Law Professor on Section 59 law
Canterbury Law Professor Duncan Webb has an interesting column in The Press on the Section 59 debate. Professor Webb, incidentally is also Labour’s Christchurch Central Electorate Chair.
Webb basically says that both the Bradford bill as amended, and the Borrows amendment will be vague bad law. He argues that outright repeal is the preferred way to go saying the bill “has been turned into a largely incomprehensible equivocation”. Taking some of his comments in turn:
The amended Bradford Bill states four situations where one can use (undefined) reasonable force:
* To prevent harm to the child or another.
* To prevent the commission of a crime by the child.
* To prevent offensive or disruptive behaviour by the child.
* And performing the normal daily tasks that are incidental to good care and parenting.
Webb says:
National MP Nicky Wagner suggests that the current proposals are “a nonsense, a long string of words that says everything and nothing” (Feb 23). In this she is right.
The select committee, with the help of the Law Commission, have looked for a middle ground that does not exist.
In multiplying the situations in which force can be used against a child, they have multiplied the possibility of confusion and avoidance.
However he is equally unimpressed with the Borrows amendment. He states:
Unfortunately, the National response is simply to replace one set of nonsense with another by proposing to replace the existing law with a version which permits the use of force where its effects are “transitory and trifling”. It would also prohibit the use of implements and the use of force in a cruel, degrading or terrifying manner.
The truly frightening aspect of National’s proposals is that they have glibly permitted the use of force causing harm that is not “transitory or trifling”.
Wagner claims that this is “a common-law phrase which is limited to reddening of the skin, but does not allow any bruising or worse injury”. That is a dangerous distortion.
Harm which is not “transitory or trifling” is used to define injury in the criminal law. So where someone is charged with, for example, injuring with intent, it must be shown that the harm is not “transitory or trifling”. It must be lasting.
On the basis of the common-law authorities, the effect of the proposed amendment would be to allow parents to hit their children as long as they stopped short of injuring them. This is a retrograde step from the current justification of the use of force only “by way of correction” which is “reasonable in the circumstances”.
There are significant problems with National’s proposed amendments. For example, they would pose problems for the prosecution of a parent who violently slapped a child on the face, as the harm would be transitory. It would also be difficult to prosecute an outright punch to the body which caused no bruising – and therefore a lawyer could argue that the harm was transitory and trifling because no injury resulted.
Now I am not going to argue legal definitions with a law professor. Personally I thought the use of trifling and transitory was setting that bar about as low as one can go. Professor Webb thinks it doesn’t and cites some common law grounds for doing so. What I would welcome would be a legal expert who could come up with a wording which would not cover stuff like smacking, but would cover hitting, a face slap etc. The problem is I suspect it is a bit like trying to define spam. We all know it when we see it, but damn hard to do a definition for it which covers all situations.
One aspect which is wrong is where he says:
These failings have been exacerbated in this case by the decision of National to vote on this conscience issue along party lines, and the inevitable response of Labour to do the same. This is an issue which is ill-suited to party politics.
This is not at all the case. At the second reading Labour party voted in favour while National allowed a conscience vote and six MPs voted for, and 42 against. To blame National for Labour making it a party vote is quite misleading.
While I disagree with aspects of the column, it’s a pretty fair take on the issue, and he is certainly right that what gets passed is not going to be clear law.
March 14th, 2007 at 2:47 pm
Surely there are copyright issues involved with such long quotes.
March 14th, 2007 at 3:26 pm
If The Press thinks so, I am am sure they will let me know. I suspect they welcome the extra readers they get from my blog.
March 14th, 2007 at 3:54 pm
The following is a collection of comments about the proposed repeal of s59 from those with ‘questionable sanity & agendas’, those who ignored, those who tried and those who lied.Where is my nurofen, as my head hurts as I am dreading watching the utopian freaks on the TV News kissing each other when the appalling bill passes .
