The Section 59 amendments
The select committee changes to the Section 59 bill seem to have made a somewhat flawed bill, even worse. It is now going to criminalise parents for smacking their children as a disciplinary measure, yet expands the number of reasons parents can apply force (well beyond smacking) in other situations.
No Right Turn has a good analysis of the extra reasons now inserted as to why you can apply reasonable force:
(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.
So you can whack your kid in the face to prevent him from beign disruptive yet you can not smack him for misbehaving. Confused? How did MPs come up with such an abortion? Well it comes down to ideology over common sense.
Let’s accept that a majority of MPs were uncomfortable with criminalising, regardless of degree or circumstances, all force a parent may use with a child. The challenge was how do you then amend the law so not to criminalise good parents.
Basically there are two approaches you can take. The first is that done by the Select Committee, and come up with an exhaustive list of reasons why reasonable force can be used. It incidentially makes enforcement of the law almost impossible as you need to prove the child was not being disruptive or offensive etc etc.
The other approach is that of Chester Borrows. Which is to radically reduce the definition of reasonable force to causing only trifling and temporary discomfort. So it doesn’t try to judge when a parent may need to use some minor force, it sets a very low ceiling on what that force is.
The bill, as amended by select committee, is almost the worst of both worlds. The best argument for repealing Section 59 alltogether is to send a very clear signal to that minority of parents who can’t distinguish between reasonable and unreasonable force, that any force is undesirable. But it no longer does that – in fact it provides more reasons why reasonable force can be used.
MPs should do two things in my opinion. Either:
(a) Repeal Section 59 entirely and live with the electoral consequences
(b) Vote for Chester’s amendment to reduce the definition of reasonable force to “trilfing and temporary discomfort” without limiting the circumstances
But do not let the Bill as it currently stands go forward. It will not even lessen the amount of force deemed reasonable for dealing with “disruptive behaviour” which almost everyone says should be done.
November 21st, 2006 at 1:01 pm
The conditions under which smacking is to be permitted would cover the vast majority of smacking as it occurs now. So one wonders why a law change was necessary. But there will be a lot of arguing – in court – about whether the force used was reasonable. Lawyers will be laughing all the way to the bank.
November 21st, 2006 at 1:11 pm
Third alternative – throw out the Ammendment
November 21st, 2006 at 1:39 pm
Sue actually intends for all smacking to be illegal. The reasonable force, in her opinion, would be physically restraining a child, picking them up, putting them in time out, etc. The intention is for smacking (force used as correction) to be illegal.
November 21st, 2006 at 1:39 pm
David,
Smacking a disruptive kid in the face would clearly not be protected by the proposed amendment – physical force cannot be used as a disciplinary measure. That much is obvious and I don’t why you’ve misconstrued this.
November 21st, 2006 at 1:44 pm
To quote:
“(2)Nothing in subsection (1) [the subsection appearing italicised in your original post]or in any common law justifies the use of force for the purpose of correction.
(3)Subsection (2) prevails over subsection (1).”
November 21st, 2006 at 1:44 pm
Taranaki – I’m far from convinced I/S analysis is correct, however what this actually means is far from clear.
Under the law as it now stands reasonable force may be used against one’s children for the purpose of correct. 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 2:26 pm
David,
you are a very reasonable person, and have made some logical and sensible suggestions regarding the repeal bill.
I however would suggest that because this government has passed contravertial legislation in the past (Supreme Court Act, Civil Union Act) it is highly unlikely that you will make any changes that change the trust of this Bill, regardless of how sensible your suggestioons are. That is a pity.
They will only consent to make minor and clarifying changes to legislation unless they fail to get the support of the House. The Dog chipping bill was a strange exception.
Most MPs minds will not be changed by now, and we have to remember that it’s the people who elected them. This is how democracy works in NZ. In addition, most people will not register enough discomfort with this bill for the MPs to take notice. We can try, but if 6000 submissions against the Civil Union Bill was written off by the PM as the “same form letter” and can therefore be ignored, I would suggest that there’s not much that can be done here.
I do agree with you however that this Bill is different from the others – when the Sterislation, contraception and Abortion Act was passed in 1977/78, that Act did not force women to have abortions aginst their will. However this Bill, as it stands, will force some parents to go against their will. I wonder whether MPs keep that point of view in mind when they vote, and in addition how effective this bill will be in reducing child abuse and reducing smacking (two different things) in NZ. The law can have a powerful effect, but anybody can think of examples where a law change would be ignored by some people.
