| Crimes (Substituted Section 59) Amendment Act 2007 | |
|---|---|
Parliament of New Zealand |
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| Long title/ Purpose |
The purpose of this Act is to amend the principal Act 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. |
| Introduced by | Sue Bradford |
| Dates | |
| Date passed | 16 May 2007 |
| Date of Royal Assent | 21 May 2007 |
| Commencement | 21 June 2007 |
| Other legislation | |
| Related legislation | Crimes Act 1961 |
| Status: Current legislation | |
The Crimes (Substituted Section 59) Amendment Act 2007 (formerly the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill) is an amendment to the New Zealand's Crimes Act 1961 which removed the legal defence of "reasonable force" for parents prosecuted for assault on their children.
The law was introduced to the New Zealand Parliament as a private members bill by Green Party Member of Parliament Sue Bradford in 2005, after being drawn from the ballot. It drew intense debate, both in Parliament and from the public. The bill was colloquially referred to by several of its opponents and newspapers as the "anti-smacking bill".[1] The bill was passed on its third reading by an overwhelming majority on 16 May 2007, with seven Members of Parliament voting against and 113 voting for.[2] The Governor-General of New Zealand granted the bill Royal Assent on 21 May 2007, and the law came into effect on 21 June 2007.
An indicative referendum on the issues surrounding the law was held between 30 July and 21 August 2009, where a further overwhelming majority of voters opposed the bill, although the phrasing of the question used drew widespread criticism.
Contents |
Section 59 now reads:
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—2. Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
- 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.
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.
Adults assaulting children no longer have the legal defence of "reasonable force" but "force ... may ... be for the purposes of restraint ... or, by way of example, to ensure compliance", according to the police practice guide.[3]
Prior to the repeal of section 59 of the Crimes Act, there were cases of parents who had disciplined their children using a riding crop in one case, and a rubber hose in another, who were not convicted because of the legal justification of "reasonable force".[4] When the law was changed in 2007, some proponents of the change said it would stop cases of abuse from slipping through the gaps and reduce the infant death rate.[5]
When the Private Members Bill was first proposed by Sue Bradford in 2005, it was known as the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill. The Bill was later backed by the Labour party and for a time it 'faced a rocky passage through parliament with the main opposition party, National, giving its members a conscience vote on the issue'.[6] A new section, Clause 4, was added as part of a political agreement with the Leader of the Opposition, John Key, and the amendment passed by 113 votes to 8 with both major parties voting for the bill. Gordon Copeland objected so strongly to the passing of the Bill into law that he resigned from the United Future Party.[7] He also strenuously objected that Prime Minister Helen Clark ordered her caucus to vote on an issue that would normally be left to a conscience vote.
The United Nations Convention on the Rights of the Child (UNCROC) includes two specific references to protecting a child.
Article 19
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Article 28
2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.[8]
The United Nations Committee on the Rights of the Child (UNCRC) interprets the Convention, monitors nation states and reports on their compliance with the current interpretation of the Convention. The UNCRC has also been a driving force for governments to change their stance on corporal punishment.[9]
Bradford considers that smacking was illegal even before the Act was passed.[10] When an illegal activity is reported to the Police or to Child Youth and Family (CYF), they are required to investigate the reported abuse. 'A police six month review early last year showed a 200% increase in families being investigated for "smacking" and "minor acts of physical discipline" yet less than 10% were serious enough to warrant prosecution.'[11] Under clause 4, The Police have the option of not prosecuting the parents 'where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.'
