Hansard and Journals

Hansard (debates)

Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill — First Reading


Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill

First Reading

SUE BRADFORD (Green) : I move, That the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill be now read a first time. At the appropriate time I intend to move that this bill be considered by the Justice and Electoral Committee.

The bill that I am presenting to the House tonight is a chance for Aotearoa New Zealand to take a step into the future and rid ourselves of an archaic law that legitimises the use of quite serious force against our children. At the moment, judges and juries have it within their power to find parents not guilty of assault when, for example, they beat their children with things like belts, canes, hosepipes, jug cords, pieces of wood, and horse crops. My bill simply seeks to repeal section 59 of the Crimes Act—nothing more and nothing less.

In law, section 59 allows a defence of reasonable force when a parent is charged with assaulting his or her child, even when that assault is carried out with objects like these. In practice, section 59 conveys the message to all New Zealanders that the State thinks it is legitimate and OK to use so-called reasonable force against those who, at least until they grow up, are smaller, weaker, and less mature than we are. What I am not doing is proposing a new law that might, for example, make it a crime to lightly smack a child or to physically restrain a child when such restraint is manifestly necessary, such as when a toddler is closing in on a power point with a fork in hand. I am not seeking in any way to criminalise ordinary parents. I just want to remove a legal defence that is used when some people seriously hit or beat their children with objects like those mentioned.

It is a nonsense to say that, as so many of my political opponents are doing at the moment, should repeal of section 59 happen, parents will suddenly be subject to arrest, prosecution, and conviction if they lightly smack their child. There is no way the Department of Child, Youth and Family Services will abruptly abandon its huge current caseload to remove children from parents who smack them, as United Future ridiculously alleges; nor will police, all at once, start arresting parents who put their child in a room for a bit of time out. It is patently ridiculous to think that all of a sudden the removal of the defence of reasonable force will lead to police all over the country arresting people for such actions. Goodness knows, they have enough other work to do. The aim of this repeal is not to subject parents to prosecution for trivial assault. In other countries where laws like this have been changed, there has not been a marked increase in such arrests. I certainly would not expect it to happen here, where the climate of public opinion is so manifestly not ready for a ban on smacking.

One of the best ways of dealing with the fear so many people have about this may be to get the police, in association with bodies like the Children’s Commissioner and the Families Commission, to develop and make public guidelines on prosecutions to cover situations where children are assaulted. Full consideration of this option could be a part of the select committee process.

This bill is not about imposing penalties on parents who currently use light physical discipline. It is about giving children and young people the same legal protection from physical assault that adults have. I do not understand at all why it is illegal in New Zealand to beat my spouse, another adult, a policeman, or even an animal harshly with a horse crop or a piece of wood, but it can be legal to do the same thing to my child. It seems to me that section 59 of the Crimes Act is a relic of English 19th century law and thinking, which said that children were simply the property of their parents and were subject to their total control and to harsh physical discipline. At that time the same applied to wives, servants, and horses. Strangely, it is only children to whom this quaint but dangerous law still applies.

I believe that babies and children deserve our careful love and respect from the time they are born. I am a mother of five children myself and brought up my first children—twins—on the domestic purposes benefit for their first few years. I know full well how hard being a parent can be. My kids were no angels and one of them had particular problems, as, alas, so many of our children do. However, to the best of my knowledge I have never used hitting or smacking on my children. I am not putting myself forward as some kind of saint; I am certainly not that. It is simply that I never wanted to strike them in any way, and I never found it necessary. I just feel that as both an MP and a mother I have a responsibility to do everything I can to stop State legitimisation of the use of serious force against our children. While this is a member’s bill, about which I am particularly passionate, I would just like to note for the record that it has the full backing of the Green Party. Repealing section 59 is a key plank of our children’s policy and is also part of our commitment to the kaupapa of non-violence, which is one of the Green Party’s four core principles.

I stand in the House tonight to call on members from all other parties to consider supporting the repeal of section 59, or at least to vote to allow my bill to go to select committee so that all the myriad issues involved can be fully debated through public submission processes and through Parliament’s political consideration. I am delighted that both the Labour and Progressive parties have publicly committed to supporting this bill through its first reading and for it to go to a select committee. I am also aware that other members here would like to support the bill and I hope that some of them will feel able to do so, even though their vote may differ from their party’s vote. I call on those members to do the right thing and take this opportunity to cast their conscience vote with all of us who believe that repeal is one step that must be taken if we are serious about lowering the levels of violence against children.

I have been speaking on and debating this issue in many communities over the last 2 months, and I know full well the depth of feeling there is on all sides of it. The issue is highly controversial. It is one that cuts deep into our national psyche, and it is a debate that needs to happen. The fact that my bill has been drawn on the eve of a general election makes it even clearer that this is a key issue for many.

Numerous individuals and organisations support full repeal of section 59 of the Crimes Act, and I would like to acknowledge their presence here in the House tonight. For some of them this bill is a further step in a life-long commitment to reducing levels of violence against children, and I would particularly like to pay my respects to Beth Wood from EPOCH New Zealand, who has worked so tirelessly on this issue for so many years. There are many others, too. Some of the people and organisations that support repeal of section 59 include, to name some of them: Plunket, Barnardos, Save the Children, Parentline, Parents Centre New Zealand, Unicef New Zealand, the Families Commissioner, the Children’s Commissioner, the Auckland University of Technology Institute of Public Policy, the Law Society, the New Zealand Paediatric Society, the Association of Psychotherapists, Wesley Community Action, the Sisters of St Joseph of Nazareth, the New Zealand Association of Counsellors, Pax Christi, the Quakers, and all the groups that make up the Every Child Counts campaign.

