What to make of the new s59?
So the Justice and Electoral Select Committee has reported back on Sue B’s bill to repeal section 59 of the Crimes Act. By now you will have seen news reports of the committee’s proposed amendments, which raise some interesting issues.
I thought a reproduction in full of some of the key sections would be useful.
First of all, here’s the new purpose of the bill:
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.
You can’t get much stronger than that - in fact it’s stronger than Sue’s original wording, which is great. It makes the intention of the bill crystal clear.
Then we have the new s59 to replace the old one. Subsection 1:
(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.
This is the more controversial bit. Sue, and many child advocate groups including the Children’s Commissioner, have always advocated full repeal of s59, and this is still her preference. The feeling among these groups is that none of what is detailed in the subsection 1 would be affected by simple repeal. However, there was strong concern among some members of the public and some MPs that parents would be criminalised for this type of normal parenting behaviour, so the subsection was included as an assurance to allay those concerns.
(a) and (b) are pretty straightforward, but concerns have been raised about (c) and (d) - do they in fact re-allow corrective parental force? On a wide interpretation they could be seen to.
However, I don’t believe this will be the case. Subsections 2 and 3 make it clear what is to be considered most important:
(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).
An example of (1)(d) in action might be that it’s ok to hold a struggling toddler still while you get their jersey over their head, but not ok to give them six of the best to teach them to sit still. Or (1)(c) that it’s ok to take a tantrum-throwing child by the arm and march them out of the supermarket if they are tipping displays over and screaming blue murder, but not ok to cuff them around the ears in the car afterwards to punish the behaviour.
No Right Turn is concerned that we’ll start seeing force used in classrooms again, but the Education Act already takes care of that, and David Farrar seems to think that it will be ok to “whack your kid in the face to prevent him from being disruptive”, which is patently ridiculous.
Aside from those extreme examples, I think some concern is justified about these new provisions, but when the overall purpose of the bill is stated as emphatically as it is, it’s worth passing for the protection of children and (hopefully) a shift towards a less violent society. Here’s hoping.
November 21st, 2006 at 3:44 pm
um..sorry frog….
you are spinning..(albeit trying to do it in a ‘balanced’ way..)
i have supported this bill long and hard at whoar..and other forums..
and to my mind..to use a sporting analogy..sue ‘choked’..just before the finish line..
how could she have lost her focus/will that way..?..and allowed her hard-fought for private members bill to be emasculated/comprimised to the point of worthlessness…
it is bullsh*t…the different clauses contradict/cancel each other out..
nothing has really changed…eh..?
this bill now sets new benchmarks for the most minimal of incremental gains..
the only good i can drag out of this mess..is the fact that the debate around the bill has de-normalised the habit of children being slapped/hit in public..
it really has become a case of ‘just you wait ’till i get you home..!..’
w.t.f. happened sue..?
(napoleon gets to the gates of moscow..and then ‘gives up’..and goes home..)
whoar..!
phil(whoar.co.nz)
November 21st, 2006 at 4:45 pm
I think some of the argument against the definition is a little out there, but there is cause for concern, from Sue’s perspective and others’.
Under the law as it now stands reasonable force may be used against one’s children for the purpose of correction. It cannot presently be used for punishment, for example.
There are no doubt some parents who smack on occasion, not so that their children learn not do something in the future, but to punish their children. This is presently illegal - that force, though reasonable, is punitive, not corrective. The bill as amended may change that (I say “may” because it’s rather hard to tell).
November 21st, 2006 at 8:05 pm
I am dead against this bill, it is not for the state to tell me how to raise my kids.
I fear there may well be a an ulterior motive when it comes to this piece of legislation.
November 21st, 2006 at 8:57 pm
yeah big bruv…
it’s a real devious ‘ulterior motive’ there b.b..
all that work..all that lobbying..it was meant to stop children getting hit/slapped/bashed by adults..
do you often just mutter bits of alarmist rhetoric..b.b..with absolutely no substance behind it..?
