Monday, November 20, 2006

Watered down

The Justice and Electoral Committee has reported back [PDF] on the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill. According to their press release (a press release from a select committee! They should do this more often), they have recommended that the bill proceed,

but with some amendments to clarify that reasonable force can be used when a parent is protecting a child from harm.

However, looking at the actual report, the bill has been watered down so much that it is practically homeopathy. The key problem is that rather than repealing s59, they are replacing it with a clause setting out when parents (and those in the place of parents) may use force against children. The replacement clause would allow "reasonable force" for the purposes 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.

The first of these is both clearly reasonable and redundant - s41 of the Crimes Act allows the use of "reasonably necessary" force in order to prevent conduct amounting to suicide, or "the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one" (which would include the child themselves). Section 48 allows the use of reasonable force in self-defence or the defence of another. The second is reasonable, but at the same time allows force to be used against children where it would not be allowed against adults; there is no blanket defence to assault of "preventing a crime", and defence of property is limited to reasonable force provided you do not strike or harm the person. As for the third, "offensive" or "disruptive" behaviour? How does allowing force in these circumstances differ from allowing it "by way of correction"? This undermines the entire purpose of the bill, and will allow parents to continue to beat their children for being rude ("offensive") or for crying in the supermarket ("disruptive") with impunity. And thanks to that handy "acting in the place of a parent" clause, so will schoolteachers. So much for the ban on corporal punishment in schools.

(The fourth is a catchall clause which pretty much allows anything. Again, how is this different from allowing force "by way of correction"? Is it simply a matter of timing?)

This is a crock, and I'm surprised Bradford agreed to it. It makes things actively worse than the status quo in some respects, while offering no real improvement. If sections 59 (c) and (d) were dropped, I could be persuaded to support it - but as the bill stands at the moment, it does not deserve to pass.

Update: it seems the Children's Commissioner shares my concerns:

"We need to repeal Section 59. Full stop. We don’t need to substitute it with another section that still allows the use of reasonable force under a list of still unclear circumstances that are open to interpretation. Even though a new subsection says that force cannot be used for the purposes of correction, I believe that the parental control definitions will lead to more confusion and argument about what is reasonable and what is not. This must be debated more fully at the second reading of the Bill."

And, ideally, corrected before the bill passes.


I think "acting in the place of a parent" means a guardian, not a teacher.

Posted by Anonymous : 11/20/2006 05:13:00 PM

Unless they repeal s139a of the Education Act teachers would be banned from acts of physical punishment, I would think.

Posted by Rich : 11/20/2006 07:50:00 PM

An impressive achievement. From what I can see, it fails to fix all the things wrong with section 59 (like physical punishment of children), AND fails to fix all the things wrong with repealing section 59 (like parents getting into trouble for moving their children in the course of non-physical punishment).

Posted by Anonymous : 11/20/2006 08:52:00 PM

Rich and Anon: teachers (or rather schools) are in loco parentis while their students are there - which means they too would be allowed to use physical force to stop "offensive or disruptive behaviour". So, they'll be able to silence loudmouths in class by, say, sticking a tennis ball in their mouth.

(OK, maybe not - there would be a question of whether that would be reasonable. But they could certainly throw dusters and whack people on the back of the head - which is precisely the behaviour s139 of the Education Act was supposed to stop).

Posted by Idiot/Savant : 11/20/2006 10:54:00 PM

I/S - the deletion of words "unless that person is a guardian of the student or child" from s 139A(1) and (2) of Education Act is clearly to prohibit the use by teachers of reasonable force on students who are their children.

That exception to the prohibition on corporal punishment in school allowed teachers to use reasonable force as parents against their own children; with the deletion of these words that will no longer be legal.

I think the proposed changes are moronic, but I really can't see that which you assert is the problem - think of the proposed change like the Auditor-General's report if in any of the situations you mention one of the reasons the parent is using force is corrective (i.e. to help the child learn not to do it again) then the use of force will be illegal.

E.g. child throwing items in supermarket/tipping over displays - physically remove the child to stop the behaviour - legal; physically remove the child to stop the behaviour and help the child learn not to repeat the behaviour - illegal.

Posted by Graeme Edgeler : 11/20/2006 11:54:00 PM

Excellent - the bill is now replete with confusing weasel words & has effectively been neutered.

