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Maxim Institute – Section 59 Amendment “Smoke & Mirrors”.

Posted by watchingcyfswatchnewzealand on May 4, 2007

As posted on CYFSWATCH NZ

Maxim Institute – Section 59 Amendment “Smoke & Mirrors”.
Thursday, 03.05.2007, 07:36pm (GMT12)

Section 59: the consensus amendment

Introduction

Commentators and politicians of all persuasions have acclaimed the consensus amendment to the so-called “anti-smacking Bill”. However, closer examination reveals that it would not do what it is claimed to. The main problem is that even with this amendment, the Bill will still make it a crime for parents to use reasonable correction such as a light smack.

This Issue Snapshot analyses the amended Bill, finding that the consensus amendment does not change the Bill’s prohibition on correction, and that the way it attempts to mitigate the rigour of the prohibition creates more problems than it solves.

Background

Section 59 of the Crimes Act 1961 currently permits parents to use “force by way of correction towards [a] child, if the force used is reasonable in the circumstances”. Without this permission, the use of mild physical discipline, such as a light smack, would constitute assault. Parliament has been considering a Private Member’s Bill that would make it illegal for parents to use reasonable force for correction, leading to the Bill being dubbed the “anti-smacking Bill”. The Bill’s formal title is the Crimes (Substituted Section 59) Amendment Bill.[1]

Public opposition to the Bill has been staunch, with polls consistently showing that there was little public support for a law that treated mild physical correction as a crime. Political parties were also in deadlock on the issue, with a number of amendments and counter-amendments proposed in Parliament.

The political stalemate was resolved when the Prime Minister, Helen Clark, and the Leader of the Opposition, John Key, agreed to a consensus amendment to the Bill.

The consensus amendment

The amendment does not change the Bill’s position on correction. All uses of force for correction will continue to be prohibited, with the effect that they will be criminal offences. The amendment would add the following paragraph after the ban on correction:[2]

To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

 

Parents criminalised

Mr Key announced that the amendment “gives parents confidence that they will not be criminalised.” But the amendment is premised on a misunderstanding of what it means to criminalise something. The amended Bill would criminalise parents who use mild correction such as a light smack, because it continues to prohibit such conduct and, as a result, parents who use this type of correction will be committing a crime. They will therefore be criminalised.

An unworkable tension at the heart of the Bill

The consensus amendment represents an attempt to avoid this unpalatable result by saying that something that has been made into a criminal offence may not be prosecuted by the Police. This creates an unworkable tension at the heart of the Bill, creating a cascade of problems downstream. Before discussing these problems, it is worth noting that they could have been avoided if Parliament had applied one simple principle, usually recognised as being crucial to good legislating: only criminalise things you are prepared to have prosecuted.

The Bill does not clearly tell parents what is required of them

One of the most significant problems with the amended Bill is the way it contradicts the rule of law. This requires laws to be clear and certain, so that citizens know what is required of them, and so that they are governed by law instead of arbitrary government decisions.

However, the Bill does not clearly tell parents what is required of them. On the one hand, it criminalises a certain type of conduct, but on the other says it may not be prosecuted if certain conditions are met, and that it all comes down to Police discretion. Parents will be left unsure about how the law actually requires them to act.

The problems with Police discretion and the “public interest” test

The idea that Police should have a discretion not to enforce something that is actually a crime is also highly problematic. The wording “to be so inconsequential that there is no public interest” as a standard to guide prosecution decisions may appear to offer some reassurance, but it does not solve the problem that the Bill constructs a law that is supposed to work by being ignored by the Police.

In fact, the Bill opens the door to arbitrary law enforcement decisions by the Police, a possibility that is not entirely removed by the use of “so inconsequential” and the public interest test. The content of the public interest is uncertain; it is a slippery concept which is likely to change over time. Various people have different ideas about what is in the public interest, so while one prosecutor might look at a set of facts and decide it is not in the public interest to prosecute, another prosecutor could reach the opposite conclusion on the same set of facts. And sometimes the Police just get it wrong. The Law Commission reports that:[3]

… it appears that the police do sometimes persevere with minor cases where … no public interest is being served in pursuing the matter before the court.

