Wednesday, May 02, 2007

The Section 59 debate

Parliament started debating Sue Bradford's Crimes (Substituted Section 59) Amendment Bill at 16:30. You can listen in to the debate on the Parliamentary audiofeed; here's what's happened so far.

  • Peter Dunne: spoke on the SOP and called it a good outcome for the democratic process.
  • Russell Fairbrother: "endorsed comments of the Honourable Peter Dunne", but pointed out that this is merely clarifying the existing situation. He also expressed some concern that the amendment could lead to internal police discussions on the decision to charge being treated as evidence.
  • Judith Collins: called the amendment "a victory for good parents". Which is more than a little two-faced, given that just a month ago she was pouring scorn on the very idea of police discretion, and willing to die in a ditch for her "right" to beat her children.
  • Heather Roy: ACT continues to oppose the bill as an interference with the right of parents to choose for themselves how to bring their children up. Argued that the amendment changes nothing, and that it will still be illegal to "physically chastise" a child. Said that it is not for the police to decide what the law is (despite the fact that police discretion is widely accepted).
  • Phil Goff: a conciliatory speech praising the "compromise" as "providing some clarity".
  • Nick Smith: called it a win for families and for common sense, before descending into sycophancy towards John Key.
  • Peter Brown: NZ First will support the amendment, but not necessarily the third reading; they think the bill will be better for the clause. OTOH they also worry that the bill will allow more violence than Chester Borrows' clause.
  • Gordon Copeland: spoke about his own amendment, on "time out".
  • Lynne Pillay: Congratulated the churches for their protest in support of the bill, and the children's advocacy groups for standing firm. She also talked about the huge number of emails she'd received in support of change.
  • Gerry Brownlee: More sycophancy, saying that the amendment reflects John Key's position. Clearly - that's why it defines an allowable level of force [/sarcasm]. Also criticised Labour for refusing to acknowledge John Key's role in crafting the compromise.
  • Sue Bradford: Thanked the House for their support of Peter Dunne's amendment, and John Key for backing it. Having both major parties behind the bill will send a tremendous message to the country. Also thanked Chester Borrows for the work he put in, and for withdrawing his amendment. Expalined that the reason she could accept this amendment was that it did not try and define a level of force which it was acceptable to use against children; instead it affirmed the existing situation of police discretion. The Select Committee tried to find a suitable amendment when considering the bill, it's just taken a little longer. However, she sees no need at all for Gordon Copeland's amendment, believing that it is already covered by the amendments made by the Select Committee.
  • Clayton Cosgrove: Spoke in support of David Benson-Pope's SOP requiring the Act to be monitored and reviewed after two years. Said that he took a lot of convincing over the bill, but that if it saves one child from the abuse meted out to James Whakaruru (sp?), then it will be worthwhile. "This bill simply means that bad parents who beat and bash their children will be held to account in a court of law". The amendment makes explicit what was always implicit in the bill, and he supports it.

After dinner. I missed a few speeches before the break, including John Key's. You can always look them up in Hansard later.

