by frog
A number of media outlets today have run stories about Sue B’s Section 59 Crimes Act Repeal Bill, suggesting that her recent comment that it may be a possible to clarify in the wording of the Bill that it is not intended to criminalise parents who give their children a light smack is some kind of concession or back-down.
It’s not. Despite the Bill being widely and erroneously reported since its earliest stages as a Bill to ban smacking, Sue has actually maintained all along that this is not its intention – as all of these old press releases clearly show.
The aim of the Bill is to remove a legal protection for severe child abuse, like the case in Timaru where the use of a riding crop to discipline a child was deemed “reasonable” by a jury, not to prevent parents from lightly smacking their children. A police legal opinion on the law change clearly states that police would not move to prosecute parents who use physical force to remove their children from danger, and in all other cases would take the amount of force used into consideration before making an arrest.
Sue’s recent comments simply suggested that these points might be able to be accommodated in the Bill itself – most likely in the commentary which precedes it – to make it 100% percent clear that the Bill is not intended to ban light smacking. If the Bill hadn’t been misrepresented as a smacking ban along this wouldn’t even be an issue, so it’s all a rather stupid storm in a teacup.
Published in Health & Wellbeing | Society & Culture by frog on Tue, May 23rd, 2006
Tags: environment
on the trolls and those who are unable to keep on topic
If Section 59 was repealed, any statement of intent on the Explanatory note will not have legal effect. Surely you know that! Light smacking would still be an offence, as the Explanatory Note is for explanation only, it doesn’t have legal effect. What matters is what the law will say, and if the Bill was passed, it would only be the repeal of section 59, not the Explanatory Note, that would become law more here
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best kids are sorted out
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“It’s not. Despite the Bill being widely and erroneously reported since its earliest stages as a Bill to ban smacking, Sue has actually maintained all along that this is not its intention – as all of these old press releases clearly show.”
Certainly that has never been Ms Bradford’s stated intention, however, as the bill is presently drafted that will be it’s effect.
The bill has not been misrepresented, but perhaps Ms Bradford’s intention has – Ms Bradford, intending not to ban light smacking, yet introdcued a bill that would ban light smacking. As you say, this can now all be cleared up.
Obviously, leaving the bill as written, or with only an amended explanatory note would be unacceptable – to not only Ms Bradford’s opponents (who don’t want legislation banning light smacking), but also to Ms Bradford (who agrees with her ‘opponents’ on this point that light smacking should not be criminalised).
Defining reasonable force is highly problematic, as she has said it suggests that the state condones violence (even if it only really condones reasonable non-violent force). The solution to me, seems to be to amend s 59 to include a non-exhaustive definition of “unreasonable force”: essentially the defence stays as it is – that parents may use reasonable force – but there is a statutory explanation that the use of implements, or hitting above the waist, or whatever, is never reasonable.
Matters that do not fall within that can of course still be found to be unreasonable on general principles, and there would be nothing in the law that says any form of hitting is okay.
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I’ve said it before and I’ll say it again,- the problem is not that people are allowed to legally use physical violence to correct childrens’ behavior. The problem that we face is that it is illegal to use physical violence to correct other adults behavior.
- when a heated discussion gets too theoretical, a quick slap would be the perfect way to cut through the passive agressive b.s. (any one whos sat through long meetings knows what I’m talking about)
- respect.
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Point well taken everybloggercounts – the explanatory note doesn’t in itself have legal effect. However, for parents to actually end up in trouble with the law for light smacking there would have to be a) a police decision to prosecute, which seems very unlikely given the police legal opinion on this issue referred to in the original post and b) a Judge willing to interpret the Act in such a way as to include light smacking. While the explantory note or commentary doesn’t hold specific legal weight, Judges do take what they believe to be the intent of Parliament into account, and if that intent has been clearly spelled out it would be a pretty activist Judge who attempted to ignore it.
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… which is the very reason why you put such a statement in the bill itself, outside the commentary or explanatory note to make sure judges adhere to the law, and to the intent of the law.
Judicial inconsistancy is the very reason why this bill was drafted in the first place.
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Edge:
“Certainly that has never been Ms Bradford’s stated intention, however, as the bill is presently drafted that will be it’s effect.”
The police’s have issued a legal opinion are saying that they don’t read it that way. Are you claiming they are lying and that they will suddenly start reading it that way if it is passed?
If you aren’t claiming that the police are lying about the bill, then how can you claim that it’s effect with be to stop light smacking?
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“The police’s have issued a legal opinion are saying that they don’t read it that way. Are you claiming they are lying and that they will suddenly start reading it that way if it is passed?”
No. I suggest that you are perhaps reading too much into the police opinion.
