Harre Speech to Baranardos Forum on Section 59
Hon Laila Harre
October 15 2001 Speech Notes
Speech to Baranardos Forum on Section 59: The Way Forward
Good afternoon, and welcome to everyone who has made the time to be here today to discuss how we can work together to find a way forward on the complicated and often misunderstood issues that surround Section 59 of the Crimes Act, and its implications for children.
Thank you Ian for your clear and directed opening. I find that it's always good to begin a discussion like this with a common focus, and the stories you used to illustrate the reasons Barnardos called this forum can leave us in little doubt of the need for change.
There are two strands to the debate over Section 59. On one hand, you have the call for repeal, which is a call for the end to the assault of children.
On the other hand, a war of words seems to have broken out over the minutiae and finer points of Section 59 and the implications of repeal. This strand of the debate comprises both proponents of change who would like a lesser degree of intervention than total repeal, and those opposed to any change whatsoever on the grounds that it is a parents' god given right to use physical force to discipline their children and teach them the difference between right and wrong. The "spare the rod" approach.
Some groups have even been running a very effective campaign of misinformation, claiming that repeal would automatically lead to parents being criminalised or penalised every time they smacked their naughty toddler on the hand or backside. This is simply not the case, and any suggestion that this is what is being proposed is mischievous.
Let's not forget that those in favour of repeal or significant amendment to Section 59 have very solid backing. It comes in the form of a United Nations Convention that effectively sets out a code of conduct for the treatment and protection of children that New Zealand has signed up to, and that the Labour-Alliance Government takes very seriously.
Article 19 of United Nations Convention on the Rights of the Child (UNCROC) states:
"That 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 parents, legal guardians or any other person who has care of the child."
The UN Committee on the Rights of the Child has already told us that Section 59 does not comply with UNCROC.
In response to the committee's comments on this shortcoming, the government has embarked on a work programme to look at how the repeal of similar legislation has worked overseas and the implications of, and options for, repeal.
The Ministries of Justice, Social Policy and Youth Affairs and the Department of Child Youth and Family Services are jointly leading this work.
Before I touch on some of the preliminary findings, I would like to clarify what the existing law actually means. As I do this, I would like you to bear in mind that we are living in a society where many people still think the physical punishment of children is acceptable.
Under Section 59 every parent of a child and every person in place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances. The reasonableness of force is a question of fact, and essentially involves the application of a community standard – that is what would be reasonable to the "ordinary New Zealander".
In short, Section 59 is available as a defence to any offence against a child that constitutes assault. It makes it okay to act against a child in a way that would result in criminal prosecution if that action were carried out against another adult.
A number of difficulties have been identified with the current operation of this section of the Crimes Act. These include a lack of clarity regarding the scope of reasonable force for parents, professionals and the general public; inconsistent decisions between and within the civil and criminal jurisdictions; and the potential for Section 59 defence to act as a barrier to prosecutions and convictions.
So what would the effect of repeal be?
If Section 59 was repealed the statutory defence of reasonable force would no longer be available to parents. Unfortunately, statistics have not been collected on the number of cases in which this defence is raised, which makes it difficult to determine what repeal could mean in practical terms.
But technically, if Section 59 were repealed the general law of assault would apply in cases in the criminal courts involving parental physical punishment of children. This does not mean that every parent that gives his or her child a smack will be prosecuted. What it does mean is that in clear-cut cases of assault parents will no longer be able to justify their actions by invoking a rather anachronistic section of the Crimes Act. And as Ian illustrated, this does happen.
One scenario that seems to be peddled out regularly by parents who want to retain the legal right to hit their children is that which involves a young child heading fist first towards the hot element/fire/gas heater, and the "loving smack" they claim is needed to head their child off at the pass.
I'm quite sure this isn't a scenario that would warrant police involvement. Even so, should our response to one form of potential injury be to legalise another? And do we really want to teach our children that hitting, smacking or any other form of violence is an okay way to control behaviour? Despite what some may think children are young, not stupid, and they are just as capable of learning through explanation and positive example as they are through fear.
