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Time-out could become illegal, says QC

Posted by watchingcyfswatchnewzealand on March 4, 2007

As posted on CYFSWATCH NZ

Saturday, March 3, 2007 pm31 9:22 PM in CYFSWATCH Media

NZ Herald:

Email this storyPrint this story 5:00AM Saturday March 03, 2007

By Paula Oliver

Frantic lobbying to defeat the anti-smacking bill has taken a new turn, with a prominent Queen’s Counsel suggesting it could become an offence to simply move a child to “time-out”.

A legal opinion commissioned and paid for by United Future MP Gordon Copeland takes the view that carrying a child against its will to a “naughty mat” or another room would constitute an assault under the bill.

Mr Copeland, who wants the bill amended, said the legal opinion clearly showed that “ludicrous outcomes” were possible under Green MP Sue Bradford’s existing proposals.

“I think most people would be very surprised indeed to find that taking a child to a naughty mat or taking a child to its room for time-out will henceforth in New Zealand make parents subject to criminal charges, potentially,” Mr Copeland said.

But as Mr Copeland urged other MPs to vote to change the bill, Ms Bradford fired back by drawing attention to the history of the QC who wrote the legal opinion for Mr Copeland.

Peter McKenzie, QC, has represented several groups which argue moral stances on issues.

He has acted for the Society for the Promotion of Community Standards in film censorship cases, and for the anti-abortion group Right to Life.

Ms Bradford said the legal opinion was a weak attempt to sabotage her bill at a very late stage.

“I don’t believe that Mr McKenzie has any more credibility on this than he has on any of his other failed moral crusades,” she said.

The smacking bill is expected to come before the House again for its final vote in around two weeks.

National MP Chester Borrows is vigorously lobbying MPs to vote for a proposed amendment he will put forward which would allow parents to lightly smack their children without breaking the law.

The former policeman pointed out that police guidelines required officers to investigate every case, and police would be forced to look into claims parents had smacked their children.

At issue in the argument over time out is whether removing a child against its will for the purposes of discipline would be an assault.

Ms Bradford’s bill would repeal section 59 of the Crimes Act, which gives parents the right to use reasonable force to discipline their children.

Mr McKenzie’s opinion is that in the absence of that defence, a child is placed in the same position as an adult and it would be a criminal offence.

He has examined parts of the bill which allow for a defence in certain circumstances, such as preventing a child from engaging or continuing to engage in disruptive behaviour.

However, Mr McKenzie does not think the time-out scenario would necessarily fall into those circumstances, and questions the wisdom of relying on police to use their discretion to avoid frivolous prosecutions.

He also raised the possibility of animosity between separated parents leading to vindictive complaints, or foster children laying their own complaints because they resented what happened to them.

Ms Bradford said the legal opinion was “willfully misinterpreting” her bill and went against the purpose of amendments already made by a select committee.

If there was a genuine problem, she said, there could be further amendments to make the bill clearer – but she did not accept any were needed.

Meanwhile, Labour chief whip Tim Barnett has denied a claim by Mr Copeland that some Labour MPs are unhappy with the party’s position.

Mr Copeland claimed he had been approached by a small number of Labour MPs who wanted to vote to change the smacking bill, but were hamstrung because their party was voting as a block instead of individually on the conscience issue.

Mr Barnett said Labour’s caucus had held lengthy talks about the bill and he had the impression that people were happy with the stance. He did not expect any of the party’s MPs to break loose and vote individually.

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