  • Gordon Copeland: Thinks the referendum petition will be successful, and if the referendum passes, commits to trying to put in place something more akin to the Borrows amendment.
  • Chester Borrows: Pleased with the response of the Police Association (who had mongered fear as badly as anyone) in praising the explicit acknowledgement of discretion. Thinks the new amendment gives some reassurance to parents, and that while he's not entirely happy with it, that's the nature of compromise. Thought the select committee process worked well despite strong views on either side (something which doesn't get mentioned enough, BTW). And praised those who made their voice heard.
  • Shane Jones: gave a powerful speech about violence in Maori society and how the bill would help solve it. Challenged Maori who do not believe their people are afflicted with a culture of violence to accompany him to NgaWha prison and see the consequences.
  • Nicky Wagner: Emphasised the personal experience of child rearing. Criticised the emotive language which has characterised the debate (but failed to mention national's role in driving that. Calling it the "anti-smacking bill" being a case in point).
  • Rodney Hide: Congratulated Sue Bradford and Helen Clark for building a strong coalition in support of the bill - but staggered that anyone has changed their vote, as the amendment makes no difference to the bill (he's entirely right on this point IMHO). Said that the entire National Party had been fooled, and were backing Sue Bradford's original position. Offered to move Chester Borrow's amendment himself (and was handed a copy by Gordon Copeland to let him do it).
  • David Cunliffe: Expects to see a hoard of pigs flying through the debating chamber, or a UFO to land and take Rodney back to where he came from. Commended National for agreeing to the amendment. Talked about his decision not to use corporal punishment on his own children. Unfortunately marred by crawling sycophancy to Helen Clark.
  • Brian Donnelly: Thinks the media has got it wrong in reporting this as Key's compromise. Stressed advantage of the bill in preventing parents from being criminalised under the existing law (given the breadth of the definition of assault). Thinks that police discretion and the de minimis principle had been neglected in the debate. They are fundamental to the judicial system and have been with us for a long time - but have been conveniently ignored by the opposition. Read from the Police Manual factors which must be taken into account in the decision to prosecute - the seriousness of the offence, the public interest, and the effect on public opinion of a decision not to prosecute. These are the rules that apply at the moment, but have been ignored. Peter Dunne's amendment is not required legally, but is required politicly. John Key is to be thanked for coming round and backing the legislation, thus ensuring that the public will come round. And commended Katherine Rich for her courage in standing by her principles. Finally, mentioned that he had also tried to bring a s59 repeal bill, but that it had not been drawn (I didn't know that - good on him).
  • Te Ururoa Flavell: Said the Maori Party in deciding its position had gone back to Maori oral history and found nothing about the abuse or beating of children. Talked about taking the bill on the road and explaining it to their constituents - mostly successfully. Compared it to laws against domestic violence and spousal rape as a necessary protection. Like others, he criticised the scaremongering and ignorance around the bill; expressed hope for an education campaign to show them what it really means. Believes the amendment adds nothing to the bill, but understands the political environemtn and will vote for it. Opposes the Borrows Hide amendment. "A hit is a hit, a slap is a hit, don't hit children".
  • Harry Duynhoven: Thanked Members for the high quality of the debate (why do Member's Bills get all the good speeches?) Admitted that he was unhappy with the bill as introduced, and criticised it heavily. Thinks that leadership is about moving the country forward, and thanked Sue Bradford for her willingness to compromise. Sympathetic to the bill's aims (he was against corporal punishment when a teacher), but concerned it was going too far. He had considered his position in Labour over this, but the amendment gives him a bill he can live with.
  • Nathan Guy: Believes in the need for smacking to be available as a tool for parents. Talked about the politics of the bill, and the way the Greens skillfully pushed Labour into backing it despite opposition from within the Labour caucus. Despite this, said he could support the bill. At the end, Darren Hughes tried to hoist him the petard of his previous statements of vehment opposition.
  • Rodney Hide (again): "Sue Bradford has done a remarkable job as a backbench MP getting the support of the government and the support of the National Party". Again argued that the amendment made no difference, and challenged National to vote for the Borrows Hide amendment to show that they had not conceded.

Voting: The Borrows Hide amendment was defeated 111 - 9 (ACT, Copeland, Turner, and the five NZ First MPs). The Copeland SOP was defeated 113 - 7 (only four NZ First MPs supported this one). The Dunne Amendment passed 117 - 3.

Clause 5, which addresses technical issues around corporal punishment in schools, was passed swiftly. SOP 102 from David Benson-Pope which would see the law monitored, was passed 116 - 4, and the bill was reported back. The third reading will be after the day before the Budget, on May 16th.

With luck, they'll have clause 4 done by dinnertime, and clause 5 done by 20:30. Which means they're also likely to consider one of the Easter trading bills tonight as well.


That's great news. Finally!

You know, this almost makes me wish I was an ACT voter, just so I could swear never to vote for them again. I wonder if Ms Roy would support a bill allowing physical chastisement of MPs who behave badly?

Posted by Moz : 5/02/2007 04:58:00 PM

You know, this almost makes me wish I was an ACT voter, just so I could swear never to vote for them again.

You should have done that after his first speech, in which like Judith Collins he declared his pride that he had smacked his kids. What an arsehole.

Posted by Idiot/Savant : 5/02/2007 05:06:00 PM

At least its pleasing to see one party in parliament that sticks to its principles (Act) and doesn't sell out in exchange for a small consession confirming what was already the case.

Posted by Anonymous : 5/02/2007 06:14:00 PM

Maybe someone could shine a bit of light for me here but there seems to be bit of a problem with defintions in the Bill.

On the one hand we have the purpose of the Bill -

“The purpose of this Bill is to stop force, and associated violence, being inflicted on children in the context of correction and discipline.”

On the other hand there are the exceptions -

“The new section 59 clarifies that reasonable force may be used for other purposes such as protecting a child from harm, providing normal daily care, and preventing the child doing harm to others.”

Is there a definition of “correction and discipline” somewhere that excludes “protecting a child from harm, providing normal daily care, and preventing the child doing harm to others”? I would have thought that any action that dealt with those situations would be exactly what one would normally call “correction and discipline”.

And force can be used for the purpose of “providing normal daily care”. Which is probably outside even what most opponents of the Bill would consider justification for smacking.

Posted by Anonymous : 5/02/2007 06:15:00 PM

Thanks for this coverage, it's really useful and much appreciated!

Posted by Span : 5/02/2007 06:20:00 PM

Neil - try my post here.


Posted by Anonymous : 5/02/2007 10:31:00 PM

Nick & Neil,

The bill deals with assault, not just assault by smacking. These exceptions are there to provide a defence in exceptional circumstances.

Technically manhandling someone from a burning building is assault, but should a complaint be made the police & courts are empowered by the law to not lay/dismiss charges because you were, y'know, saving their life at the time.

The same goes for stopping a child from shooting someone (section 59(1)b), removing a child singing Happy Birthday at a funeral (section 59(1)c), or picking up a screaming toddler and placing them in time-out (section 59(1)d).