Our country has an all-pervasive culture of violence against children that leads to us having one of the highest abuse and child mortality rates in the developed world. People coming to this country for the first time, even from places like Israel, are shocked by the culture of violence we have here in the household and in the family. It is high time we lived up to our commitments as a signatory to the United Nations Convention on the Rights of the Child. We are currently in breach of the convention, despite paying lip service to it, because we allow State-sanctioned force here. I believe that Government has a responsibility to lead the way on this.

I welcome the national debate that my bill has opened up about how, as a society, we regard and treat our children, and I hope that during the process of submissions on the bill we open the way for the voices of children and young people to be heard as well. Children do not usually make submissions to select committees. On section 59, I think it is critical that we adults do allow our ears to open—and our minds, as well—to hear what young people have to say about this issue that affects them so deeply. If ever there was a time that Parliament should begin to seriously include the views of children in our processes, it is now, with this bill. All the research I have ever seen shows that children who are beaten and assaulted have much poorer outcomes as adults and are much more likely to perpetuate cycles of mental illness, criminality, violence, and deprivation.

For the sake of all our futures, I call on all MPs here tonight to think seriously about allowing this bill to go to a select committee, and to consider the possibility that full repeal of section 59 would actually benefit all parents and children in this country rather than create some of the totally absurd scenarios currently being put forward in some quarters.

JUDITH COLLINS (National—Clevedon) : I raise a point of order, Madam Speaker. Are we going to have clapping, calling, or anything else, coming from the public gallery?

Hon Chris Carter: How outrageous!

Madam DEPUTY SPEAKER: The Minister will stand, withdraw, and apologise. The member was taking a point of order, and I was going to rule on it. The member knows that there should be silence during points of order. This is a final warning.

Hon Chris Carter: I do apologise, although I do think the member was being very ungracious.

Madam DEPUTY SPEAKER: The member will now stand, withdraw, and apologise with no other comment. He knows better than that.

Hon Chris Carter: I apologise.

JUDITH COLLINS: I think the people in the public gallery probably are not aware of the rules of the House—so it is just to be fair to them.

Madam DEPUTY SPEAKER: Yes. There will certainly be no contribution from the gallery to the procedures of the House.

DARREN HUGHES (Junior Whip—Labour) : I raise a point of order, Madam Speaker. Just as a further clarification, often during a treaty settlement bill the gallery will contribute by way of either a waiata or applause, as we have just heard. The National Party never objects to that. Can I just take it that this new one standard of citizenship will apply to the largely Pākehā crowd in the audience tonight, as well?

STEPHEN FRANKS (ACT) : It may be that many of us have assumed that consent had been obtained. I know that when I first heard those kinds of displays and knew that they were against the Standing Orders, we were told that approval had been given by the Speaker. If approval has not been given, then perhaps it could be sought, because it is very difficult for the Speaker to enforce order of that kind. I seek the leave of the House to overlook that gallery rule, although I do it reluctantly and with a great sense of objection that Mr Benson-Pope should try to cover his tracks by pretending to have a great interest in this bill.

Hon BRIAN DONNELLY (NZ First) : The position of the House in granting leave for a waiata and an acclamation at the end of a passage of a piece of legislation has been accepted practice, and I believe that it would certainly get the agreement of New Zealand First at the end of the debate here tonight. But to allow it to take place progressively throughout the debate would, I think, be totally wrong and in defiance of the Standing Orders. It would not get the support of New Zealand First as an ongoing thing, but certainly as a wind-up end to the debate we would support it.

Madam DEPUTY SPEAKER: I thank members for their contributions. Stephen Franks is absolutely right—that permission is sought—as is the Hon Brian Donnelly on the point he made. Is there any objection—

Hon BRIAN DONNELLY (NZ First) : Can I just clarify that the leave asked for by Stephen Franks was an open, blanket one, whereas I am asking whether Mr Franks accepts that it is just at the end.

STEPHEN FRANKS (ACT) : That would be more decorous, and I therefore amend my request for leave along the lines suggested by Mr Donnelly.

Madam DEPUTY SPEAKER: Leave is sought for that purpose. It is actually at the discretion of the Speaker, too. But, certainly, if members agree to that, that is a quite proper way to do it. Is there any objection? There is not.

Hon MARIAN HOBBS (Minister for the Environment) : To all the viewers of television news, can I state very clearly that this bill is not about smacking. This bill is not about family values. This bill is focused on section 59 of the Crimes Act 1961, which provides that every parent of a child is justified in using force by way of correction towards a child if the force used is reasonable in the circumstances. The issue is our understanding of “reasonable force”.

New Zealanders are in agreement that children should not be assaulted or brutalised. New Zealanders are also in agreement that parents who smack children must not be criminalised. The problem lies with the interpretation of section 59. Section 59 allows parents to use physical punishment with the intention of disciplining their children without being guilty of an offence, as long as the force used is reasonable in the circumstances. Section 59 operates as a defence that can be raised in relation to any charge involving the application of force to a child by a parent. However, the term “reasonable” is not defined.

The test of reasonableness is one of fact. Therefore, if that defence is raised in court, then “reasonableness” must be determined on a case by case basis. In making that decision the judge or jury can only be guided by their own experience, by knowledge of community standards, or past cases. Is their own experience determined by their experience as children, and when was that? There is a difference between Mr Hughes’ childhood and mine. Is it “their own experience” as parents, or is it their experience as grandparents? It is a very different time and responsibility.