“i fear..etc etc..”
phil(whoar.co.nz)
November 21st, 2006 at 9:33 pm
I’m against.
A gentle slap, given by a parent to their child, is no more assault than closing them in their room for “time-out” is kidnapping.
Meanwhile, the real abusers carry on regardless.
Hope this ridiculous law gets the short-shift it deserves. Like in the UK.
November 21st, 2006 at 11:12 pm
Phil:
(napoleon gets to the gates of moscow..and then ‘gives up’..and goes home.)
Talk about poor choice of analogy!! Napoleon would have been wise to do exactly that, he would have saved his army from extermination by General Winter. So, implicitly, you’re saying that Sue should have stuck to her (non-violent) guns in order to ensure complete defeat of the bill?
Ideological purity rather than incremental change eh!
the debate around the bill has de-normalised the habit of children being slapped/hit in public.
If that’s indeed true, then it’s a HUGE victory, far more important than mere legislation.
My main concern about the legislation is that, although it would make “smacking” illegal, any decision to prosecute or not would apparently be left to the discretion of the police. That is the opposite of the rule of law : make a law with no intention to apply it evenly, and you have created an instrument that allows cops to give free play to their personal prejudices, opening the door to racism, favouritism and corruption.
A little bit like an anti drink-driving law that sets a threshold of zero blood alcohol.
November 22nd, 2006 at 5:35 am
alaister…when virtually everyone looks at this…they comment on how the bill has been ‘comprimised’..
(now..when that bill is to stop the hitting of children..and it dosen’t..it just continues as an ‘enabler’..?…well..!..)
any dictionary definition of that word (comprimised) will illustrate what i am/they are talking about..
this bill says/does nothing alaistair…it changes nothing..
i am wracking my brains to think of a more ineffectual piece of legislation…(or an acceptable analogy..)
so..your riposte to my critque on this useless piece of paper/waste of enormous amounts of time/energy/goodwill… is to criticise my choice of analogy…?
what’s your analogy to tie around this little mess…?
and to agree with my assesment of the (involuntary) benefits of the debate around the bill..
that’s it..?..that’s the sum of your defence..?
i repeat..the legislation is still an ‘enabler’…
nothing has changed..
bah..!
phil(whoar.co.nz)
November 22nd, 2006 at 6:09 am
Why are the benefits of the debate around the bill “involuntary”????
On the contrary. I should think that getting the whole country debating the subject was a central part of Sue’s strategy. And, as I say, if that means that the old implicit consensus has been re-evaluated, to the extent that people would now hesitate to hit their kids in public, wow, that’s fantastic!
Does anyone else feel a sea change in attitudes ?
I also think that getting the legislation through the select committee was by no means a foregone conclusion. And I disagree that it’s not a significant advance :
http://www.nzherald.co.nz/section/story.cfm?c_id=1&objectid=10411719
Children’s Commissioner Cindy Kiro said she was glad the committee agreed the law had been used “to justify child abuse, with cases of parents or caregivers using riding crops or implements to punish children”.
Clearly, parents will no longer have legal cover for beating their children. A National MP tried a reargard action :
The committee rejected a proposal by National MP Chester Borrows for a different compromise which would have defined, and allowed parents to use, limited reasonable force.
It would have allowed light smacking that did no more than cause “transitory and trifling discomfort” and did not cause bruises, welts, skin cuts or broken bones.
i.e. even the wackers have to admit that it’s indefensible to inflict bruises, cuts etc…
November 22nd, 2006 at 9:46 am
My only comment is that we have by this process, obtained the worst of all possible outcomes. We have barely altered the s59 reality, which is that there are still vague permissions written into the law that allow parents to spank/hit/whack/smack their kids. Arguments about what these actually mean will continue. We lost the opportunity to be specific. The bill could not IMHO gotten to this stage without at least, those vague permissions… which is rather like what happened to Napoleon really, he did REACH Moscow, but he was defeated more by his overreaching himself than by the Russians or the winter although both beat the cr@p out of him. Kutusov was no fool. A pyrrhic victor marched into Moscow only to leave 5 weeks later. Somehow getting this bill passed looks a lot the same to me.