Many of the groups who originally supported the change to the Act also said that a law change was not a fully adequate response to protect children from abuse. The New Zealand Anglican Bishops said 'It is essential that changes to section 59 go hand in hand with increased access to high quality public educational programmes, which encourage non-violent discipline and child rearing.'[12]
UNCRC also put pressure on the New Zealand Government for education and promotion of changing attitudes and parenting practice.[9]
In the 2008 Budget the then Labour Government said it was 'providing $446.5 million over the next four years to improve our partnership with community-based social services to help deliver essential services to support children and families, including parenting and family violence programmes, and mentoring at-risk youth.'[13] This included the "Are you OK?" anti-family-violence campaign.[14]
The law change has been described by supporters as aimed at making 'Aotearoa New Zealand […]a place where children are secure, confident, understand limits and boundaries and behave well - without physical punishment' and to 'protect children from assault'.[15] Opponents claim that the evidence that a law change can make this difference to a country is lacking and that evidence for the contrary is mounting.
The first conviction under the new law occurred on 22 November 2007.[16]
A fifth person was changed under the law in 2011.[17]
A broad selection of organisations – including child welfare groups, churches, women's groups and businesses – publicly endorsed the bill and made submissions in support of it.[18]
Gordon Copeland resigned from United Future over the Bill since he did not agree with the party leader Peter Dunne's support for it.[7] However, Copeland was not re-elected to Parliament at the New Zealand general election, 2008, although his political vehicle, The Kiwi Party, made that issue paramount in its election campaign.[19]
Most public opposition to the Bill came from conservative Christian groups, who believed that it made even "light smacking" of children illegal.[20] Multipartisan passage of the bill occurred after an additional clause was added stating that the bill did not remove police discretion on whether to prosecute in "inconsequential" cases when it was not in the public interest to do so.[21]
During debate on the Bill a poster on the CYFSWatch website threatened Bradford. Google removed the website soon after from its Blogger service.[22]
A survey carried out between May and June 2008 showed that more people supported the Act than those who did not.[23] The survey, carried out by UMR Research for the Office of the Children's Commissioner, polled 750 people, of whom 91% were aware of the law change and 72% professed to know "a lot" or "a fair amount" about the legislation.
Results of the questions were:
Two petitions for citizens initiated referendums related to the bill were launched in February 2007. The wording for the two referendums was:
In February 2008, the bill having been passed in the meantime, supporters of the referenda claimed that they had collected enough signatures.[25] If 300,000 valid signatures were collected by 1 March 2008 for each of the referendum petitions, they hoped the referenda would be held on the same date as the 2008 general election.[26]
The first petition was supported by Family First New Zealand, the ACT Party[27] and The Kiwi Party.[25] Both Family First and the Kiwi Party promote the Judaeo-Christian argument supporting smacking. There is also contention within Christianity around this argument.
The first petition was presented to the Clerk of the House of Representatives on 29 February 2008,[28] who vetted the signatures along with the Chief Electoral Officer.[28] Of 280,275 signatures required to force a referendum, only 269,500 were confirmed—a shortfall of 10,775. A number of signatures were excluded because they were illegible, had incorrect date of birth information, or appeared more than once.[29]
The petitioners were required to collect and confirm the requisite number of signatures within two months,[29] to be presented to the Speaker of the House of Representatives. This occurred on 23 June 2008, when Kiwi Party leader Larry Baldock handed over a petition which claimed to have over 390,000 signatures.[30] The Office of the Clerk of the House had two months to verify the signatures.
On 22 August 2008 the Clerk certified that there were enough signatures, and the Government had one month to name a date for a referendum. Under the Citizens Initiated Referenda Act 1993, Cabinet could delay a vote on the issue for up to a year. The referendum was held from 31 July to 21 August 2009.
The referendum was non-binding (as specified by New Zealand's Citizens Initiated Referenda Act 1993), and thus does not compel the government to follow its result. Prime Minister John Key and Leader of the Opposition Phil Goff have said the results of the referendum will not commit them to repealing the law.[31]
On 25 August 2009, the Chief Electoral Officer released the results of the referendum. According to the results, 11.98% of valid votes were Yes votes, and 87.4% of votes were No votes. Voter turnout was 56.09%, and 0.1% of votes were invalid.[32]
The second petition, organised by Larry Baldock, was handed to Parliament on 14 May 2008.[33]
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