In relation to knowledge of community standards, every member of this House will know that that issue is extremely difficult to assess, particularly because it is so much a matter of practice within a community or group. Lastly, they are guided by past cases.

Life and community activities change. My mother beat me, with little actual success I have to say, with a cane, as was shown over there. She beat all four of us with that cane. She raised three children by herself during World War II while my father was overseas. It was a fairly stressful time. She did that. It did not work with me and I can remember my brother, at 6 foot, breaking the cane in front of her. I did not beat my children like that, but I did hit them, and I acknowledge that. I am not proud of it, but life has changed. I would no more think of caning my children now than my mother would not think of it, because she believed it was so important.

It is very difficult to make general legal rules as to what is reasonable, and what is unreasonable, force. I suppose it is because of that difficulty that Sue Bradford, in her bill, argues that the solution is to repeal section 59; to repeal the defence that is available. Others, like some members of United Future, argue that we can solve the issue by clarifying the meaning of “reasonable force”.

The Labour caucus has agreed that there is benefit in the issues surrounding section 59 being referred to a select committee for further discussion and debate. It has therefore agreed to support the referral of the bill so that a full range of options can be identified and carefully considered. Some of those options do include repeal, as Sue Bradford is suggesting. They can include amendment to give judicial guidance on what amounts to “reasonable force”, or repeal with a specific prohibition of what the majority of New Zealanders would find unacceptable by way of physical force, and I suppose that means by trying to define it.

Labour welcomes wide public debate on which solution is the most workable. Parliament is a place of debate. That may surprise listeners. Parliament should be a place where issues are clarified. We should not be afraid of taking a difficult issue and putting it to a select committee to hear submissions and to clarify the issue with the community—not for the community, but with the community. That is why Labour is voting to send Sue Bradford’s bill to a select committee. That will provide a forum for argument, a forum for listening to submissions from the community, a forum for examination. It is hoped that some clarification will result.

We are not the only people who agree that this issue should be discussed and examined. The issue of whether smacking is good or bad is not the issue that is on the table, but whether section 59 of the Crimes Act 1961 is clear as to what makes a defence. What is meant by reasonable force? If we cannot clarify that, maybe we should repeal the provision, or rewrite it. As I said, Labour is not the only group to support such a discussion. In a release today Plunket said: “Plunket supports the bill going to a select committee, because it will provide an opportunity for public debate about the serious issue of violence against children, and whether it is appropriate or necessary to retain the legal defence for parents who assault their children.”

After the select committee hearings of submissions, a report will be prepared making recommendations about the future of section 59 and any amendments to the bill. Then members of Parliament will vote again as to where this bill proceeds. Then we have Every Child Counts, which is a wonderful coalition of Barnardos, Plunket, Save the Children, Unicef New Zealand, and Auckland University of Technology’s Institute of Public Policy. It is also supported by 290 more organisations and thousands of individual supporters who say that a select committee hearing provides the opportunity for legislators to receive submissions from all the interested parties such as parents, children’s organisations, academics, faith-based organisations, and children themselves. Once those views have been considered, then Parliament—the debating chamber, the listening chamber—as a whole, can have an informed debate.

I do get tired of simplistic reporting. This bill has been reported so lazily to the public as being simply anti-smacking. Parenting is a tough job. The story told by Sue Bradford, as an early parent, reminds me of things. Parents need support and encouragement. Too often, they feel alone. Parents need not to feel guilty. As I said, my mother caned me. My parenting skills were not quite like that, but I did hit my children, particularly in stressful times. But the action that I feel most guilty about is the several times I put my child in the garage, because he would not eat his peas— he turned 33 yesterday! I put him in the garage, because he would not eat his peas, and I left him there for an hour and a half. I think that is fairly shocking. How successful was I? He has turned out to be a vegan.

The Labour Government’s programme of SKIP: Strategies with Kids—Information for Parents is about supporting parents to find their way of working with their children. By voting to send this bill to a select committee, Labour is not arguing that one method of parenting is better than another. We know that parenting is the most important and the hardest of jobs. But we do need to focus on section 59, to scrutinise whether it is achieving what the community intends. I am confident that New Zealanders do not support the brutalisation and fear of children.

I ask my colleagues to consider sending this bill to a select committee for just such scrutiny—whether repeal or amendment. United Future, let us have this issue discussed.

JUDITH COLLINS (National—Clevedon) : As Sue Bradford will know, I considered long and hard whether to support this bill. When I saw the bill I discussed the matter with many parents, and I came down firmly on the side of saying for parents: “Hey, we know that parents cannot do a perfect job. I’m not a parenting expert; I’m just a parent. We don’t expect parents to be parenting experts. We expect them just to try to do the best for their kids, because if they don’t do it, no one else will.” Being a parent is one of the toughest jobs in the world. Our only preparation comes from our own life experience. No amount of education programmes or well-meaning advice from members of Parliament will necessarily make one scrap of difference to how a parent parents. The fact is we learn from our own parents, and we actually learn from our own parents’ mistakes—mistakes that we try not to make ourselves. No doubt, we all make our own mistakes, and mistakes that our own parents did not make we tend to make.