At the same time we have managed to become inextricably linked to one of the most unpopular measures ever to be proposed to the parliament. Last poll I saw showed this getting a mere 20% of the electorate on-side, and damned few undecideds.
So we changed a few words STILL leaving the issue vaguely in the hands of the courts.
We succeeded at annoying a majority of New Zealanders.
We failed to accomplish what we attempted.
We failed to accomplish what we could have accomplished, and we practically wrote the next EB bulletin proclaiming us to be out of touch with the rest of the country.
I know what success looks like. This ain’t it.
respectfully
BJ
[Now donning my flame-resistant suit and retiring to the bomb shelter]
November 22nd, 2006 at 10:53 am
phil u Says:
November 21st, 2006 at 8:57 pm
yeah big bruv…
it’s a real devious ‘ulterior motive’ there b.b..
all that work..all that lobbying..it was meant to stop children getting hit/slapped/bashed by adults..
do you often just mutter bits of alarmist rhetoric..b.b..with absolutely no substance behind it..?
“i fear..etc etc..�
phil(whoar.co.nz)
phil
The ulterior motive is this governments strange and dangerous desire to get involved with the family.
It is plain for anybody to see that they have had a social engineering agenda and that by and large they have (sadly) achieved much of what they hoped.
Not ONE child will be saved by this stupid law, all it does is force somebody else’s values on thousands of good parents.
A couple of final points, do you have a problem with people who are suspicious of this government?….or are we supposed to blindly accept the socialist crap they inflict upon us?
November 22nd, 2006 at 12:36 pm
If anyone needs a good spanking, it’s Nicky Hager!
November 22nd, 2006 at 1:42 pm
PeterExitsLeft said:
A gentle slap, given by a parent to their child, is no more assault than closing them in their room for “time-out� is kidnapping.
Peter, that was the analogy that the Select Committee used in its report. Technically, when a parent closes a child in a room, for corrective purposes or for any other, the offence of kidnapping under section 209 of the Crimes Act 1961 occurs. This offence carries a maximum sentence of 14 years imprisonment, and is a much more serious offence than assault on a child. The section 59 defence doesn’t apply to kidnapping, because it is the detention, rather than the force used to achieve the detention, that is the actus rea of the offence. Yet I am not aware of one prosecution that has been instigated against a parent for a mere “time out” detention.
I supported full repeal of section 59 because it would have worked similarly - it would not have been in the public interest to prosecute for trivial applications of force, whatever the purpose of the application of the force.
The compromise position reached by the Select Committee sets out new purposes for which the application of reasonable force to a child is justified. They are all circumstances that are not covered by the current section 59, but like the kidnapping analogy, are not circumstances in which prosecutions have been initiated in practice. The new section 59 is imo unecessary - it is only there to reassure MPs who had been subjected to vigourous lobbying by the pro-spanking advocates who wrongly claimed that repealling section 59 would open parents up to prosecution for all sorts of innocuous applications of minor force.
The continued use of the term “reasonable” is unfortunate in that it is still open to interpretation - but at least it can’t be for the purpose of “correction” and where the defence is raised juries will be instructed, in accordance with section 5 of the Interpretation Act 1999, that it must be interpreted in the context of the purpose of the Crimes (Substituted Section 59) Amendment Act: “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…”
So while full repeal would have been better, the Bill as reported back is an improvement on the current situation in that it sends the clear message that hitting kids is NOT OKAY.
November 22nd, 2006 at 2:00 pm
Toad
There are a couple of issues that few who support this bill can or will answer, please tell me ONE child that would have been saved if this bill had been in force over the last few years.
