Crimes (Substituted Section 59) Amendment Act 2007

Crimes (Substituted Section 59) Amendment Act 2007
Parliament of New Zealand
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 in 2005 and drew intense debate, both in Parliament and at large. The bill was colloquially referred to by several of its opponents as the "anti-smacking bill".^{[citation needed]} The bill was passed by an overwhelming majority in May 2007. An indicative referendum on the issues surrounding the law was held between 30 July and 21 August 2009.

Introduction

In 2005, Green Party Member of Parliament Sue Bradford's private member's bill was drawn from the ballot. The bill was to amend section 59 of the Crimes Act 1961 to remove the legal defence of "reasonable force" for parents prosecuted for assault on their children. The bill became law after it passed its third reading on 16 May 2007 with only seven MPs voting against it.^[1] The Governor-General of New Zealand granted the bill Royal Assent on 21 May 2007, and according to section two of the Act, the commencement clause, it came into force on 21 June 2007.

Legal context

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—

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 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.

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.^[2]

Social context

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".^[3] 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.^[4]

Political context

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.^{[citation needed]} 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'.^[5] 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.^[6] 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.^{[citation needed]}

Geopolitical context

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.^[7]

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.^[8]

Debate and aftermath

Bradford considers that smacking was illegal even before the Act was passed.^[9] 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.'^[10] 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.'^[11]
UNCRC also put pressure on the New Zealand Government for education and promotion of changing attitudes and parenting practice.^[8]

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.'^[12] This included the "Are you OK?" anti-family-violence campaign.^[13]

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'.^[14] 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.^{[citation needed]}

The first conviction under the new law occurred on 22 November 2007.^[15]

A fifth person was changed under the law in 2011.^[16]

Reactions

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.^[17]

Gordon Copeland resigned from United Future over the Bill since he did not agree with the party leader Peter Dunne's support for it.^[6] 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.^[18]

Public opinion

Most public opposition to the Bill came from conservative Christian groups, who believed that it made even "light smacking" of children illegal.^[19] 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.^[20]

During debate on the Bill a poster on the CYFSWatch website threatened Bradford. Google removed the website soon after from its Blogger service.^[21]

A survey carried out between May and June 2008 showed that more people supported the Act than those who did not.^[22] 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:

• 89% of respondents agreed that children are entitled to the same protection from assault as adults. 4% disagreed and 5% were neutral.
• 43% supported the law regarding physical punishment of children, 28% opposed and 26% were neutral.
• 58% agreed there are certain circumstances when parents may physically punish children. 20% disagreed with the hypothesis and 20% were neutral.
• 30% agreed that physical punishment should be part of child discipline. 37% disagreed and 32% were unsure.

Referendum proposals

Main article: New Zealand corporal punishment referendum, 2009

Two petitions for citizens initiated referendums related to the bill were launched in February 2007. The wording for the two referendums was:

"Should a smack as part of good parental correction be a criminal offence in New Zealand?"

"Should the Government give urgent priority to understanding and addressing the wider causes of family breakdown, family violence and child abuse in New Zealand?"^[23]

In February 2008, the bill having been passed in the meantime, supporters of the referenda claimed that they had collected enough signatures.^[24] 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.^[25]

The first petition was supported by Family First New Zealand, the ACT Party^[26] and The Kiwi Party.^[24] 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,^[27] who vetted the signatures along with the Chief Electoral Officer.^[27] 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.^[28]

The petitioners were required to collect and confirm the requisite number of signatures within two months,^[28] 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.^[29] 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.^[30]

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.^[31]

The second petition, organised by Larry Baldock, was handed to Parliament on 14 May 2008.^[32]