Children are not just little adults. Children cannot vote, they do not drink alcohol—I hope—they do not work for income, they do not get benefits, and they cannot stand for Parliament, but occasionally we wonder about that! A 10-year-old can hit his mother and get away with it. There are different rules for children and for adults, and there are reasons for that. I do not think anybody in this Parliament, and I acknowledge that previous speakers have also mentioned this, would ever condone beating children. But I think about being a parent and I think about being a child, and I know of people whose children have been burnt by boiling water. I have seen what happens when a little child has reached up and pulled the kettle cord, and boiling water has gone all over him. I think the only thing to do, when a 3-year-old is about to do that, is to smack the child’s hand, take him or her aside, and talk about it as best one can. [Interruption]

I raise a point of order, Madam Speaker. It has been made clear that we are not to have interruptions from the gallery.

Madam DEPUTY SPEAKER: There will be no comment from the gallery.

Dail Jones: I raise a point of order, Madam Speaker. I expect there will be an addition to the member’s time.


JUDITH COLLINS: Thank you, Mr Jones. It is not all right to say to a parent who takes that sort of action that he or she could be criminally liable. I note the points made by Sue Bradford and Marian Hobbs. I note the point that we would, hopefully, not have Child, Youth and Family Services workers running around interfering in situations like that, and, hopefully, not have the police doing that. But I also note that that was one of the arguments that, in particular, Mrs Bradford gave in terms of the Prostitution Reform Bill. It was said that the police might run around prosecuting people for prostitution, but I think there has been one conviction in about 3 years.

The fact is we cannot have it both ways. Parliament does not make laws so that they can be broken. If I were to smack the hand of an adult, that would be an assault. If I were to take an adult by the shoulder or arm and force that person to sit in a room by himself or herself for an hour, that would be an assault. If a parent picks up a child who is physically struggling, puts the child in a room, shuts the door, and leaves the child there, that is an assault, unless there is the defence of “reasonable force”. No amount of nonsense spoken in this House is going to change that. I understand that the previous speakers do not have backgrounds as lawyers, but I can tell them that that is an assault. The fact is most assaults are never prosecuted—but that is still an assault. We cannot afford to criminalise our children and our parents in this way.

I have listened to speakers talk about some of the simplistic answers. Well, this bill is a simplistic answer. When we come down to the House and see instruments such as whips and canes brought in here, that is done for effect and for a headline. The fact is we in this House do not know all the facts of those particular court cases. We were not one of those 12 jurors who looked at all the facts—we were not. It is not in our role to judge those jurors. If we need to redefine “reasonable force”, we need to do so, but simply to leave good parents wondering whether their child at a day-care centre might say: “Mummy smacks me if I do that.”, and the next thing the parent finds she is in trouble, is something we should not do to our parents or our children.

STEVE CHADWICK (Labour—Rotorua) : I congratulate Sue Bradford on having the bravery to bring this issue forward, and I think it is wonderful timing that it has come to the House before an election. I am proud to support this bill. I have been a long-time advocate for children and families professionally, having established the first women’s refuge in Rotorua and the first child advocacy service at Rotorua Hospital, where we had to do the forensic assessment of very abused children. That is where I learnt my trade. I now have the pleasure of co-hosting the Littlies Lobby, sponsored by Plunket and the Office of the Commissioner for Children. We have wonderful support for the campaign of Every Child Counts. This is an issue that is hugely controversial, but it is a discussion that is going on in our communities now. That is because of Sue Bradford’s bill, and she is to be congratulated.

There does need to be clarity around the issue of what is just known as “reinforcing behaviour” in relation to risk. The previous speaker mentioned the example of a jug of boiling water. We all understand that fine line when it comes to disciplining a child, but here we are talking about “reasonable force”. This bill does not condemn parents the rights to discipline their own children, and that includes smacking—something I never had to use for any of my children. We were probably of that middle class that rationalised with children rather than having to use the strategy of smacking.

The bill does not criminalise parents who smack their children, as extremists all around the country are suggesting. It is about giving consistent messages and protecting our kids. We do need to look at the definition of “reasonable force”—and heaven forbid, lawyers spend enough time in the courts trying to define what reasonable force is. Sue Bradford’s bill simply removes Section 59 as a defence before the law. I am married to a lawyer who deals with family law cases, where, heaven forbid, we see enough lawyers trying to hide behind the defence of reasonable force, which is simply inexcusable for many of the cases that go before our courts. This reminds me of a very young child whom I admitted to our children’s ward. I held the child up to get him into the cot, and his body collapsed under my arms. His father told me that he had not struck the child; that the child damaged himself trying to get out of the cot. But 22 bones in that child’s body had been smashed. That child had been struck. It is indefensible to hide behind the defence of reasonable force in the courts.

The bill protects our kids from unreasonable violence. We all know that line of what is “unreasonable violence”. It also supports the United Nations Convention on the Rights of the Child. I remind members that New Zealand is a signatory to that treaty, which is committed to protecting and ensuring that children’s rights are met—that is, the right to protection from harmful influences, abuse, and protection. We are signatories to this treaty internationally. New Zealand reported on that convention in 2003. It is next due to report in 2008. One of the recommendations in 2003 stated that section 59 of our Crimes Act was inconsistent with the convention. It recommended that appropriate mechanisms be put in place for programmes and services for parents. We do know how difficult parenting is.

As a Government we have done so much about protecting the rights of children—from Te Rito, Opportunity for All New Zealanders, Agenda for Children, and SKIP: Strategies with Kids—Information for Parents, and we held a hearing on “Creating a Culture of Non-violence”. One of our recommendations from that was that we needed to look at the whole aspect of violence with a whole-of-Government approach, and in my view that also suggests repealing section 59. I am proud to support this bill.

