Police ‘Discretion’ Failing on Smacking Law Despite Promises
10 October 2018
Family First says that despite political promises and assurances, good parents are being criminalised for non-abusive smacking, and that police discretion is not being used appropriately. Police are also referring cases through to the court to decide, rather than applying the discretion available because of the sensitivity around ‘family violence’. The comments are made after a father was dragged through the lengthy court process for a bottom smack with no physical marks, and the judge having to apply common sense and grant an appropriate discharge without conviction.
“This is as we predicted – good parents being criminalised, despite vacuous promises from politicians that this would not happen. Lawyer Mai Chen also highlighted these concerns around police discretion in her legal opinion on the law earlier this year,” says Bob McCoskrie, National Director of Family First NZ.
Referring specifically to police discretion, Mai Chen’s legal analysis of the 2007 anti-smacking law said, “Subsection (4) is a significant aspect of s 59, yet there is little to no guidance available as to how the Police should exercise its discretion, nor information available as to how it has and does.”
The opinion also added, “An analysis of section 59 and the relevant case law shows that non-lawyers, including parents and the Police, struggle to understand and apply section 59. The cases also demonstrate that even lawyers and judges struggle to apply section 59 correctly, with examples of cases going to the District Court, the High Court and then being overturned by the Court of Appeal, as well as equivocal guilty pleas being accepted.”
Chen Palmer said that the law is confusing to parents, police and the legal profession; that statements and guarantees made by politicians were misleading; and that a comprehensive analysis of the effects of the law on families is impossible because of the difficulty in obtaining copies of judgements, and the absence of key data from the police.
The Opinion concludes that; “statements made by politicians to the effect that the amended section 59 does not criminalise ‘good parents’ for lightly smacking their children are inconsistent with the legal effect of section 59 and the application of that section in practice.”
Family First is calling on the government to pass a law which will give certainty and clarity to parents. An alternative law, which was rejected purely for political purposes in 2009, has been resubmitted and Family First will ask the government or an MP to introduce the bill. Family First NZ is also challenging NZ First to deliver on their promise of reviewing and fixing the anti-smacking law following comments by both leader Winston Peters and the Minister for Children Tracey Martin who admitted that the law hasn’t worked.
“The smacking law has been so bereft of success that supporters have had to commandeer a claim that good parents haven’t been affected and that no-one has been prosecuted by it - which has now been proved beyond reasonable doubt to be patently false.”