See also

• Child discipline
• New Zealand blogosphere#CYFS Watch

References

1. ^ "Anti-smacking bill becomes law". New Zealand Herald. NZPA (Auckland). 16 May 2007. http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10440080. Retrieved 12 May 2011. 
2. ^ "Police practice guide for new Section 59" (Press release). New Zealand Police. 19 June 2007. http://www.police.govt.nz/news/release/3149.html. Retrieved 12 May 2011. 
3. ^ Tunnah, Helen (10 June 2005). "Child smacking bill on election agenda". New Zealand Herald (Auckland). http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10329981. 
4. ^ "Children's issues". Green Party of New Zealand. http://www.greens.org.nz/children. Retrieved 12 May 2011. 
5. ^ "NZ anti-smacking bill likely to pass". The Age. AAP (Melbourne). 2 May 2007. http://www.theage.com.au/news/World/NZ-antismacking-bill-likely-to-pass/2007/05/02/1177788185198.html. 
6. ^ ^{a b} Tait, Maggie (16 May 2007). "United Future MP quits party over smacking bill". New Zealand Herald (Auckland). http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10440050. 
7. ^ "Convention on the Rights of the Child". UNHCR. http://www2.ohchr.org/english/law/crc.htm. 
8. ^ ^{a b} "General Comment No. 8". UN Committee on the Rights of the Child. 2 March 2007. http://www.unicef.org/protection/files/CRCGC8_EN.pdf. 
9. ^ http://www.newstalkzb.co.nz/newsdetail1.asp?storyID=114074
10. ^ "Six month review of Police activity following the enactment of the Crimes (Substituted section 59) Amendment Act 2007". New Zealand Police. 23 June 2008. http://www.police.govt.nz/resources/2008/section-59-activity-review/. 
11. ^ "Removing the loophole: Anglican bishops support repeal of Section 59" (Press release). Churches' Network for Non-violence. 1 May 2007. http://www.churchesfornon-violence.org/New%20Zealand%20Bishops%20statement.pdf. 
12. ^ "Budget 2008: Minister's Executive Summary". Minister of Finance. 14 May 2008. http://www.treasury.govt.nz/budget/2008/execsumm/b08-execsumm.pdf. 
13. ^ "The Campaign for Action on Family Violence". Ministry of Social Development. http://www.areyouok.org.nz/home.php. Retrieved 12 May 2011. 
14. ^ "The Yes Vote – NZ Referendum on Child Discipline 2009". The Yes Vote Campaign. 17 October 2010. http://yesvote.org.nz/. 
15. ^ "Judge tells smack father: 'You can't get away with that now'". New Zealand Herald (Auckland). 22 November 2007. http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10477661. 
16. ^ "Anti-smacking law | Fifth prosecution in four years...". stuff.co.nz. 2011 [last update]. http://www.stuff.co.nz/national/crime/5710830/Fifth-smacking-law-prosecution-in-four-years. Retrieved 2 October 2011. "Police have laid charges against a person for smacking a child, making them the fifth to be prosecuted since the anti-smacking law came into effect four years ago." 
17. ^ "Hands up for the Crimes (Substituted Section 59) Amendment Bill". Barnados New Zealand. March 2007. http://www.barnardos.org.nz/AboutUs/BriefingSheet_Hands%20up%20for%20crimes%20amendment%20bill_April07.pdf. Retrieved 25 August 2008. 
18. ^ "Kiwi Party website". http://www.thekiwiparty.org.nz. 
19. ^ Colwill, Jennifer (2 May 2007). "Churches take to streets over smacking bill". New Zealand Herald (Auckland). http://www.nzherald.co.nz/feature/story.cfm?c_id=1501165&objectid=10437411. Retrieved 16 May 2007. 
20. ^ Colwill, Jennifer (2 May 2007). "The smacking bill - what it says". New Zealand Herald (Auckland). http://www.nzherald.co.nz/feature/story.cfm?c_id=1501165&objectid=10437332. Retrieved 16 May 2007. 
21. ^ Collins, Simon (22 February 2007). "Google shuts down Cyfswatch website". New Zealand Herald (Auckland). http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10425243. 
22. ^ "Omnibus Survey Report One year on: Public attitudes and New Zealand's child discipline law". Office of the Children's Commissioner. 14 November 2008. http://www.occ.org.nz/__data/assets/pdf_file/0008/5669/OCC_UMR-Research_141108.pdf. Retrieved 16 November 2008. 
23. ^ Collins, Simon (23 February 2007). "Petition offers voice against Bradford bill". New Zealand Herald (Auckland). http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10425372. Retrieved 25 June 2009. 
24. ^ ^{a b} "300,000 and still counting!" (Press release). The Kiwi Party. 21 February 2008. http://www.scoop.co.nz/stories/PO0802/S00268.htm. Retrieved 21 February 2008. 
25. ^ Laugesen, Ruth (27 January 2008). "Referendum looms on smacking law". Sunday Star-Times (Auckland). http://www.stuff.co.nz/sundaystartimes/4375611a6005.html. Retrieved 21 February 2008. 
26. ^ "ACT Pushes Anti-Smacking Referendum" (Press release). ACT New Zealand. 4 February 2008. http://www.scoop.co.nz/stories/PA0802/S00024.htm. 
27. ^ ^{a b} "Anti-smacking law petition handed to Parliament". 3 News (TV3). 24 April 2008. http://www.3news.co.nz/Anti-smacking-law-petition-handed-to-Parliament/tabid/419/articleID/53678/cat/896/Default.aspx. Retrieved 25 July 2009. 
28. ^ ^{a b} Watkins, Tracey (29 April 2008). "Smacking petition falls short". The Dominion Post (Wellington). http://www.stuff.co.nz/4501944a10.html. Retrieved 29 April 2008. 
29. ^ "Smacking petition runs out of time". New Zealand Herald. NZPA (Auckland). 24 June 2008. http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10517989. Retrieved 24 June 2008. 
30. ^ "Anti-smacking petition close to forcing citizen's referendum". 3 News (TV 3). 28 January 2008. http://www.tv3.co.nz/News/Story/tabid/209/articleID/44473/cat/41/Default.aspx. Retrieved 13 March 2008. 
31. ^ "2009 referendum result". Elections New Zealand. http://www.elections.org.nz/record/2009-referendum-result.html. Retrieved 12 May 2011. 
32. ^ "New petition for smacking law referendum". Stuff. 14 May 2008. http://www.stuff.co.nz/national/politics/421784. Retrieved 25 July 2009. 

External links

• New Zealand Legislation: Crimes (Substituted Section 59) Amendment Act 2007
• Parliament of New Zealand - Crimes (Substituted Section 59) Amendment Bill
• Children's Commissioner - Submission on the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill
• The Yes Vote - NZ Referendum on Child Discipline 2009, a lobby group wishing to prevent changes to the current law