DAIL JONES (NZ First) : On behalf of New Zealand First I want to emphasise New Zealand First’s concern for the family and all the members of the family. As members will recall, New Zealand First put forward a bill, the Commission for the Family Bill, in the name of Craig McNair ultimately, and it had, I think, the best definition of “family” of any of the families bills that came before Parliament this year. We got it right this term, and we got it right the first time. Unfortunately that bill was not supported by the House. For myself, when I came into the House in July 1976 and made my maiden speech, I said I was very pleased that the then National Government, newly re-elected, had re-established the Cabinet committee for children and the family. I mentioned that especially in my maiden speech.

I am the father of three children, and I have admonished my children, both my giving them a slap on the back of the hand and, on the extremely rare occasion, by using a little black strap. It was something that was in a woollen car seat cover, and it sort of fell out one day. It was only this big, not big at all, and it seemed to be a very appropriate thing to use on the very, very rare occasion when someone did something terribly wrong. I agree with Marian Hobbs that the main concern as a parent in those early days, especially with our first child—and most experiments I think are conducted on the first child, one way or the other—was to get the child to eat. That usually seemed to be an issue at dinner time, when my wife had gone to a lot of trouble in preparing a good meal and our son would not eat anything. So we gave him a slap on the back of the hand to encourage him to eat. My daughter never had any admonishment by me. My younger son was a little naughtier, and he got the black strap on the hand at least once. I do not think that that was necessarily violent; I believe that what I did in the circumstances was appropriate parenting. Of course, if this bill were passed into law, I would be committing a criminal offence by doing that. It is a criminal offence to assault someone, but a defence is currently available to a parent if any admonition is of a reasonable kind. This bill would render someone who does what I did liable to a criminal charge.

I think that one of the worst things a parent can do—and it is not covered in this bill—is to shout at his or her children. I think that to shout constantly at a child, and to have parents shouting at each other, can do more harm in the average family than the occasional slap on the back of the hand does. I think that one of the worst things we can do to a child is to not speak to him or her for about 2 weeks. That is another thing that some parents do, and it can be even worse than a one-off slap on the back of the hand to warn children to pull themselves together. One hates to say it, but as parents we may feel even more hurt than a child does, because we have had to admonish a child in that way.

Judith Collins mentioned the boiling water situation. When my children were growing up we had a house that had open fireplaces with a surround around them. One cannot stop a 2-year-old from toddling up and heading towards a fireplace. Even with a surround around a fireplace, a child can touch it and get burnt. Somehow or other we have to teach children that that is dangerous, before they find that out for themselves.

I find that I am unable to support this bill, because if I supported it I would be a hypocrite. It would be absolutely wrong in my own mind that I would be setting up a situation that I did not carry out, and I would not want other parents to become criminals for doing something that I did during the course of bringing up my children. Of course, people say that the laying of charges will be at the police’s discretion. Well, that is not very satisfactory. Police forces can change, circumstances can change, and Governments can change.

One thing I say to the people who make submissions on this issue—and I would like to say this to Plunket—is that they should have another look at the answer to question No. 1 in Plunket’s paper, Questions and Answers on the Repeal of Section 59 of the Crimes Act 1961. It states: “It will simply remove a legal defense that is used when parents seriously assault their children—”. I think that in that case Plunket has it slightly around the wrong way. When I look at the Littlies Lobby survey, I see that it really should have asked the question: “Have you smacked your children?”. That would have been very helpful. Instead, it has come up with question No. 4. I appreciate the trouble the Littlies Lobby went to, but of the answers given, 1,332 people admitted that they did smack their children. So there is a lot of ambiguity and uncertainty.

Of course, Sweden has come into the act once more—the Plunket paper mentions Sweden. We cannot do anything these days without Sweden being mentioned. My investigations show that things have become worse for children in Sweden since the passing of Sweden’s declaratory law.

STEPHEN FRANKS (ACT) : I look at these matters first as a lawyer, then as a citizen and as a parent. I became involved in this issue 5 years ago, when I was asked to speak at a Barnardos forum. I realised later that it was assumed that I would be the man in the black hat, because I found that all the other parties—National and New Zealand First included—were keen on repealing section 59. I assumed that they had a sincere, good motive. I understand the helpless rage that a teenager perhaps feels at being beaten. I can see the awful hurt for children who are waiting for the world to hit them—the brutalising effect of helplessness in the face of adult strength.

I believe too that for many parents it is probably quite clear that non-violent methods of discipline are better. But I am very conscious of how humble we must be and how hard it is to find cause and effect in human circumstances. I suspect that the consistency and predictability of discipline is much more important than the actual kind, and I am quite confident that cold deprivation of affection will be more damaging than some temporary exasperation expressed physically. A vicious selfishness will be just that, however it is expressed, but discipline from loving concern will probably work, almost regardless of how it is expressed.

I have found that the people I have dealt with—and I know that this may sound hurtful to many of them—are not sincere. I think, after the many, many debates I have now had, that they actually enjoy the fact that many ordinary parents are outraged by the suggested interference in their child rearing. I think that this bill’s promoters relish the anguish, because there is a kind of self-righteous pleasure in telling lesser mortals what to do. In fact, the more the protest, the more justified they feel—the more they feel that they are the leaders and are out ahead of all the people who do not know how to do it. They really get their jollies in this debate from the people who are resisting.