This issue does not have wide spread support, when people like Bradford tell us that they have no intention of prosecuting parents who smack their kids we all know that is rubbish, are you telling me that if i lived next door to Bradford (and thank god I do not) and she noticed me smacking a disobedient or aggressive child she would not threaten me with legal proceedings.
This whole bill stinks, it does not matter that we (the public) do not want this, just like the 100 MP bill and the repeal of MMP bill (the one that 80% of Kiwis wanted) the social engineers from the left are so arrogant to think that they know best.
November 22nd, 2006 at 2:38 pm
Big Bruv,
Your first question is is impossible to answer, because it invites speculation as to what would have happenned or not happenned in individual instances if the law were different. Repeal of section 59 is about sending the message to parents that hitting children is not okay. So is the SKIP programme and other programmes that teach parents how to discipline children without violence. Together, I am confident that they will both save many children from physical and mental harm, and help children to grow up to find non-violent solutions to conflict, rather than the “might is right” mentality that spanking currently encourages.
In reply to your second question, I can’t answer for Sue Bradford, but from what she’s said, I think she and I have similar views on the matter.
So, replying personally, if it were one light smack on the bum for playing on the road, I would not even consider intervening. But if, for the same misdemeanor, I was a 15 minute process administered with a “rod of correction”, as has been advocated as “reasonable” and even necessary by some fundamentalist Christian groups, I’d be on the phone to the Police.
And please try to refrain from using loaded terms like “social engineers” to put people down. I’m sure we all have at least one thing about society that we would like to change - I have plenty - or do you think we live in a perfect society and have no need for social change of any sort?
As for the percentage support, every poll I have seen has been loaded or ambiguous, with questions put such as “Should smacking children be illegal?” which is not what the Bill was ever about - see my analogy re time-out and kidnapping in my post above. Even responses to the question “Should section 59 of the Crimes Act be repealed?” will be influenced by the blatant untruths and misinformation about the practical effects of repeal that have been perpetrated by the pro-spanking brigade. If a poll were to ask the question “Should it be legal for a parent to beat a disobedient child with a riding crop or a hosepipe for the purpose of correction?”, I think there would be a very different response. Yet that is what has happenned, and is what the Courts have found to be legal.
November 22nd, 2006 at 3:23 pm
Toad
I am not sure why you find the term social engineering to be so offensive, it is no secret that the Labour government has this at the heart of its social policy and have been implementing this policy for some time.
While I admire your passion it still does not follow that this law would have saved the life of a single child, therefore I respectfully suggest that there is a hidden agenda behind this law.
The issue that interests me most however is the comment you made about the “light smack on the bum” can you not see that this is the very thing that upsets people like me?, you said to me that you “would not even consider intervening” my point is that you have no right to intervene in the first place and if this law is passed you still have the option of reporting me to the police because of something you do not agree with.
Nobody is suggesting that any parent should be allowed to thrash a child but as I said not one parent who currently does this will stop just because of a change in the law.
BTW….the riding crop incident often used as a reason for this law….apparntly the crop was used because the son was about to smash his father across the head with a lead pipe.
November 22nd, 2006 at 3:28 pm
>>I was a 15 minute process administered with a “rod of correction�, as has been advocated as “reasonable� and even necessary by some fundamentalist Christian groups, I’d be on the phone to the Police.
So would I. But that’s the very opportunity that was missed by placing ideology before pragmatism. There was a lot of incremental value that could have been achieved, but was blown by ideological intolerance.
“Wackers” - heh. Should we call time-outers “kidnappers”?
November 22nd, 2006 at 10:02 pm
Poor Nicky Hager!
November 22nd, 2006 at 10:07 pm
I think that it seems a bit strange to prevent parents from giving children a very light smack, while we sit in our living rooms watching endless violence on TV. Is anything going to be done about that??
November 22nd, 2006 at 10:12 pm
Yes, poor Nicky Hager! I wonder whether Dr Brush’s wife should be concerned at this development?
