least twenty have been convicted.
How long will discretion last?Even with a shoplifter it is likely the police would use their discretion and consider it was not in the public interest to prosecute, the first time the person was reported. However, no police officer is going to be able to justify the use of their discretion for repeat offenders. In other words, the first time a parent is reported to have smacked their child, they may escape prosecution but the reporting of repeat offences, must certainly result in prosecution. Even taking a child to time out against their will (since it involves the use of force) for the purpose of correction is a criminal offence as confirmed by Sir Geoffrey Palmer, President of the Law Society and Peter McKenzie QC. Remember that the very purpose of the Act is to “abolish the use of parental force for the purpose of correction.” The very aggressive campaign in schools by police and teachers to inform children that they should report their parents for any smack they receive is proof of this intention. No one would object to children being told they should talk with the teacher if they feel they are being abused and beaten. However, this new authority is dangerous in the hands of children who are not yet ture enough to use it objectively and who may report parents out of anger or spite.
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What is the Purpose of the New Law? |
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HOME Are children now treated the same as adults by the law?
Supporters of the new law always used the argument that the old law treated children differently from adults because children could be corrected with reasonable force while it was always illegal to smack a fellow adult with any force at all. However the new law continues to treat children differently. In fact our entire legal code treats children differently since they are not given criminal sentences like adults for crimes they commit until they reach a certain age. Police, as those responsible for maintaining law and order in society, have always had the authority to use reasonable force to correct adults' unacceptable behaviour. Parents, as those responsible for maintaining law and order in the home, have, in the past, had the authority to use reasonable force to correct children's unacceptable behaviour. Under the new law, however, neither parents nor the police have any authority to use reasonable force to correct a child. The new law now treats children very differently from adults and creates an even greater anomaly!
Will this law make children safer and families healthier?No! The Act drives a wedge between parents and their children. Parents are cast as the "enemy". In fact, it is parents who are the only people qualified to provide the mix of affection and correction which every child needs to create a caring and safe environment within the context of the family. It is parents, not the State, who have the task and the joy, day by day, to nurture, train and educate their children. The intervention by the State that this Act represents, violates parental discretion necessary to determine, in each situation, the appropriate way to correct wrong behavior. The natural love and affection which form the unique bond between a child and their Mum and Dad ensures that even discipline, although painful at the time, builds and enriches family life to the benefit of us all. “Should a smack as part of a good parental correction be a criminal offence in NZ?” |
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