 

It is also possible that certain people or groups may not be given the benefit of the Police’s discretion, if only because they are already ‘known to the Police’ or are a member of a group that the Police are frequently in contact with.

Supporters of the Bill try to assuage these fears by saying that the Police are already in the habit of exercising their discretion on matters of child discipline and they do so wisely, as evidenced by the lack of prosecutions for light smacking. The extended version of the argument is that mild correction, such as light smacking, is already a crime which the Police exercise a discretion not to prosecute. And so, we are told, the Police will continue to act in this way, keeping good parents from the courts.

The argument is on rather shaky legal ground. The Crimes Act provides that parents who use reasonable force for correction are “justified”. This term means “not guilty of an offence”.[4] In other words, Police do not currently prosecute parents who smack lightly because they have done no wrong. With the law set to change to criminalise parents, and a new standard to be applied by Police, the Police practice of the past does not provide much in the way of guidance or reassurance.

Police discretion will not apply to others

A further problem with the reliance on Police discretion is that it will not affect non-Police prosecutors or other organisations who take an interest in how parents relate to their children. It is not just the Police who can prosecute law-breakers. Any private citizen can go to court complaining that an offence has been committed.[5] The person complained about can then be committed for trial.

In addition, many of the cases involving child discipline issues occur in the Family Court, either in family disputes or in cases involving agencies such as Child, Youth and Family Services. The Police discretion, and its intended restrictions, will not be relevant in those cases, where the ban on parental correction will have to be applied.

Earlier problems with the Bill remain

Finally, it is worth remembering that the Bill draws a difficult distinction between the use of force for correction, which is prohibited, and situations where parents may use reasonable force (where they are trying to prevent a child being offensive or disruptive, committing a criminal offence or harming themselves or others, or where it is incidental to normal daily parenting).

The amendment to the Bill does not affect this distinction, so parents will still be left in the difficult position of trying to decide when their conduct crosses the line from the permitted uses of force into the prohibited region of correction.

Conclusion

Despite some of the claims made for the consensus amendment, it is apparent that it has not really changed anything. Crucially, the Bill continues to say that parents who use mild correction, such as a light smack, are acting outside the law. The amendment’s attempt to avoid the full consequences of this provision by relying on Police discretion creates more problems than it solves.

In spite of these problems, Parliament made the consensus amendment part of the Bill on the same day that it was announced. The amended Bill now only has to pass its third and final vote, which is expected to happen with overwhelming support from almost every political party just two weeks after the consensus amendment was announced.

For more information, read Maxim Institute’s previous Issue Snapshot on the original Bill, our Issue Snapshot on the amendment to the Bill proposed by the Select Committee that considered the original Bill, our written submission to the Select Committee and the supplementary material we provided to the Select Committee during our oral submission.

Endnotes

[1] The Bill’s original title was the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill. It was changed at the Bill’s second reading in Parliament.
[2] Supplementary Order Paper 107 in the name of Hon Peter Dunne MP, 1 May 2007, http://www.parliament.nz/NR/rdonlyres/07222ECD-BDB7-4EBF-88B9-ECC0AABF98C9/54561/DBHOH_SOP_1005_4901.pdf (accessed 3 May 2007).
[3] Law Commission, “Criminal Pre-Trial Processes: Justice Through Efficiency,” Report 89 (Wellington: Law Commission, 2005), paragraphs 99-101.
[4] Crimes Act 1961, section 2.
[5] Summary Proceedings Act 1957, section 13.

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One Response to “Maxim Institute – Section 59 Amendment “Smoke & Mirrors”.”

  1. It’s a bad day for child abusers.

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