Sue Bradford, Speech (October 2006)… “Personally I have no problem with sadomasochism carried out by consenting adults using safe sex practices – what I do have a problem with is a legacy of hidden sexual violence practiced on children and young people under a mantle of so called discipline…section 59 of the Crimes Act, has been protecting the perpetrators of a vicious mix of sexual and physical abuse for generations”.
Grant Illingworth QC…“an unmitigated piece of nonsense”.
Simon Maude, Chair of the Family Law Section of the NZ Law Society…“appears to be a prescription that widens rather than narrows what is permissible and certainly does nothing to create certainty”.
Stuart Grieve QC…“I agree with your analysis that the amended section does not prohibit parents from smacking at all”.
Bob McCoskrie, Family First NZ…“banning smacking is a failure to deal with the real causes of child abuse” and “Sue Bradford should not threaten to run roughshod across this democratic process, which she initiated”.
Pacific Island leaders…“will do more harm than good to Pacific Island parents and families”.
Eroni Clarke (ex All Black)…“I oppose this bill because I want to be a parent that loving raises my children and if it means to use corrective smacking, I want to do it without the possibility of breaking the law”.
Linda Vagana (ex Silver Fern)…“it’s going to effect Pacifica families, especially parents who are doing a good job”.
Rev. Tavake Tupou (Tongan church leader)…“parents should retain the right to discipline their children to ensure they have the best possible future”.
Litea Ah Hoi (Porirua Councillor, Samoan)…“repealing s59 will not stop the small percentage of people, parents, guardians who proceed to use violent physical abuse and the killing of our children”.
Olinda Woodriffe (Lawyer, Samoan)…“to me this bill criminalize innocent parents who occasionally exercise a little slap to keep the child in line”.
Tony Fuemana (musician, Niuean)… “the proposed law change will punish parents who are doing a good job of raising their kids, but will have no effect on the actions of actual child abusers who have little regard for the law anyway”.
Young Labour (Labour Party youth wing)…in a poll on the Young Labour website 80.7% oppose Bradford’s Bill.
Peter McKenzie QC…”complaints may be made by children who have resented their means of correction or denial of privileges”.
Phil Goff (Cabinet Minister)… acknowledged that under the current family violence policy of the police, they were already obliged to investigate suspected or reported assaults.
Otago University Study 2006…Children who were smacked in a reasonable way had similar or slightly better outcomes in terms of aggression, substance abuse, adult convictions and school achievements than those who were not smacked at all.
Fergussen and Lynsky (Christchurch School of Medicine)… found no difference between no smacking and moderate physical punishment… “it is misleading to imply that occasional or mild physical punishment has long term adverse consequences”.
The Voice of New Zealand, over 12 polls between June 2005 and March 2007, 83.33% of the public (by average) rejected Bradford’s bill to repeal s59. (lowest poll 71%, NZ Herald July 2005; Highest poll 90%, NZ Herald March 2007). In a democracy, the Bill would have been dismissed long ago.
March 14th, 2007 at 3:58 pm
Well,it doesnt look good. Throw it out and start again.
Its seems pretty clear from the way this issue has polarised people that rushing bad law through will have unintended consequences.The emotion displayed also indicates that parents want some certainty.
Back to the select committee for a review I reckon.
March 14th, 2007 at 4:28 pm
Wait for the first specticle on the 6.00pm news as the first parents are hailed before the courts and the collective shudder goes throughout our beautiful country. The greens are going to regret this toxic can of worms,, and so will the Maori party.
March 14th, 2007 at 4:37 pm
I agree with the Professor, both the Bradshaw reform and the Borrows amendment are a nonsense and a lawyer’s dream. There will be expensive test cases for the foreseeable future a boon to both legal aid lawyers and professional Q Cs which will add to the current log jam in having criminal cases heard. Leave the current very well drafted law as it is and has been for almost a hundred years.
