Dishonesty and U-Turns in Anti-Smacking Campaign
20 March 2007
Dishonesty and U-Turns in Anti-Smacking Campaign
Green Party MP Sue Bradford appears willing to misrepresent the law in a desperate bid to get her private member¡¯s bill outlawing smacking, into law. On the recent TV1 programme Agenda, hosted by Lisa Owen, Sue Bradford stated:
"It's actually illegal now to smack your child".
She made this erroneous statement in an attempt to refute the claims made by critics of her bill, that if it is enacted into law, it will criminalise good parents who smack their kids using "reasonable force" for the purpose of correction. Bradford is wrong. It is NOT illegal now for a parent to smack their children if the action does not contravene the clear guidelines and purpose ("correction") set out in s. 59 of the Crimes Act (1961) for the use of "reasonable force" (in "domestic discipline"). S. 59 provides a clear justification for the use of "reasonable force", in the same way the other sections of the Act provide justification for the use of "reasonable force" (e.g. in self-defence s. 48 and s. 60 Force used by Ship Captains).
The concept of an action being "justified" (or "justification") is clearly defined in s. 2 of the Act. A person is not guilty of an offence and not liable to any civil proceeding, for using "reasonable force" in circumstances specified under relevant sections of the Act. For example, when the law is properly applied, a parent cannot be convicted under s. 194 of the Crimes Act for "assault" against their child if the force used was "reasonable" in the circumstances and used for purposes set out in s. 59.
In the Family District Court in 2003, Judge Inglis QC put the matter simply:
"As a matter of law, the effect of s. 59 of the Crimes Act 1961 was that a parent¡¯s action, or that of a person in the place of a parent, in smacking a child for the purpose of correction was entirely lawful if the force used was reasonable in the circumstances. Reasonable force used against a child for that purpose could not in law be categorised as physical abuse of a child."
Prime Minister, Helen Clark, has also deliberately repeated Bradford¡¯s misrepresentation of the law. She has called the s. 59 defence "ridiculous".
In setting out her support for Sue Bradford¡¯s bill that repeals s. 59 of the Crimes Act (1961), prior to it going to the select committee, she told Paul Holmes on NewstalkZB on Monday June 13th 2005:
"On the other hand, to have an actual defence in the law [s. 59] where someone can go and argue they used reasonable force, is also ridiculous."
Most New Zealanders disagree with her. For over two years nation-wide polls have consistently shown that about 80% of New Zealanders want the defence for use of reasonable force contained in s. 59 retained and not repealed, the defence that Clark describes as "ridiculous".
If Bradford¡¯s bill with the amendments that have been added by the select committee, becomes law, ANY force used with one¡¯s child for the purpose of correction will be unlawful and will open up a parent or the person in the place of a parent, to being charged for committing a criminal offence, and possibly lead to a prosecution. Use of force for correction does include light smacking. One effect of Bradford¡¯s bill is clearly to ban light smacking, which both Clark and Bradford deceitfully deny. Clark has now gone on the offensive saying that she does not want smacking banned even though she opposes Chester Borrows amendment that seeks to safeguard parents from prosecution for light smacking for corrective purposes. It has now been revealed that in a live interview on Radio Rhema, before the election, Clark stated that she opposed any ban on smacking and yet Bradford has stated that her bill, which Clark supports, will ban all smacking for the purpose of corrective discipline.
Clark and Bradford claim that if the bill as currently drafted becomes law, police will not, or rarely ever pursue any formal complaints made against parents for lightly smacking their children, nor will the police lay charges for such smackings. This is not correct. The police authorities have already confirmed that if Bradford¡¯s bill becomes law, they will have to deal with ALL such complaints as criminal offences. They will be treated as domestic violence and police are bound to lay charges in cases where victims who make dishonest yet ¡®convincing¡¯ claims in order to ¡®dob in parents¡¯ or savage a partner in a custody dispute, for example, will need to have their allegations tested in court.
Back in 2005 the NZ Herald (14/06/05) reported,
"She [Clark] stressed [to Holmes] that the Government would not legislate to ban smacking, saying it would be a ¡®very silly thing to do¡¯."
In an interview with Bob McCroskie on Radio Rhema in 2005 Clark expressed strong opposition to any ban on smacking:
"...a lot of people are uncomfortable with the beating, ah, but they don't want to see, ah, you know, stressed and harassed parents, ah, you know, called in by the police because they, they smacked a child, so I think there's a debate to go on..."
McCoskrie: "...right ... so, you don't want to see smacking banned..."
Clark: "Absolutely not! I think you're trying to defy human nature."
Clearly she has made a complete U-turn in recent days by using her party whips (neither of whom have ever had children or even been married as National MP Maurice Williamson highlighted in the House), to force all Labour Party MPs to support Bradford¡¯s bill that Bradford herself has conceded, bans smacking.
When accused by the National Party of doing a U-turn Clark denied it by claiming that she has always opposed the banning of smacking and that Bradford¡¯s bill has nothing to do with banning smacking, but only removes the statutory defence against assault that applies to reasonable force used in correction.
The New Zealand public will not be fooled by such deceit and dishonesty.
To illustrate Bradford and Clark¡¯s error of logic consider s. 60 of the Crimes Act (1961) that provides a statutory defence for the use of reasonable force by a ship¡¯s captain.
"Discipline on ship or aircraft. The master or officer in command of a ship ¡¦ or the pilot in command of an aircraft ¡¦ is justified in using and ordering the use of force for the purpose of maintaining good order and discipline .. if he believes on reasonable grounds that the use of force is necessary, and if the force used is reasonable in the circumstances."
If the statutory defence was removed by a repeal of s. 60, the use of reasonable force by ship¡¯s masters and pilots in the circumstances outlined, would be made unlawful and effectively banned. The use of "reasonable force" against a passenger(s) by a captain or an officer designated by the captain, constitutes an assault under the law, if the force used is NOT reasonable AND is not used for the reasons given in s.60. Once s. 60 is repealed the captain has no defence that takes account of his special role and responsibility to maintain order. He is limited to using verbal persuasion, non-threatening hand gestures etc. to ¡®force¡¯ people to maintain good order. If he uses any force he is committing an unlawful act.
Helen Clark and Sue Bradford are hell-bent on stripping parents of the only defence they have in law against a spurious charge of ¡®assault¡¯ that may be brought against them for using "reasonable force" in correction. They most definitely seek to ban smacking by legislative means, despite their claims to the contrary, and refuse to concede that lightly smacking a child for the purpose of correction will be banned if Bradford¡¯s bill becomes law.
Clark blames the media for the credibility gap created by her U-turn. Meanwhile deluded Ms Bradford is calling for millions of taxpayer dollars to be spent explaining her bill to the public for the purpose of proving, she hopes, that her bill does not ban smacking! She has already wasted millions of taxpayers dollars promoting her "ridiculous" and "silly" (words used by Clark to rubbish s. 59) bill that all sides of the debate including Bradford herself, concede will make no impact whatsoever in reducing child abuse figures in New Zealand.