I disagree with Nick's post on SirH's - these provisions don't muddy the waters, they clarify the meaning of how parliament defines assault against a child (i.e. not as a corrective measure).

Again, smacking isn't the only form of assault - it's just one of many.

Posted by James : 5/02/2007 11:42:00 PM

I looked up my Crimes Act 1961.I think it would repay bloggists in the light of the Key-Bradford rapprochement-to have a close examination of:
S.2 (Interpretation) ASSAULT.
'Assault' means the act of intentionally applying or attempting to apply force to the person of another,directly or indirectly or threatening by any act or gesture to apply such force to the person of another if the person making the threat has or causes the other to believe on reasonable grounds that he has present ability to affect his purpose,and to assault has a corresponding meaning.'
Then go on to read;
S188 re INTENT (max.14 years.)
S190 Injuring by unlawful act (max 3years)
S194 Assault on a child (max 2years)
(a) Assaults any child under the age of 14.
(b) being a male assaults any female
S195 Cruelty to a child (under 5)( under 16)wilfully illtreats....'
Then note:
S 20 General rule as to justification:'All rules and principles of Common Law which render....'
S 59 ( section which may be deleted) IS THE CODIFIED COMMON LAW DEFENSE which appears in the initial NZ codification of Criminal law in 1893 and later in 1908 and 1961.
The present Bill seeks to repeal this Common Law defense.It denigrates the right of a jury to determine the adequacy of the traditional Common Law defenses preserved in the NZ (and other) Common Law jurisdictions.Notably the ability of a jury to assess whether the 'force used is reasonable in the circumstances' and '... reasonableness,a question of fact'.
S 62 EXCESS OF FORCE'...criminally responsible for any excess....'
To get around the strict interpretation of the above,the consequences of which lawyers have
have pointed out ,the politicians have muddied the waters by proposing the statutory introduction of the maxim,'de minimus non curat lex'into the criminal law which must be unique.
I can imagine a policeman acting within his office of a constable (this gives him unique discretionary powers) saying,'I have reason to suspect and do suspect that you X did assault A
....' after having received a call from a disaffected child,spouse,teacher,social worker,uncle Tom Cobley....
The police despite their discretionary powers are moved by policy decisions which direct HOW this discretion is to be used-or waived.(NB the prima facie case of forgery against a well known politician !).The removal of the Common Law defense opens up a potential minefield which can only bring sensible policing into disrepute-as can be seen in the combination of the Traffic Police with the Constabulary.The Police will be used as a tool by agenda driven groups.There has been one recent example,the Ellis Affair.The amended Crimes Act will most likely not create a social change,(a justification mooted by Pita Sharples) but bring that section of the Criminal Law into contempt-as has been the case in recent prosecutions involving discharge of firearms.
In my opinion,considering the existing powers of the Crimes Act (mentioned above) this amendment is unnecessary,superfluous and potentially dangerous-a good legal triple.

Posted by Anonymous : 5/02/2007 11:45:00 PM

There is no need to post half the Crimes Act in uppercase and purple ink - we can follow links...

The Prosecution Guidelines 1992 have existed for 15 years and set out exactly the process that should be followed in deciding whether to prosecute. These include the concept that an offence should not be prosecuted where it is considered to trivial for the criminal law (not to mention that prosecution should not be proceeded with if it seems likely that a discharge without conviction would result if the case was proved).

Posted by Rich : 5/03/2007 10:26:00 AM

DPF has been unusually quiet, given that up till now he has blogged breathlessly on every trivial aspect of this issue in practically real time. He must be awaiting being told what to think by his masters before blogging.

Posted by Sanctuary : 5/03/2007 11:26:00 AM


> (but failed to mention
> national's role in driving that.
> Calling it the "anti-smacking
> bill" being a case in point).

In fact, Sue Bradford called it an anti-smacking bill, then later lied about doing so.


Yeah. It's interesting to see the die-hard National supporters try to explain this compromise away. I'm not surprised Clark prefers dealing with Key to Brash.

Posted by Anonymous : 5/03/2007 05:24:00 PM

Borrows must have felt pretty bloody stupid to not be voting for his own amendment. Not that it had any real support anyway.

Posted by Anonymous : 5/03/2007 07:12:00 PM

As the post-compromise spin continues, I've been increasingly irritated by The Big Lie about Sue Bradford and her bill. It goes something like this: "Bradford is a hypocrite and liar, she said she would rather pull her bill than have it amended."

100% false. In fact, she said exactly the opposite.

Joanne Black in The Listener, Sept 23 2006:

Bradford says that if MPs do not believe that the explanatory note already at the front of the bill is sufficient to protect parents, she would be willing to accept an amendment making it clear that parents “who remove their children from danger, or put them in a room for time out or lightly smack their children” will not necessarily be prosecuted for assault. She is prepared to accept an amendment, “as long as it’s sensible”.,1.html

And so she did.

Simon G

Posted by Anonymous : 5/05/2007 04:54:00 PM