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.