There are a couple of issues that ought not to be confused here:
1) Whether, if Ms Bradford’s bill passes in its present form, it will be a crime to lightly smack your children; and
2) Whether, if Ms Bradford’s bill passes in its present form, the police will charge parents who lightly smack their children.
The post itself gives a reasonable synopsis of part of the police opinion:
“A police legal opinion on the law change clearly states that police would not move to prosecute parents who use physical force to remove their children from danger, and in all other cases would take the amount of force used into consideration before making an arrest.”
The police opinion dealt with a number of issues:
1) It stated any application of force (no matter how light the force or transient its application) on a child would be assault;
2) However, that the various other defences in the crimes act would still be available to parents, such that the use of physical force to remove children from danger would not be illegal (the bill does not remove the self defence or defence of another defence from the crimes act);
3) It also stated that the police would consider the amount of force used before laying charges;
So – lightly smacking your childen, or carrying them against their will to a time-out will be illegal, however the police probably won’t charge you, even though you have actually committed a crime. Just like a number of other instances between adults at the moment – guy cuts in front of me in the ticket queue for the rugby, and following his refusal to leave after my having asked him to I push him out of the way.
Is what I have done a crime? Yes. Could the police charge me with assault? Yes. Could a court convict me of assault? Yes. Will the police charge me, even if the guy complains? Probably not. Even though I would have broken the law, the police probably would not charge me. So it will be with parents who lightly smack, or carry their children to a time-out. They will be criminals, but the police just will decide not to charge them either.
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I would just add this – quoting from the Police opinion:
“If section 59 was repealed in its entirety parents would not be authorised to use reasonable force by way of correction … smacking of a child by way of corrective action would be an assault.”
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… and after all is said and done, one day ‘light smacking’ (or a ‘loving smack’ as some call it) will be regarded as ignorant behaviour and we won’t believe we even had a law that gave caregivers the right to ‘use reasonable force’ on children.
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STOP “State Rape” NOW
Cindy kiro and Andrew Beecroft: Well intentioned liberal dullards or Vicious Labour Party Sychophant Fascists?
Kiro and Beecroft’s promotions of CHILD I.D’s; i.e. the aim of treating people like dogs with dog tags and registering them into a central database is unethical, dishonest and dangerous.
The Green Party should say something about this bullshit – because it will be the most disaffected children, young people and families – especially the poor ones – who will be abused by this state-sanctioned violence.
This tendency in NZ toward surveillance over children’s education, mapping their every movement (through CYFS,hospital, etc) and an “early years plan” is at least fascistic.
As with schools, there will be very little capacity to challenge and resist. The status quo is not “the only way” – so this must stop – and the Green Party should vigorously fight against this – it will be easy to get the people on-side if the issues are explained properly and honestly.
This country really is going backward – and it is accelarating. The over duplication of records in varying state agencies – hospital, dentist, kindergarten/school, CYFS, IRD, police, WINZ – universities is absolutely unjustified in this little country – there’s NO NEED for so much interference. When children are tied into these Third Way bureaucratic plans and entered into a state database then where is the capacity for resistance?
I think this development is testimony to the sort of complacency that infects this country. Another nail in the coffin – one example of the seemingly most mundane issues, the everyday issues that seem to be always overlooked — yet these are precisely the issues we should be watching out for.
Im thinking of the bigger picture which is that this sort of thing can be imposed on the people, regardless of what they think about it – And — it will be the disaffected/the poor/the abused who will be most monitored, treated, managed, coerced and degraded.
I am tired of supposedly well-intentioned buraucratized liberals
assuming they know what is best. It is bad for people’s independence and
capacity for profound interdependence/committed practice of comaraderie.
As I said, while their intentions might be OK, this sort of surveillance and talk of every child having “a set direction and plan” is immoral. We must not allow technocrats to overstep their station – they have far too much influence.
Seann Paurini
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I notice the lack of female contribution to this thread …
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We the common people need to be able to have the ability to voice our opinions/facts about CYFS. I am putting my hand up to start a pressure group to force either legislative or administrative change to make CYFS more accountable for their actions, and give people a bigger voice and the abiility to complain if wrong-doing has been done by CYFS.
I need your support and judging by comments written to CYFS-Watch and this there are thousands of us out there.
SO COME JOIN THE MOVEMENT FOR CHANGE, EMAIL ME at ajs_customs@woosh.co.nz.
Attn; Alex Fulop.
- Alex
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CYFS are meant to be accountable to the Children’s Commissioner, who has a statutory duty (section 13 Children’s Commissioner Act 2003) to monitor and investigate their actions or omissions. That’s where complaints about CYFS should go in the first instance.
If she’s not carrying out her statutory duty in that regard, then I’m sure the Green MPs would want to hear about it.
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