As is consistent with the experience of repeal overseas, New Zealand police have advised that the repeal of Section 59 is not likely to result in a large increase in prosecutions. Basically, they have enough serious parental assaults against children to investigate as it is, and it simply wouldn't be a constructive use of Police time to investigate and charge minor assaults. Nor is that one of the aims of repeal.
It has also been suggested that any change in the law could be accompanied by a charging policy or clear set of guidelines to provide extra assurance that parents are not prosecuted for smacking their children. I also welcome Barnardos' suggestion that this could be done in conjunction with a grace period and widespread education campaign both about the implications of repeal, alternatives to smacking and positive parenting.
A number of options have been put up as alternatives to the wholesale repeal of Section 59. Most of these are aimed at providing greater clarity in the law regarding physical punishment, and restricting the use of the reasonable force defence. Many of these options can be implemented in conjunction with one another, as has been the case overseas.
While such an option may be more palatable for those not convinced of their ongoing parental rights under repeal, it would almost certainly attract criticism from the United Nations Committee on the Rights of the Child as it would mean New Zealand is still not complying with Article 19 of UNCROC.
That said, there are clear advantages and disadvantages to some of the options being put forward.
The first is specifying what factors the court should have regard to when determining whether force is reasonable. That is defining things like the age and maturity of a child, his or her state of health, the type of misbehaviour committed by the child, the circumstance of punishment and use of implements, and the extent of injuries inflicted.
Under this option, factors that the court should always take into account when deciding whether or not physical punishment is reasonable would be specified in legislation.
The key impact of this option would be to ensure that the court, that is both judges and juries, consider particular factors in each case where the issue of reasonable force arises, and the need to consider these factors would be laid out in a judges instructions to a jury. This option could therefore have benefits in improving the consistency of decisions, but it would be difficult to explain the practical impact of this option to the public as it maintains that the physical use of force against children is still acceptable.
Another popular option is specifying when the use of physical punishment is not reasonable. Again, this definition would be specified in legislation, and could cover the use of implements, force around the head or neck, force on children of certain ages, or defining force that causes pain, harm or injury.
This definition could be tailored to the New Zealand context, and it has been suggested that reasonable physical discipline would usually amount to the likes of hitting with an open hand on some part of the body other than the head or neck.
The possible advantages to this option are that it provides extra clarity to the law for parents, professionals, the judiciary and general public. It is generally consistent with New Zealand case law regarding what is and is not reasonable, and reflects so-called "community standards" regarding the use of physical punishment.
On the other hand, it may prove difficult to construct a definition of "unreasonable force" that is neither too wide nor to narrow, and may mislead some people into thinking that any acts not specified in legislation are reasonable.
The final option I would like to touch on is the banning of physical punishment of children of certain ages, as was recently adopted in Scotland.
In this case, either an upper or lower age limit could be set, and the preliminary results of a Justice Department survey show there is less support for the use of physical discipline on younger and older children than there is for children in the two to 10 age group.
Advantages of this approach are that it reflects the current case law around Section 59 that shows that physical discipline against toddlers is more likely to be considered unreasonable, as is physical discipline against teens. It would also provide extra clarity around the legality of physical punishment for children of certain ages.
However, there could be difficulties in deciding what the appropriate age limits should be, and currents concerns about the application of Section 59 would remain in respect of parental physical assaults against children where the defence was still available. Also, this approach may not reflect intellectual and physical capabilities unrelated to age, such as those of intellectually handicapped children. There is also likely to be disagreement about at what age physical punishment is acceptable.
Within each of these scenarios, including repeal, there will also be specific implications for Maori and Pacific Island people that cannot be overlooked. The over-representation of these groups in the justice system for prosecutions and convictions of child physical abuse offences cannot be specifically addressed within the scope of work being carried out on Section 59, but it must be taken into consideration.
It's also worth noting that Maori and Pacific Island children themselves raised the issue of physical punishment during consultations carried out on the Children's Agenda. They named physical discipline as one of the top ten negative aspects of being a child, and put it up there with child abuse and bullying.
So it's not just us grown ups that want the whole issue addressed, it is the children themselves. I hope the options I have addressed will be of use to you today as you work together to find a way forward, a way to better protect our children from the effects of physical violence.