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Topic: anti smacking bill (Read 96 times)

indigo
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anti smacking bill
« Thread Started on May 28, 2007, 4:27am »

The smacking bill - what it says
10:50AM Wednesday May 02, 2007

THE CURRENT LAW

What Section 59 of the Crimes Act says about Domestic Discipline:
Every parent of a child and every person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.

THE PROPOSED LAW - THEN

What Sue Bradford's bill said she when she introduced it in July 2005
Section 59 of the principal Act is repealed.
The stated purpose of the bill: "To abolish the use of reasonable force by parents as justification for disciplining children."

THE PROPOSED LAW - FROM SELECT COMMITTEE

What Sue Bradford's bill says now after 18 months in a select committee
Section 59 is repealed and substituted with the following section on parental control:
Every parent of a child and every person in the place of a parent of the child is justified is 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
performing the normal daily tasks that are incidental to good care and parenting.

It then says
Nothing [in the above] or in any rule of common law justifies the use of force for the purpose of correction.

The stated purpose of the amended bill changed: "To make better provision for children to live in a safe and secure environment free from violence by abolishing the use of parental force for the purpose of correction."

JOHN KEY'S FAILED PROPOSAL

The National leader last week attempted but failed to find support from Sue Bradford for a proposal between Borrows and Bradford:
It would have adopted the Bradford purpose of the bill ... "abolishing the use of parental force for the purpose of correction."

He proposed a new Section 59: "Every parent of a child and every person in the place of a parent of a child is justified in lightly smacking the child in the course of their parenting duties if the smacking used was minor and inconsequential."

FINALLY AGREEMENT

Prime Minister Helen Clark uses the language of the Key proposal to give guidance to the police to ignore inconsequential breaches of the new law, with the additional wording:
To avoid doubt it is affirmed that 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.

So we end up with the following repealed version .
59 Parental control
“(1) Every parent of a child and every person in the place of a parent of a child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of-
“(a) Preventing or minimizing 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 behavior; or
“(d) Performing the normal daily task that are incidental to good care and parenting
“(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
“(3) Subsection (2) prevails over subsection (1)
“(4) 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.”

Sorry to repeat some parts of these sections , but to keep things in context gives a clear overview of the changes ..

Correcting is the key word here .. Any form of force to correct behaviour or punish is a no no , But argue if you like that smacking or use of reasonable force to deter misdeeds or prevent harm being done to a child or preventing any child to avoid endangering others would be fine , within the stated section alterations , simply because their is no defining rule of law or qualifying any point of law as to what force is or what abuse might be ..

This whole bill and law is a legal nightmare and is open ended with interpretation suspect .. In short it is an ' Ass "
A half decent Lawyer would rip it to shreads in half an hour ..

Look at some of the ramifications ..

Although the lightest touch of a child will in future, with certain narrow exceptions, be an assault, an amendment acceptable to most parliamentary parties will remind the police that they have a discretion whether or not to prosecute. The police will presumably take the hint and decide not to prosecute in innumerable minor cases.

This is quite different from the situation at present. Now, as long as discipline is reasonable, a parent commits no crime at all in touching a child. In future, every touch will be an assault. The police are advised to exercise discretion in enforcement, but whenever they decide to charge a parent, there will be absolutely no defence. Conviction is certain.

It is highly unusual for Parliament to issue a formal legal reminder that its own law should be administered with enormous discretion, and the smacking debate reveals some rather surprising attitudes to the Rule of Law.

In theory, anyway, we have long esteemed the Rule of Law. Professor Albert Venn Dicey, a 19th-century constitutional writer, gave the idea its capital letters, but the idea is an ancient one. It means, most fundamentally, that we are ruled by defined laws rather than by the whims of fickle human beings. Magna Carta expressed it. King John of England could not do what he liked, but was under the law. It was the fundamental principle in contention in the great quarrels of the 17th century, when one king lost his head and, in another revolution 40 years later, his younger son lost his throne.

Discretion is the enemy of law. Dicey said that the Rule of Law means, in the first place, an absence of arbitrary or discretionary power. We should be punished for clear breaches of defined laws, and nothing else. The powers of officials to interfere in our lives must be carefully limited.

Of course, a little common sense and humanity are always necessary. An implacable prosecution of every tiny infringement would drive us crazy and bring the law into disrepute.

It is quite reasonable that the Inland Revenue, for example, have a discretion to forgive tiny amounts owing, rather than pursue them at great expense. De minimis non curat lex runs the old legal maxim – the law does not concern itself with trifles. A little discretion inevitably exists. Parliament does not need to spell it out.

But the Rule of Law means that law should contain as little discretion as possible. Wherever discretion exists, possibilities of abuse arise. Recent examples spring to mind where officials have defended unsatisfactory laws on the ground that they will be administered with discretion; in other words, that whether you will be prosecuted or not depends not on the law itself but on the decision of an official. It would be infinitely better to have properly written laws in the first place that do not require such discretion to be exercised.

Where discretion exists, it should at least be reviewable. Decisions by juries about whether parental discipline was reasonable were made with full publicity. No such review is possible of private decisions made in the minds of thousands of policemen all over New Zealand. Yet their discretion will have immense effects on the lives of citizens.

Once the police decide to prosecute a parent, conviction will be certain, for the lightest touch will technically be an assault. Much smacking will still occur, but policemen will be deciding privately which smackers become criminals and which will not. The courts will merely set the seal of conviction on those whom the police have decided warrant the law's intervention.

(Even if the police decide not to prosecute, private prosecutions by a disgruntled child or child advocate would still be possible.)

Needless to say, the exercise of discretion will vary. With the best will and the best guidelines in the world, standards will differ. Police in small communities where they know and are known by everyone are likelier to be easy-going. In the anonymity of the big city, the police will be tougher. Parents with dubious backgrounds, and probably the poor, will not receive the indulgence allowed to the respectable. The Greens may soon come to see their own legislation as an instrument of class oppression.

I would not for a second accuse our police of corruption, yet recent events remind us that they are only human. Given the right conditions, corruption can flourish anywhere. New Zealand has no inherent immunity. Immense discretion is an invitation to abuse.

Instead of the Rule of Law, we have an addiction to law. We probably have too many laws and law-enforcers of various sorts. This law will do more harm than good, intruding into private life, consuming the time of an already overworked police force, criminalising decent parents and doing nothing to stop genuine abuse. Wait and see.

end

« Last Edit: May 28, 2007, 5:27am by indigo »

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