March 14th, 2007 at 4:41 pm
DPF said,
“The problem is I suspect it is a bit like trying to define spam. We all know it when we see it, but damn hard to do a definition for it which covers all situations.”
I think that’s pretty much the case with all law!
I can understand National’s ‘transitory and trifling’ amendment, and I think common sense will be used to decide what those terms mean in actual courts, just as common sense tells us what’s spam, where strict definitions fail.
There are lots of transitory and trifling forms of pain infliction that most people would think crossed the line for physical discipline. Arm twisting, hair pulling, being shaken roughly, being tied up or handcuffed. I think juries and case law will sort out what society feels about the issue as soon as any real cases come up.
March 14th, 2007 at 4:42 pm
* To prevent harm to the child or another.
* To prevent the commission of a crime by the child.
Of course, these are already covered by other sections of the Crimes act. (somewhere between S39 and S50 I think)
March 14th, 2007 at 5:00 pm
“I think juries and case law will sort out what society feels about the issue as soon as any real cases come up.”
What makes you so certain of this? Case law was what caused this whole debacle in the first place, even Helen Clarke has cited current case law’s interpretation of ‘reasonable force’ as the problem.
The question that needs to be asked is: Is changing the currently law in order to rein in the handful (literally 5-6 cases) of parents who have escaped punishment for abusing their kids really worth causing the untold heart-ache to families who will end up in the shit because of this new law?
The answer has to be no.
March 14th, 2007 at 5:05 pm
baxter You beat me to it The legal aid lawyers and lawyers in general should be licking their collective lips. The Police cannot turn a blind eye as Ms Bradford suggests they can they have to prosecute a compliant especially from one parent against another which is were the bulk of the cases will arise.
Judges have always had the ability to decide thats why they are called Judges. If a Judge cant distinguish between a tap on the leg and a wack around the head with a lump of 4×2 then they shouldnt be on the Bench.
March 14th, 2007 at 5:06 pm
“I think juries and case law will sort out what society feels about the issue as soon as any real cases come up.”
Based on what defence?
March 14th, 2007 at 5:07 pm
Definition of ‘Spam’ – unsolicited bulk email.
March 14th, 2007 at 5:08 pm
At first glance the quotes you gave made it look like he was opposed to the bill in prinicple. However it reads more like this turkey thinks its bad legislation because it doesnt go far enough in leaving some options open for parents to get away with a smack.
All of this crap is unworkable. eg If a kid was racing out onto the road and I pulled its hair or twisted its arm the police and judiciary could FO if they tried to prosecute me.
March 14th, 2007 at 5:22 pm
A slap on the face is “cruel and degrading” and would not be permitted under Borrow’s amendment and nor should it be.
March 14th, 2007 at 5:59 pm
d4j – while sometimes the tone of your posts detracts from the message they contain, the above is a powerful and cogent argument against this nonsense. Congratultions.
I’d venture to suggest that the only people in favour of this measure (aside from a handful of ideological nutbars) are those with a utopian worldview – well-meaning people who think, as someone said on an earlier post, that passage of this Bill will lead to a land of happy children gambolling through fields of milk and honey.
Those of us who, like you and I, have felt the weight of state agency interference in our lives tear apart families and endeavour to destroy reputations know that Police and CYFS can’t be trusted to exercise their discretion under existing law, let alone one which lowers the bar so far as to permit an allegation of smacking to be used to set such an investigation in motion.
The only victims in my case – as in so many other similar cases – were my own children, who had to share the trauma with me. Just as the victims of this law will be those kids whose families are torn apart by Police and social workers keen to punish a handful of people in order to advance their own agendas.
March 14th, 2007 at 6:11 pm
Ah…the NZ socialist wet dream, to micro manage lives as if everyone is part of the bottom 1%.
AKl-SYD $400.
March 14th, 2007 at 7:19 pm
I’m confused, the main reason (or original excuse) for repealing S59 was that “juries got it wrong and the guilty got off”.
Can anyone point me to an analysis of these cases (or is this a straw-man)?