New Zealand is a violent place. I heard mention of 11,000 suspected cases of child abuse. Hundreds of kids out there are basically living wild, and sniffing glue. There are 12-year-old girl prostitutes. Thousands of kids who are sponsored by the State, and who are, in fact, bred by the State, are victims of each other.

I really ask the people promoting this bill whether they ever have a moment’s self-doubt. Do they ever stop to ask why New Zealand today seems to have so many more kids who have been abandoned? Do they ever stop to ask why we did not get the heaven on earth that was supposed to occur in our schools 15 years ago when corporal punishment was abolished? Does it ever occur to them that the 20,000 kids suspended from school, or two-thirds of the 18,000 kids in the Correspondence School, might still be at school if it had not been for the loss of a discipline method that was familiar to many of their families? I know that when that bill went through, conservative Labour Ministers said that it would hurt their people most of all, because their culture assumed rigorous discipline.

Humility is in order for this Parliament in any situation whereby 70 or 80 percent of parents are telling us to leave them alone. Juries hear the circumstances. The law says “reasonable force”; it does not say “serious force”. This law will criminalise. In fact, it is very hard for me not to use unparliamentary language when I hear some of the arguments here. I have debated with Sue Bradford five times now, and she keeps saying that she does not intend to criminalise people. She knows very well that assault is any uninvited, unintended, and unwelcome touching, and that smacking will be a criminal act if her bill goes through.

I am also very conscious that the last time I heard this kind of cant was when the prostitution legislation was going through. Labour and the Greens insisted that we remove the provision the police had wanted that would allow police to ask the age of prostitutes. Those members went through a crocodile-tear, eye-glistening performance in this House, while they took out the only practical means of enforcement. They are responsible for this misery.

JUDY TURNER (Deputy Leader—United Future) : I stand on behalf of United Future to speak to the first reading of the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill 2005, which is a member’s bill in the name of Sue Bradford.

At the beginning, United Future considered supporting the first reading, for some of the reasons that have been outlined by members in the House, so that it could go to a select committee and be discussed. One of our members also has a member’s bill to do with section 59, which has not been balloted. We wondered whether we had an opportunity to address his, and our, concerns around section 59 alongside Ms Bradford’s bill. We wrote to her and asked for some feedback as to whether there was a willingness on her part to consider our concerns. I have certainly shared a platform with her on this matter on several occasions in the last few weeks, and it is absolutely clear that anything less than full repeal is unacceptable to her. That has then forced us to say that there is no point in supporting a first reading, because there is no willingness and no openness to discussion. All Ms Bradford is open to is full repeal. That is why United Future will not be supporting this bill.

My colleague’s member’s bill, unlike what is often being touted around the galleries, is not about calibrating reasonable force. He looked at what was needed, because he knew that there were concerns. There have been rumours for years. Back in the 1980s, when I was parenting small children, there was talk about the repeal of section 59. What became obvious was that it is very easy to define “unreasonable force”. Hitting a child around the head, the chest, the stomach, the back, or anywhere that protects vital organs, and bruising, breaking the skin, or breaking a bone of a child are easily defined and would send a clear message to parents about what unreasonable force is. Unfortunately, there is no willingness for those kinds of discussions to be had.

When I first got into Parliament, a very sincere lady came to see me about section 59 and we had a bit of a discussion about it. In the end I said that I had to be honest with her; I had smacked my children on occasions when they were growing up. Her response was really interesting. She hung her head for a moment and said: “Yes, I lost it occasionally, too.” I said: “Hold on a minute. I didn’t lose it.” There is always the assumption that when a child is smacked, somebody has lost control. My message to her was that no parent should do anything if he or she is out of control, or if he or she is frustrated, tired, and distressed. Parents should not even open their mouths when they are in that condition. I have spent time with adults who are still suffering from things that were said to them by an out-of-control parent when they were small children that have been far more damaging than a smack that they may have received in those same years.

The parent-child relationship is unique. It is not like any other kind of relationship. Section 59 does not actually say anything about striking a child. It just provides a legal defence for parents who discipline their children using reasonable force. It respects the right of a parent to impose their will on their child. Every form of discipline does this. Even placing a child in time out requires the best use of reasonable force. The defence exists for parents to allow them to act in the best interests of their child, even against their child’s own wishes. As I said before, that is because the parent-child relationship is completely unique.

I finish by saying that the claim that this helps us to comply with our obligations to the United Nations Convention on the Rights of the Child is misleading, because the United Nations Convention on the Rights of the Child requests that all appropriate measures to protect the child from all forms of physical or mental violence, injury, or abuse are dealt with. “Violence, injury, or abuse” is a world apart from reasonable force.

JOHN TAMIHERE (Labour—Tamaki Makaurau) : Firstly, I want to state that we all abhor abuse and violence towards children—I do not think there is one member in this House who does not. Secondly, the bill before us as at present drafted, in the event that it is passed in its present state, would make all parents criminally liable for assault. In terms of the way the present bill is drafted, that is a fact. I do not accept or agree to that. I do accept, on behalf of the Labour Party, that because it is such a contentious issue, such a widely debated issue, it should be referred to a select committee so that Kiwis can have a good say about it. The extent to which the report back occurs will be interesting, to say the least.

