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An analysis of the updated Bradford Bill.

Posted by watchingcyfswatchnewzealand on April 1, 2007

As posted on CYFSWATCH NZ

An analysis of the updated Bradford Bill.
Saturday, 31.03.2007, 04:18pm (GMT12)

Goodbye section 59

The title to this post has a double meaning: I believe the repeal of s 59 will occur and this is, like Psycho Milt, my last post on it.  I have spent enough time on it and not enough time beating and thrashing my daughter.  I need to get my score up before s 59 is gone.

I mentioned Dev Solanki’s case in my post yesterday and LBJ crystallised my thoughts with this comment.

Well, with Bradford’s amendment to s 59 (good care and parenting, etc.) he might have a better shot at getting off. You point out that it wasn’t a s59 case (the force wasn’t corrective), perhaps it could be a s 59 case with Bradford’s law change…

 

I had an epiphany of sorts.  Does this bill, as amended, really criminalise or ban smacking?  I have to admit that I entirely forgot about the amendments and indeed my submission, which formed the basis of my arguments all along, was on Bradford’s original bill (the submission appears to have disappeared from the post now, sorry).  I believed the original bill criminalised smacking, but does the new, and amended, bill do so?  I don’t want to focus on the particular elements of the bill (soon to be section 59) but I do want to focus on the defences or arguments available should a parent be prosecuted for smacking in light of LBJ’s comment.

Tony Milne has helpfully put the amended bill on this post.  It is plagiarised below:

“59 Parental control

‘‘(1) 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

‘‘(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.

 

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

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

 

I am particulary interested in the matters mentioned in (c) and (d) which appear to permit a smack if the smack was reasonable in the circumstances, and for the purposes of this bill I think it has to be because under the bill reasonable force is still permitted and a smack is reasonable force.  

So, could a parent argue that the smack was reasonable force in the circumstances and under (c) it was for the purpose of preventing the child from engaging in disruptive behaviour?  That seems precisely what you would argue.  Game over?  Maybe.

Of course the other argument is that the [reasonable] smack was for the purpose of performing the normal daily tasks that are incidental to good care and parenting – (d).  Possibly the smack itself is a daily task that is incidental to good care and parenting?  The better interpretation of (d) I think is that the daily task is not the smack but is actually wider than that: parental discipline or correction.  So, the argument under (d) would be that the smack is reasonable and is for the purpose of performing a normal daily task (discipline or correction) that is incidental to good care and parenting.

The problem that has been created though is that this bill has now become an interpretative nightmare.  It is, and in fact always was, a legal quagmire.  

You see, the word discipline has been removed from the header to the section and has been replaced with control.  Headers can be aids to interpretation.  If discipline is not mentioned then it becomes more difficult, interpretatively, to argue it still applies under (d).  The other problem is this: subsection (2) prevails over subsection (1).  That is a problem because of section 20 of the Crimes Act which says:

All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence, whether under this Act or under any other enactment, except so far as they are altered by or are inconsistent with this Act or any other enactment.

 

This means that in 1961 (when the Crimes Act was passed) any common law justification or excuse to an offence remained in place and could be used as an exculpatory factor.  Historically, parents had a common law justification or excuse to discipline their children by way of a smack for correction.  This makes sense.  In 1961 this justification or excuse remained and is a very good reason why police would seldom bother investigating smacks.  But here’s the crunch: subsection (2) of Bradford’s bill removes this.

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

 

IMHO you may not be able to stand in front of Judge and argue that your smack applied under (c) or (d) above because the historical justification for a smack being either preventative of disruptive behaviour (c) or as part of good parenting (d) is gone.  We hear frequently that the intent of the bill is to encourage parents to use alternative forms of discipline for correction.  That is because Bradford et al want smacking banned. 

The argument that I believe would hold water is one that I have proposed before: that parents simpy argue there was no intent to assault.  An assault has two basic elements – mens rea (mental intent to assault) and actus reus (the physical act of assaulting).  It is specious to claim, as the Prime Minister has, that all smacks are assault now as is, for example, contact on a sports field.  That is wrong. They are not assaults because they there is no intent to assault in these circumstances and sportspeople consent to the ‘assault’.  Children cannot consent so the only other option is that there is no intent.

My final point in all of this is this.  I have mentioned that the historical justification for the use of force is gone.  Yet subsection (1) of the bill says that ‘[E]very parent of a child… is justified in using force if the force used is reasonable in the circumstances and is for the purpose of…’   So the justification exists then is gone in (2).

What a bloody mess this bill is.  As I say, an interpretative nightmare and legal quagmire.  If you’re really stuck in front of the Judge just say this:

Sir, smacking is not illegal.  Sue Bradford and the Prime Minister kept saying so.

 

And produce Hansard by way of evidence.

Nick 

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