Fred
March 14th, 2007 at 7:30 pm
TV3 News reported that there is quite a bit of raruraru in the Labour Caucus with as many as six MP’s very disappointed that they have been told what their conscience is. Among them were Harry Duynhoven, Dover Samuels, Dave Hereora, Damian O’Connor and Paul Swain – all of whom, interestingly, have experienced the joys and frustrations of parenting. Without their votes, Bradford’s bill would fail – but we know that won’t be allowed to happen, don’t we.
March 14th, 2007 at 7:57 pm
Maybe you can control children without corporal punishment – Helen does
March 14th, 2007 at 8:07 pm
Yeah, but does Panty Slut Boy? Ironic that he. of all people, is supporting this legislation. Pass the tennis balls and duct tape…….
March 14th, 2007 at 8:26 pm
George Hawkins was the other one who is having to vote with someone else’s conscience.
Just listening to Maurice Williamson making a contribution, and remarking on the irony of Labour “pulling the whips on an anti-smacking bill” – very good Sir!!
There’s all sorts of amendments being moved at the moment, so progress looks as though it will be slow. Apparently Taito Philip Field has moved no fewer than 50 amendments proposing 50 different commencement dates, each a month later than the one before! He’s had plenty of time to plan that stunt, and it’s a good kick in the teeth to Dear Leader, or should that be Her Conscience?
March 14th, 2007 at 8:45 pm
The lawyers are borrowing against their future earnings as we blog.
March 14th, 2007 at 8:53 pm
I would like to hear some of the personal views of the judicary on this matter. Speaking of which…Where is Chief Judge Sam Ellis these days..??? Has she died and gone to heaven? She’s a mum. What are her views?
March 14th, 2007 at 9:37 pm
Webb gives the game away when he blames the National Party for making the Labour Party have a whipped vote. Next he will be screaming “let Labour be Labour”. I do not think the learned law professor’s opinions on a politically contentious issue count for much as he is a card carrying member of the Labour Party.
March 14th, 2007 at 10:29 pm
The article you refer to is more than a week old, where have you been?
March 14th, 2007 at 10:32 pm
This Labour guy like all these labourites is full of bull. Labour passes more laws in office than any other government, he should be trying a lot harder to get stupid laws stopped.
March 15th, 2007 at 1:52 am
This whole thing is silly. The existing law of “reasonable force” always made sense – to reasonable, common sense people, that is.
Who was it that said, We have exchanged a few big rules for thousands of little rules? Fortunately the likes of Bradford are always ready to step in and save us from ourselves when things get ugly in society, just so they can get even uglier. Praise Bob.
March 15th, 2007 at 7:57 am
We will now see how tight Labour Party discipline is as the lobbying pressure occurs. These things will carry a cost and maybe the sensible sentre in the Labour Party will form a more formal faction as their only protection against Helen Clark and her thugs.
March 15th, 2007 at 1:47 pm
“This is not at all the case. At the second reading Labour party voted in favour while National allowed a conscience vote and six MPs voted for, and 42 against. To blame National for Labour making it a party vote is quite misleading.”
I can see why Labour would be pretty ticked off that most National MPs are voting against the bill. It means that to pass it they are having to force their own wavering MPs, creating ill feeling within their own caucus. Another effect is that it is Labour that will take the largest hit in public backlash (if any).
Had National been split evenly on the issue, Labour could have afforded its members the opportunity to exercise their conscience, and blame would have been split evenly over all parliament in the public’s eye.
I’m intrigued about how high a price Labour may have to pay for the short term support of the Greens. It is also interesting, given the potential ratings risk Labour are running, that this bill is obviously the price the Greens are asking. Its interesting because it is reveals a lot about the Greens. Amongst all the hooha about Global warming, the Greens have the opportunity for big concessions from Labour to do something about saving the environment and they ask for the huge environmental issue- ban smacking! What does this tell us about the priorities of the Green party?