Thirdly, I want to say that in my respectful opinion, in terms of the information and evidence received as Minister of Youth Affairs, 95 percent—or more—of Kiwi parents are great parents. I am sick and tired of hearing report after report from do-gooder organisations that feast on the failure of dysfunctional families, and that come into the House lobbying groups and telling Kiwi parents that they are bad parents. I disregard that and I have the greatest of disrespect for that. One day in this country and in this Parliament we will start to stand up, rejoice, and celebrate our great parents and the great successes they are achieving with the great kids they are producing. It is about time that we shift the debate to that extent.

Stephen Franks: Why don’t you vote against the bill?

JOHN TAMIHERE: I say to that tug muscle that I have just said that the bill is going to a select committee so that people can have a say.

I also want to challenge the view expressed by Stephen Franks, who thinks that New Zealand society is violent. Why does he not go to Iraq? Why does he not go to London, or wherever else? That is an overstatement. Is there violence in New Zealand society? Any violence, regardless of the degree or level, is unacceptable. That is the issue. The issue is that we should not beat ourselves up over it. The reality is that more people will then start to see our research projects. If people care to have a look at our research projects, in terms of what we fund, they will see that we always fund what is going wrong with Kiwis, rather than celebrating and rejoicing in what is right about them. So in terms of this debate, I say that the bill, as at present drafted, criminalises all Kiwi parents.

I am a parent. I have five children, and I smack them. It is not a problem to me, and I say right now that if someone wants to come on to my land, into my house, with my family, and dictate the terms as to how I can bring up my family, then that person has another thing coming.

When we have this wonderful debate before the select committee, and when everybody else gets involved in it, under no circumstances can we allow the nosy parker State to start to poke its nose into our lounges to the extent that it starts to dictate how we will rear our children.

The second thing is that that is the thin edge of the wedge. In the next minute I will not be allowed to give them a drink of coke, because it is full of sugar. Where will it stop? So I say to my colleagues that I support the debate, I support the bill’s going to a select committee, but under no circumstances can the present bill be referred back to this House to be voted on in its present state.

ROD DONALD (Co-Leader—Green) : In the next 5 minutes while I am speaking, a child will be hit unnecessarily. That punishment may scar the child for life. It may set the child on a path of violence, because he or she will have learnt at an early age that hitting someone is the way to get what one wants. I do not expect some members in this House—particularly Mr Adams—to believe me, but members may take heed of Dr Emma Davies, of the institute of public policy at the Auckland University of Technology, who is a spokesperson for Every Child Counts. In an article in the Christchurch Press on 2 June, she wrote that some of the children who grew up in violent homes are literally “incubated in terror”. She went on to state that those children are more likely to become seriously ill, or to commit violent crime without remorse. They are more likely to be victims or abusers when they grow up. And so the cycle goes on.

Sue Bradford’s bill is a crucial step towards addressing a wider culture of violence. It is not a silver bullet; it does not spell the end of child abuse and neglect. But it does remove the excuse of so-called reasonable force from our law. State-sanctioned violence against our most vulnerable citizens is intolerable in the 21st century. What may have been mainstream in 1961 is irrational in 2005. It is just as irrational as it would be if our Parliament were to legislate to give adults the power to use reasonable force against our elders when they enter their second childhood. Sue Bradford’s bill is an anti-beating bill, not an anti-smacking bill. When judges and juries continue to accept section 59 of the Crimes Act 1961 as legitimate justification for beating children with canes, riding crops, four-by-twos, and other weapons, it must be repealed. It does not need to be replaced by any “degrees of violence” legislation.

But I tell members not to take my word for it; they should listen instead to the advice of the organisation that had more to do with our growth in our formative years than anyone—with the exception, of course, of our immediate families. I am talking about Plunket. In a very comprehensive series of questions and answers on repealing section 59 of the Crimes Act, Plunket asks, amongst other questions, the following: “If Section 59 is repealed, will I become a criminal if I smack my child?”. The answer was: “Repeal of Section 59 is about removing a law—not creating a new one. It removes the legal defense for a parent to physically assault their child and acknowledges that just like adults and pets, children should be protected against assault. Repeal of Section 59 is not about criminalising parents or introducing a new law against smacking. Just as jostling and shoving at a rugby match is technically assault, the police only take action when it goes too far.” Another question asked: “What’s wrong with smacking and physical punishment?” The answer was: “The vast majority of parents want the best for their children and they want to raise their children in a positive way. Physical punishment is not the most effective way to discipline children. Positive parenting strategies have been shown to be much more effective.”

Plunket is a member of Every Child Counts, and the Green Party is pleased to support the four key policy goals of that mainstream lobby group, which are to put children and families at the centre of policy development, to ensure that every child gets a good start, to end child poverty, and to reduce child abuse and neglect. Sue Bradford’s bill is a positive step in the right direction. That is why so many organisations support this bill, including the Families Commission, the body set up for United Future—a body it had a big hand in creating. Its very own Families Commissioner has come out wholeheartedly in support of this bill, along with the Children’s Commissioner and a whole host of other opinion leaders and individuals. So I have to ask United Future, as a party that claims to be family-friendly, how it can oppose this bill.

MARTIN GALLAGHER (Labour—Hamilton West) : As the member of Parliament for Hamilton West, I wish to commit to Hansard an open letter to all members of Parliament from the Parentline Charitable Trust, written by the directors, chief executive Maxine Hodgson and Gayle McLean. That is a truly mainstream organisation, and the two people I alluded to as the directors of the organisation are exceptionally mainstream.