November 21st, 2006 at 2:33 pm
Linda you said “Sue actually intends for all smacking to be illegal”
This is incorrect.
The repeal of section 59 will not make ordinary parents who smack their children criminals – the repeal of section of 59 is to ensure that parents can not get away with beating, whipping etc the shit out of their children.
As far as I am concerned trying to define reasonable force is stupid and this is essentially what an amendment will do.
Parliamentarians either have to vote for full repeal or keep the bill as it is.
November 21st, 2006 at 3:16 pm
David,
you are a very reasonable person, and have made some logical and sensible suggestions regarding the repeal bill.
I however would suggest that because this government has passed contravertial legislation in the past (Supreme Court Act, Civil Union Act) it is highly unlikely that you will make any changes that change the trust of this Bill, regardless of how sensible your suggestioons are. That is a pity.
They will only consent to make minor and clarifying changes to legislation unless they fail to get the support of the House. The Dog chipping bill was a strange exception.
Most MPs minds will not be changed by now, and we have to remember that it’s the people who elected them. This is how democracy works in NZ. In addition, most people will not register enough discomfort with this bill for the MPs to take notice. We can try, but if 6000 submissions against the Civil Union Bill was written off by the PM as the “same form letter” and can therefore be ignored, I would suggest that there’s not much that can be done here.
I do agree with you however that this Bill is different from the others – when the Sterislation, contraception and Abortion Act was passed in 1977/78, that Act did not force women to have abortions aginst their will. However this Bill, as it stands, will force some parents to go against their will. I wonder whether MPs keep that point of view in mind when they vote, and in addition how effective this bill will be in reducing child abuse and reducing smacking (two different things) in NZ. The law can have a powerful effect, but anybody can think of examples where a law change would be ignored by some people.
November 21st, 2006 at 3:17 pm
welly girl
as posted on another thread
“…most important is clause 3:
3 Purpose
The purpose of this Act is to amend the principal Act to abolish the use of reasonable force by parents as a justification for disciplining children.”
November 21st, 2006 at 3:20 pm
Matthew
After hitting POST wait till you get 3 green bars (I suspect that works only with IE) then do a refresh. You will find your post is up. Works every time for me.
November 21st, 2006 at 3:22 pm
Welly-girl: You say trying to define reasonable force is stupid, but you don’t say why.
Chester’s definition of something which causes only trifling and temporary disccomfort seems to be a bloody good definition. And it would beyond any doubt rule out “beating, whipping etc the shit out of their children.” yet not criminalise smacking.
November 21st, 2006 at 3:26 pm
Thanks David,
yes normally I do. This time I made the mistake of once I’d seen the three green bars, I then refreshed http://www.kiwiblog.co.nz, went to the comments section and saw that my comment wasn’t there.
Sometimes the comments take time to appear – which was my case I guess.
November 21st, 2006 at 4:01 pm
“The repeal of section 59 will not make ordinary parents who smack their children criminals”.
Yes, it will and we’ve been over this dozens of times. Try to keep up with the play.
November 21st, 2006 at 4:05 pm
Quoted on Stuff today: “It was confirmed yesterday that parents who smack their children will be breaking the law once the Crimes Amendment Bill is passed”.
What part of that don’t you understand?
November 21st, 2006 at 4:33 pm
anyone notice a pattern here?
NZ Labour when warned before the election about election overspending said “We’ll pay it back”. After they had bought the election they said “no we won’t”. Eventually after a huge stink they have agreed to pay it back.
Sue Bradford when it looked like submissions against the bill were going to be enormous, released a statement saying that the bill “was not intended to ban light smacking”. At that point it became nearly impossible to collect a signature on a petition against the bill. The gullible NZ public believed her.
Now she is playing her cards though, saying that it will be banned entirely, but only after she had successfully perverted the submissions system with deliberately false statements.
How many times must we be lied to before us apathetic bunch will do something about it? If she has to lie and scheme to pass a law that noone wants, how good can the law be? Personally I think the law as it stands is just fine. No need to spend these millions changing it and turning us all into criminals or victims (love the way I’m labelled as disturbed because I was smacked). I’m not disturbed except by the seriously conniving and manipulative Sue Bradford
November 21st, 2006 at 4:52 pm
Tim Barnetts legal whore bill is going well if today’s letters to editor are anything to go by e.g. “Prostitute’s actions sicken office workers .” What the hell ?
