I have disabled comments for this thread now because it is so long the page is getting far too big. Sorry. Unless someone can point us in the direction of a comments pagination plugin for wordpress.

Hopefully frog or Russel will post a new S59 thread at a later date and the discussion can continue there.

UPDATE: a new posting is at Let the s59 debate continue.

I am also pondering on the inclusion of the word “minimal” to the amount of force, because I am somewhat uncomfortable with the word “reasonable”, and tend towards the opinion that “reasonable” might be a bit too subjective in this context.

Maybe I’ll have a more coherent opinion on this after a few more shots of espresso and a shower to wake my brain up some more hehehe.

(3) Subsection (2) prevails over subsection (1).

and note that clause 2 says

(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.

THEN consider the quoted opinion of counsel as and the Justice Committee as elicited by Sue’s own question…

http://www.greens.org.nz/searchdocs/other10661.html

specifically this bit

“Mr McKenzie concludes that under the Crimes (Substituted Section 59) Amendment Bill as proposed by Sue Bradford, carrying a child against his or her will to “time outâ€? or a “naughty matâ€? will be a criminal act that exposes parents to prosecution for assault. This is because the redrafted defence in section 59(2) provides that “nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correctionâ€?. For most parents, it is said, a corrective purpose would be the dominant or indeed the only purpose for “time outâ€?.

Comment
Committee members will recall that, in relation to option 1, the Law Commission was advised by a majority of the members that the outcome sought was a prohibition on the use of any force against children for corrective purposes. We are consequently delighted to receive Mr McKenzie’s independent confirmation that this objective is achieved by our proposed draft. ”

followed by-

“However, in this regard, there is a very important point to note. The “Solicitor-General’s Prosecution Guidelinesâ€? require prosecutors, in the exercise of their discretion, to assess the likelihood of achieving a conviction. We suggest that, in the vast majority of “time outâ€? cases, parents will be prompted by a mix of motives, which may include prohibited correctional purposes, but in all likelihood will also include other permitted purposes. It is thus questionable whether in such cases a jury could ever properly convict a parent beyond reasonable doubt, which in turn may tell against the likelihood of prosecution.”

(emphasis mine)

Key word here - PROPERLY

In the original of s59 it would easily have been regarded questionable that parents might have failed to properly be convicted for beating their child with a horsewhip, the standard here is the same. The result is likely to be the same as well. For most of us decent parents, a reasonable doubt will suffice in our defence, but we WILL be forced to mount that defence. The police will be judging motive and the court as well, and sooner or later justice will miscarry as it inevitably does.

It only needs happen once for this to be proven a bad law.

I am no fan of McKenzie nor do I reckon that the whole story will really be understood until we “suck it and see”, and we have a long line of reasonable verdicts, but all of this argument and all of this doubt and all of the money and time in court that this will generate could be avoided.

I accept that in the cases you cite a conviction is unlikely in any single instance, but timing and perception are everything in the court. The witnesses available, their attitudes and the testimony heard as filtered by the legal community render this less certain than it should be.

A well thought out post… thanks for working through what you see as the results… I see them similarly except that I see them through the filter of “likely” results (there’s no guarantee in court) and through the filter of additional court appearances to clear parents, additional legal fees, involvement in custody battles and the statistically inevitable occasional bad result. One hopes it will be VERY occasional and that the Police will be far more careful than we have been.

The standard of law I am used to is that it is better for the guilty to occasionally escape than for the innocent to be punished. That is perhaps, a difference in my background from the usage here. I regard it as valid however, as there is NO recourse from punishment meted out by the State.

respectfully
BJ

by that measure I should be able to throw my rubbish in the ocean.

You haven’t understood the basic precept of appropriate decision making : decisions should be made by the people affected by the outcome. You would be able to throw your rubbish into the ocean if the majority of the people concerned were OK with that … i.e. a majority of the people who live near the ocean.

00000000000000000000000000000000000000

Except that there is a long coastline, and the people who live along the coast won’t be able to recognise my rubbish as it has been mashed up into molecules. Or, two populations divided by power hungry politicians> one decides it is ok to have big families, regardless, (in Rwanda the number is 6/ family). Should the remainder of the populace have to support the extra 4???
jh

Any action then would be corrective i.e. as a deterant for next time.

For my boy after repeated failed attempts with time out etc, a samck was the only thing that stopped him trying to go onto the road (it worked like magic).

That would be illegal under Sues Bill. It probably saves my bopyus life though when nothing else worked.

(you’re right about the last bit- good night)

Supermarket Scenario 1c. 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 preventing the child from engaging or continuing to engage in offensive or disruptive behaviour:
Mum notices toddler is in the process of pulling a row of jars off the supermarket shelf and scattering them around the shop floor. Mum rushes over, and intercepts the hand of the toddler as it reaches for the next jar with a slap, exclaims a very forceful “NO!”, then directs the child to pick them all up again.
Conclusion: Acceptable smack.

According to my reading of the text, if the action to stop the childs offensive behaviour is done in “real time” then it is OK, however it would NOT be OK to leave the scene and administer smacking elsewhere/later.

And besides, I should think that the aim of the “loving parenting” was to “intervene in order to modify” the behaviour of the child, NOT administer “punishment”, yes?

Ay caramba! Methinks you might be a worse insomniac than myself (if that were at all possible)

“Corrective” in law means any action taken to deter future similar behaviour.

As this is not allowed under section 2 (which overrides all of section 1) it makes smacking illegal in most cases except when it is done to prevent something.

However it is cyclical, as preventing and detering are very similar. i.e. a smack might prevent my son running onto the road in the future, or it might deter him.

Again though, section 2 over rides section 1, so it is illegal to use a smack to deter my son from running onto the road.

One of the most important things with punishment is to set boundaries and teach children there are consequences, but this is ruled out under the Bradford Bill.

Prominent lawyers are saying the law as written is a dogs breakfast as it doesn’t make it clear what parents are allowed and not allowed to do.

And that sort of law has to be the very worst type, whether you agree with it’s aim or not.

It dosen’t really help when Sue Bradford says that if you smack your child in a supermarket, you could very well end up in court.

Interesting that neither of Zana’s examples follow the usual course of action, which is a child does something i.e. pulls jars from the shelf , THEN gets the punishment (which is specifically rulled out in section 2 of the Bradford Bill).

However her examples really show just how poorly written this law is. Parents are going to need a large manual of examples of which situations they will be criminals, and which they won’t.

It seems that not even Sue Bradfiord is really sure.

It’s loopy to expect the general public to come to grips with when they are commiting criminal acts, and where they aren’t.

The Borrows amendment which specifically rules our the ehad, fists, objects etc, and only allows a light smack to the hand, leg or bottom is infinitely more sensable.

Not even the top lawyers can agree on what the Bradford Bill means.

A breath of fresh air … that I, for one, always appreciate!

LOL! Ya reckon?

Hey, I’m no lawyer, but the text of the bill seems pretty straight forward and common sense to me - except for that ambiguous use of the word “correction” which might mean different things to different people.

In my mind the “acceptable” uses of force in section one are actually “corrective” ones, because they are allowing “real time” behavioural modification techniques to “correct” the behaviour of the child. So yeh, I think that word needs to go.

But hey, we’ve still got one more reading to go, so there is still time to examine the minor ambiguity in the wording of this thing.

Cheers m’dears,
Zana