Prominent Lawyers dispute Labour, Greens on bill
13 MARCH 2007
Prominent Lawyers dispute Labour and Green ‘spin’ on Smacking Bill
The NZ Law Society and two top QC’s are disputing the effectiveness of the ‘anti-smacking’ bill being pushed by Labour and the Greens.
In opinions obtained by Family First NZ, Grant Illingworth QC has labeled the bill “an unmitigated piece of nonsense” and believes that the proposed amendment being supported by Labour and the Greens will criminalise conduct that most members of the public would not believe was wrongful – the end result being that the law is brought into disrepute.
Simon Maude, Chair of the Family Law Section of the NZ Law Society said in a media release from January that the proposed bill is a prescription that actually widens rather than narrows what is permissible, and will enable a more indiscriminate use of force than had otherwise been justified under the old legislation.
Stuart Grieve QC agrees with the assessment of Family First that the amended section does not actually prohibit parents from smacking at all because parents smack to ‘prevent’ bad behaviour which may avoid the ‘anti-correction’ clause, an opinion also supported by a retired Judge who did not wish to be named.
“NZ’ers have made it quite clear that they do not want this bill to be passed,” says Bob McCoskrie, National Director of Family First, “and now the legal fraternity are also questioning its purpose and effectiveness.
Mr McCoskrie says the proposed law change will simply sow confusion into good parenting practice.
Mr Grieve echoes the sentiments of Family First and many NZ’ers when he says “the community would be better served by Parliament voting for increased resources for the Police and the courts to process more prosecutions for family violence, combined with better social services to support families where alcohol and anger cause violent outbursts impacting particularly on children.”
“Banning smacking is a failure to deal with the real causes of child abuse,” says Mr McCoskrie.
(statements in full follow)
STATEMENTS IN FULL
“The resultant Bill…. justifies the use of force against a child if it is for the purpose of, among other things, “performing the normal daily tasks that are incidental to good care and parenting”. This appears to be a prescription that widens rather than narrows what is permissible and certainly does nothing to create certainty.
The proposed amendment does nothing to assist the police or the Courts in defining what level of force, if any, is appropriate and the Section's view is that it will only increase legal uncertainty as to outcome when prosecutions are brought. Furthermore it will enable a more indiscriminate use of force than had otherwise been justified under the old legislation.”
Section – NZ Law Society
Media Release 8 January 2007 http://www.familylaw.org.nz/media/crim_amdt_bill_080107.asp
“In my view this section is a dog's breakfast because it doesn't make clear what a parent is allowed to do/not allowed to do.
If I smack a child to prevent the child from engaging in offensive behaviour I am acting lawfully (sub-section 1) unless I am using force for the purpose of correction (sub-section 2). That is one of the stupidest things I have ever seen. Almost any smacking under sub-section 1 will be "for the purpose of correction" so it is impermissible because subsection 2 overrides subsection 1. What this does is to create an impossible situation for parents. We are all deemed to know the law, but who can say what this law means and how it will be interpreted.
(The proposed Law will) criminalise conduct that most members of our community would not believe was wrongful (so long as only moderate force is used). The law then loses its legitimacy and people choose to disobey the law. The end result is that the law is brought into disrepute.
In my view it is an unmitigated piece of nonsense.”
“I agree with your analysis that the amended section does not prohibit parents from smacking at all. The emphasis, particularly in subsections (c) and (d) [which most closely relate to the usual situations in which parents might smack] is on prevention of the behaviour described. I would have thought that prevention was why parents smack anyway ie the answer to the question “Why did you smack me”would almost invariably be “To stop you doing ………”.
My view is that the time spent on changing the law, particularly in this way, is wasted. The community would be better served by Parliament voting for increased resources for the Police and the courts to process more prosecutions for family violence, combined with better social services to support families where alcohol and anger cause violent outbursts impacting particularly on children.”
Stuart Grieve QC