November 22nd, 2006 at 10:34 pm
Prim
$ $ $
respectfully
BJ
November 22nd, 2006 at 10:50 pm
I thought Dr BRUSH’s (I like it) wife had left him.
November 22nd, 2006 at 10:51 pm
phil u & bj chip:
you seem to be interpreting the use of force to imply only impact force.
in the context of the wording it is evident that the justifiable force will include physical restraint - e.g. putting an arm around the kid or even hauling them away by the arm or picking them up or otherwise grabbing them - it will not include striking.
i am actually amazed and delighted that select committee has come up with such strong protection for the children.
performing the normal daily tasks that are incidental to good care and parenting could include dressing the kid, so frog’s example of holding the child still while putting clothes on them was bang on.
if this passes into law i will be satisfied
November 23rd, 2006 at 7:40 am
Andrew
It amazes me that supporters of this bill miss the point entirely, you can be sure that those who drafted the bill do not.
Normal parents must have the right to smack their kids as part of the education and discipline process, the emotional rubbish many use about protecting kids from beatings is a red herring.
This is simply another way the extreme left can get involved with the family unit, for that reason alone this bill must be opposed and defeated by parents.
November 23rd, 2006 at 9:17 am
why should parents be allowed to smack thier children? it’s demeaning.
plenty of parents have raised their children very well without corporal punishment, and there are plenty of experts available out there to help parents with more positive parenting advice, for those who are willing to learn.
the government is there to protect all citizens, not merely adults, so it is right & proper that the government should be “involved” to that extent.
November 23rd, 2006 at 9:38 am
Its more than demeaning. I became suicidal because of the legal “smackings” under S59.
November 23rd, 2006 at 10:10 am
I was smacked as a child. Never bothered me.
My brothers and I used to inflict WAY more damage on each other…
November 23rd, 2006 at 10:19 am
Andrew
It is of course your choice to smack or not smack, it is also none of your business (or Sue Bradford’s) to tell me or any other caring parent how to bring up our kids.
The facts are that this bill will do NOTHING to save kids from child abuse, the public do not want it yet the arrogant pollies will push ahead with it anyway as they seem to know best.
November 23rd, 2006 at 10:29 am
Then, PeterExitsLeft count your blessings. There are many who have been damaged by such “smacking”. I saw plenty of this in group psychotherapy, so I am not speaking on assumptions or speculation. I am speaking truth.
November 23rd, 2006 at 11:27 am
yes peter..and mine didn’t hit me..
and there is no way i could consider smacking/hitting either of my children…
it’s inter-generational learnt behavour…
phil(whoar.co.nz)
November 23rd, 2006 at 1:37 pm
That’s it for me. Been nice knowing you all.
November 23rd, 2006 at 1:46 pm
Dunny - I’ve enjoyed your posts. Hope it wasn’t anything anyone said; my apologies if my comment above went too far. All the best!
November 23rd, 2006 at 2:11 pm
Well, I’m still officially around as Lame Duck Dunny till Monday, so might still manage a post or two. And nothing to do with what anyone said here. The final straw was that Nicky Hager and his scurrilous book. And for the record, I repeat that I never knew about the Brethren’s leaflets until about a month before the last election.
November 23rd, 2006 at 2:19 pm
Yeah - I believe you. I think we all know just how honest and sincere politicians are. Good try!. I love your sence of humour.
November 24th, 2006 at 1:41 am
How will the Media manage to cut through “the proverbial” without a dunny brush in close proximity?
November 25th, 2006 at 12:46 pm
I`ll be responding to this post on my blog in the next day or so primarily because you dont appear to have any understanding of 101 law, let alone how a bill will be outworked when it turns into an Act and gets Royal Assent.
check http://www.big-news.blogspot.com\
November 25th, 2006 at 2:45 pm
We need nore testimonies like this one.
Go to:
http://www.nospank.net/carol2.htm