Bradford's Intention Is Not To Outlaw Smacking

The Justice and Electoral Select Committee is currently hearing submissions from people on the subject of whether parents should legally be able to physically discipline their children. Section 59 of the Crimes Act currently allows parents to physically discipline children using reasonable force for corrective purposes under certain circumstances.

Submissions are in response to a bill from Green MP Sue Bradford that in its current form effectively bans smacking. Ms Bradford drafted the bill because she didn't want to see parents acquitted in court for smacking children with implements such as riding crops and pieces of wood even though juries deemed the force was reasonable in the circumstances. Ms Bradford doesn't discuss the circumstances but focuses on the implements used. She says she wants to remove the message given by the current law that it is legitimate in some circumstances to violently beat children. During the first reading of her bill she told Parliament that section 59 "legitimises the use of quite serious force against children". Yet assaulting anyone for any reason using "quite serious force" is currently against the law.

Although some parents fear that they may be committing a criminal offence under her bill, Ms Bradford says that the bill does not set out to create a new law which makes it a crime for parents to lightly smack their children. It doesn't need to, as her bill effectively makes all physical discipline a criminal offence by removing legal protections. The aim of the bill is not to outlaw child abuse, as Ms Bradford has claimed, it is to remove force relating to child discipline. All force and all discipline, all the time. The bill says, "the use of force on a child may constitute assault under section 194 of the Crimes Act". Result: smacking and will be a criminal offence if the bill is passed unaltered - and that's what Ms Bradford wants because she considers all smacking to be abuse.

Or does she? She has said all year that it is not her intention to ban smacking. Therefore all smacking cannot be abuse. Yet her bill effectively promotes a smacking ban. So why didn't she make her intentions clear to start with and draft a bill that did not effectively ban smacking?

Well, she did make her intention clear.

Last year she year she effectively said it was her intention to outlaw smacking, but that the New Zealand public wasn't ready for it. "I’d like to see the day when we no longer use that [light smacking] but I think we have a long way to go. We have a lot of education to do".

She has also said that we will be meeting our international obligations under the United Nations Convention on the Rights of the Child only by repealing section 59. She is wrong. The UN has never asked New Zealand to make all physical discipline a criminal offence. It has asked New Zealand to amend section 59, not repeal it, probably as it does not believe that parents should be prosecuted or convicted for light physical discipline, as it is not in the best interests of the child.

But Ms Bradford vehemently opposes amending section 59 on the best interests principle. She couldn't care less if parents are committing a criminal offence, so long as police turn a blind eye to it. Ms Bradford thinks it is in the best interests of the child to pass law so that some parents can commit criminal offences for something that should not be against the law - provided they don't get a criminal record in doing so. That's crazy. Furthermore she doesn't say how a parent can get off a charge of light smacking brought by overzealous Child, Youth and Family social workers if the legal defence of reasonable force goes and nothing replaces it.

Parents want to be law-abiding citizens and 80 percent of them want to be able to have the option of smacking their kids without breaking the law. So Ms Bradford has suggested that she amend her bill and formally clarifying that it is not now her intention to ban smacking after all. She wants to add a commentary. However she didn't say that the commentary will have insufficient legal effect as if that is the only amendment to the bill and it passes, all parents who use any physical discipline will still be breaking the law, and if they get charged and convicted, Ms Bradford's intentions mean nothing.

Some have advocated defining what is meant by "unreasonable force". Ms Bradford rejects this, as she says it sends an unhelpful public message that using violence to discipline children is acceptable. Of course, that depends on how you define violence. In much of our legislation, physical violence is equated with abuse, and does not extend to light physical discipline. But Bradford does not think smacking is abuse. Therefore she doesn't think it should be a criminal offence even though she wants to effectively outlaw it.

It's illogical to make a criminal offence of something you don't consider to be criminal.

Dave Crampton is a Wellington based freelance journalist. He blogs @ Big News - http://big-news.blogspot.com/