Back to the silly pc socialist nanny government no smacking bill ….what…I can’t believe that is fact Gerry ….. this is f..king disgusting mate ……
“Government workers spend at least 35,000 hours on Trade Me” . What the f..k !!!!
God please help NZ !!
November 21st, 2006 at 6:03 pm
Smacking a disruptive kid in the face would clearly not be protected by the proposed amendment – physical force cannot be used as a disciplinary measure. That much is obvious and I don’t why you’ve misconstrued this.
- this would be illegal because smacking someoneone in the face is not a disciplinary measure. So it would not be protected, not now, now with this bill.
–
“Linda you said “Sue actually intends for all smacking to be illegal”
This is incorrect.”
I love how you make a statment then talk about something else instead of justifying it.
Sue has said repeatedly that she wants smacking to be illegal – she has however said she doesn’t want parents arrested (reporting to CYPS will do just fine).
November 21st, 2006 at 6:48 pm
ScrubOne – can’t be used a corrective measure. Discipline can have a number of rationales beyond correction – for example punishment. The bill as amended only expressly prohibits reasonable correction, not necessarily reasonable punishment (which is currently prohibited).
November 21st, 2006 at 6:51 pm
Which do you believe? What someone says, or what they do?
Sure SB said before sunbmissions on the bill that she didn’t want to make light smacking illegal, and then she drafted a bill that did make it illegal. Unless you think she is a moron and got the drafting of the bill completely wrong, you have to consider that her actions do not support her words and for a reason. Her words make perfect sense in that they were very effective in dampening opposition to the bill at the select commitee submission stage.
This woman remember is a seasoned campaigner. She knows all the tricks, and she most certainly is not stupid.
But what she is doing is clear by her actions, and that is what we will suffer. Her words are hollow, what has meaning is the wording of the law that may be passed. And that law will completely ban any form of force for any form of parental correction.
Anyone who wants to hang onto her words as the bill goes through can suffer the consequences of their own foolishness. How many times must someone lie to you before you stop believing a word they say?
November 21st, 2006 at 6:52 pm
welly_girl
you imply that “beating, whipping etc the shit out of children” is legal now, it isn’t.
November 21st, 2006 at 6:52 pm
“reporting to CYPS will do just fine”.
I see. So you want to see families broken up. Why don’t you just say that?
November 21st, 2006 at 7:23 pm
” Reporting to CYFS will do fine ” -get real 70 social workers are leaving the dysfunctional bureaucractic inertia a week !!!! Kids look set to suffer even further. What a sick country .
November 21st, 2006 at 10:25 pm
Any lawyers on this blog? Sue Bradford claims that it is against the law to smack an amimal. Common sense indicates that this is just another of her lies. It not illegal to smack a horse to make it go faster either at the race track or privately. I am sure it is not illegal to smack a dog if it is disobediant. Can anyone show me a law which states that is is illegal to smack an amimal? I am taking about smacking not beating.
I think if Sue’s parents had smacked more for lying as a young child she might not tell so many lies as an adult.
November 21st, 2006 at 10:56 pm
Chuck B – I suspect Ms Bradford is arguing that because no defence of “reasonable force” exists to a charge of ill-treatment of an animal under s 29(a) of the Animal Welfare Act, then those who use what we might consider reasonable force are still guilty of ill-treatment, when charged with ill-treating an animal.
As I’m sure you’d note, this would ignore the fact that the definition of ill-treatment, in relation to animals, incorporates unreasonableness.
November 21st, 2006 at 11:57 pm
Sub Bradford shows us time and time again that she can’t see any difference between abuse and use of force.
So therefore it’s quite consistent of her to make this argument about smacking an animal.
Consistently wrong that is.
I pity her poor kids if she really can’t tell the difference between abuse and use of force. All she talks about is extreme violence. Maybe her kids should be taken away from her and she should be charged with child abuse. She’s already admitted to using force in the past, and all she ever talks about in terms of force is extreme abuse.
But of course she knows the difference. Her persistent extreme outbursts are carefully calculated.
November 22nd, 2006 at 10:50 am
And of course Rugby is extreme violence. All those nasty tackles, pushing and shoving. Lets ban it. And Netball while we at it. And crowded bars.
Within a generation or two we’ll have bred kids who call for the police when jostled on crowded public transport
November 22nd, 2006 at 11:29 am
Actually Andrew, jostling someone on public transport can constitute assault. As can pushing someone on a rubgy or netball field in an ‘off the ball’ incident. Has done for years.
The lack of prosecutions resulting from such incidents makes a mockery of this criminalisation of parents line.
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