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Law Comm'n Opinion on Smacking Bill Confirms Fears

14 MARCH 2007

Law Commission Opinion on Smacking Bill Confirms Parents’ Fears

Green MP Sue Bradford has been hailing a legal opinion from Sir Geoffrey Palmer which states that under her “anti-smacking” bill, removing kids against their will to “time-out” will not be treated as “correction” and therefore not banned under the bill.

However, Peter McKenzie QC, in a detailed analysis commissioned by United Future MP Gordon Copeland, concluded that parents who remove their child against their will to a time out zone or “naughty mat” would indeed commit a criminal offence if Bradford’s bill was to become law. McKenzie argued cogently from case law that the forced removal of a child to prevent disruptive or offensive behaviour has to be seen as a corrective strategy, at least in part. The object or intention of the parent is to correct wrong and/or improper behaviour.

McKenzie referred to Sharma v Police [2003] NZLR 476, which says “Correction implies that the object of the punishment was to deter repetition of improper conduct”. Taking a person to time out can be seen as corrective discipline as it is designed to deter improper conduct, preventing bad behaviour, and therefore under our legal framework constitutes ‘correction’, and therefore would be illegal under Bradford’s bill. Palmer in commenting on McKenzie’s legal opinion did not even refer to this case.

Family First National Director Bob McCoskrie says Palmer’s legal opinion actually confirms the fears of parents regarding this bill. Palmer has confirmed that parents can’t be given a blanket reassurance that they would not be prosecuted for putting a child into time out. The best he could say was that prosecutions against parents might not be successful, and therefore parents might not be prosecuted.

“There are a lot of coulds, ifs and maybes about all of this. Parents won’t take much comfort from this advice,” says Mr McCoskrie.

“Palmer’s analysis and Bradford’s interpretation of it show just how badly worded and confusing the bill is, as confirmed by other legal opinions released by Family First NZ yesterday.”

“More than that, Palmer’s opinion highlights just how vulnerable good parents will be,” says Mr McCoskrie. “It’s time supporters of the bill acknowledged that.”


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