This means that:

- Bradford will be criticized by her supporters for failing to achieve her objective, i.e., a ban on corporal punishment.

- National, ACT, et al will be able to criticize Labour for, on the face of it, banning corporal punishment - even though the weasel worded bill does no such thing.

- Life will continue as normal for the thousands of New Zealand parents who use corporal punishment in a responsible fashion.

- Those abusing children will find it harder to hide behind Section 59 should the Police bring a prosecution.

I'm optimistic about this outcome, even though it'd be far better if the Government leave parenting to parents.

Posted by Duncan Bayne : 11/21/2006 10:43:00 AM

Regardless of whether smacking is an ideal way to discipline children (as a parent I believe it is not), law-abiding parents who give kids a smack on the bottom instead of time out don't present much of a problem to society. Attempting to legislate to change their parenting style will present very little benefit for the costs involved.
It would have made more sense for Sue Bradford's bill to focus on the kinds of parents who do things that everybody agrees go beyond the bounds of commonsense and reasonable parental discipline, such as beating kids unconscious or throwing them against a wall.

Posted by Anonymous : 11/21/2006 11:11:00 AM

Regarding (c), I do not share your concerns.

"preventing the child from engaging or continuing to engage in offensive or disruptive behaviour".

I believe what force would be reasonable in prevention here would incorporate elements of both necessity and proportionality (when viewed objectively), it would have to be the minimum amount of force necessary, and could not contain any element of punishment.

Whether the child's behaviour was offensive or disruptive would be based on the subjective view of the parent, and the reasonableness of the force then judged against that person's individual standard. Which would protect parental autonomy over how they raise their children, while at the same time imposing a societal standard of no force for correction.

To me this would apply to the child screaming in (a supermarket, a movie etc), and the child then refusing to allow the parent to remove them. The child is not criminally offending, however a parent is then allowed to use force to remove that child from the situation, and the force allowed would be to overcome force offered back against the parent by the child, (being the minimum necessary to remove the child and the minimum necessary to overcome the force offered back from the child in resisting that removal). s48 would not apply here because the parent is not acting in self protection at the point of the removal of the child.

In this example, when the child was restrained (say, in a pushchair), it would be illegal for the parent to smack the child (being a correction), as would it be illegal for the parent to smack the child to induce compliance with an instruction (being unnecessary, thus not objectively reasonable). Being an improvement from the status quo.

Personally, I support the complete repeal of s59, however I agree with Bradford that this is still a step forward given the political realities. Thus I do not share your concerns.

Posted by james cairney : 11/21/2006 11:19:00 AM

well done, good post. You're the only one to be so analytical.I was thinking along the same lines and may expand on them in Big News soon.

Posted by Swimming : 11/21/2006 12:47:00 PM

Quote: And thanks to that handy "acting in the place of a parent" clause, so will schoolteachers. So much for the ban on corporal punishment in schools.

This is as per the current law, so will not change anything.

Good article, let yourself down with that bit unfortunatly.

Posted by Anonymous : 11/21/2006 06:02:00 PM

Does anyone here have any kids? More than one? all very well to remove a kid from a supermarket if you only have one, but what if you have 3? And then what do you eat?

I disagree as well on the interpretation of c) and d). Force allowed under c) and d) will not include the ability to smack, but only to restrain. You can guarantee that is how it will be upheld.

So the bill is not watered down at all, it is still an effective removal of the rights of parents to use force for correction.

Posted by Anonymous : 11/21/2006 07:19:00 PM

Good post, and I agree that (in my non legally educated opinion) (d) is ridiculous. What the hell is a 'normal daily task'?? Methinks that in some families a smack across the face to punish bad behaviour would constitute 'normal daily' behaviour... do you think this law makes it legal?

It seems ridiculous to retain the 'reasonable force' ambiguity whilst replacing the circumstances under which it may be used with an apparently wider set of circumstances.

In my opinion 'corrective action' is part of 'normal daily parenting'...

so this new law would allow reasonable force in the case of corrective action. It seems no different to the old law


Posted by Anonymous : 11/21/2006 07:23:00 PM

Sorry, mistake, the new bill (subsections 2 and 3) points out that nothing in subsection 1 justifies force for the use of correction.

So 'correction' doesn't qualify under (d).

My mistake.

Posted by Anonymous : 11/21/2006 07:26:00 PM