This is what they say: “To the public of New Zealand the repeal of this law is not an anti-smacking issue; it is an anti-bashing issue. Parentline was asked to comment by the New ZealandDigiPoll on the complex question put to the New Zealand public regarding the repeal of section 59 of the Crimes Act. When quoted the question by the reporter, I commented that the question was confusing and complex. From Parentline’s clients’ comments, Parentline staff and peers, plus participants in the recent Parentline child summit in Hamilton last week, it is noted that the repeal of section 59 is welcomed. The children, the experts, tell Parentline staff of the pain, fear, humiliation, and anger that they feel when ‘given the bash’. Never has a child commented on a smack. New Zealand needs to repeal section 59 as soon as possible, plus resource a comprehensive programme which addresses parenting issues, finances, health, relationship problems, etc., as well as parenting skills, tantrums, and sleep deprivation, etc. In the 28 years’ experience of Parentline, we find that parenting programmes that concentrate on the needs of children, parenting skills, without first addressing parenting needs, parenting issues, do not result in the best outcomes for the parent-child relationship.”

I have heard a bit tonight about Sweden. Maybe in my city, if we were a bit more like Sweden, Kelly Gush would not have been taken alone to the Starship Children’s Hospital to die alone. If that tragic death, along with many others in this country, is to have any meaning, I urge members to let this bill go to the select committee and let this Parliament address this serious issue. No doubt there will be members who will speak with forked tongue, and who will deliberately try to misconstrue that—

Paul Adams: What’s the connection?

MARTIN GALLAGHER: The connection is simply this, and I would like to quote from a very good mainstream member of this Parliament, Brian Donnelly, when he wrote in an article in the New Zealand Herald in 2001: “Section 59 of the Crimes Act not only gives protection to parents who smack their children; it also gives protection to parents who thrash their children with a piece of wood, leaving serious bruising several days later, as a recent case demonstrated.” If that is supposed to be family values, then I do not think it is family values, at all. What is the issue? The issue is that this Parliament will give a bill a first reading—no more, no less. This Parliament will give a select committee an opportunity to address the issues in order to see where a reasonable balance lies. This Parliament, in a democracy, will give community groups and individual submitters from across the spectrum the opportunity to address this very important issue.

In the mainstream, Dr Cindy Kiro, the Children’s Commissioner from the Office of the Commissioner for Children, and Paul Baigent, the chief executive of the Royal New Zealand Plunket Society, have said: “Given New Zealand’s appalling child abuse rates, it is important that as a nation we start talking about the violence against children, and ensure that our laws and policies consistently seek to reduce the incidence of all forms of violence against children. We support the repeal of section 59 as an important step in this direction, as it will remove the legal defence used by parents charged with assaulting their children. We do not believe repeal would criminalise parents who occasionally use physical punishment.”

The Minister in an answer to a supplementary question I put to her today, clearly said that it is not the Government’s intention to outlaw smacking, but that we want a robust, reasoned discussion at a select committee to find where the real balance is, and to protect the rights both of parents—the good, decent parents whom John Tamihere talked about—and of New Zealand’s children.

SUE BRADFORD (Green) : First of all I would like to thank the Labour members who have spoken for their wonderful support for this bill: Marian Hobbs for her wonderful anecdote about the peas, Steve Chadwick for speaking from the heart about her own experiences working with some of the very damaged children, and Martin Gallagher for just now pointing out again that it is not the intention of either the Labour Party or the Green Party somehow to use the repeal of section 59 to outlaw smacking. That is not what we are here to do tonight.

I turn to Judith Collins from the National Party, who talked about this bill being simplistic. Yes, it is. It is very simple. I make no bones about it. It is not a complex issue. All we are trying to do is to stop parents from getting away in court with using things like this riding crop on their children. That is all we are trying to achieve; it is a very simple goal.

Stephen Franks said many things that I disagree with—as usual. He talked about the people who are working to repeal section 59 as not being sincere, relishing the anguish of the families that are joining in this debate, and enjoying telling people what to do. What a load of nonsense! I know many of those people, and find his comments absolutely distasteful. I reject them, absolutely. Those people are giving their lives to promote the legal and human rights of children, and usually provide many, many on-the-ground services to families and children, as well.

Judy Turner talked about the United Future bill that Murray Smith has in the ballot. This is an issue that I am sure will be canvassed at length in the select committee, and, indeed, I welcome that debate. I tell Ms Turner that I am not shying away from it. I think it is very important that we have that debate. But, very quickly, I say that the reason the Green Party does not support amending the bill, and somehow calibrating or defining the type of force that we could not or should not use against our children, is that that does not afford our children their full human rights, it does not protect them, and it still sends unhelpful messages to parents. Such an amendment is unlikely to conform with the United Nations Convention on the Rights of the Child, and, above all, defining what might be unreasonable is totally problematic. We would start to get into things like at what age can a baby or child be hit or not hit, and by what form or what method can a child be hit or not hit—with what, how often, in what circumstances? It becomes simply impossible. I will actually find it very interesting to hear what is put before us at the select committee, but I defy any member of this Parliament to come here and say with certainty that this type of force will not harm a child, but that type of force will. It is simply impossible to say. I have looked at some of the bills that have been put up on this issue, and I just cannot see it from either a legal or a simple, human point of view.

Mr Tamihere, again rather forcefully, totally disrespected the groups that are working on the issue in saying that no one should dictate to his family. Fair enough. I am not trying to dictate to Mr Tamihere’s family. But I certainly reject the way in which he, like Mr Franks, has shown such disrespect to the people who are working in this area.

In the debate on this, I have heard many things. One is that the reason parents use violence against their children is that one simply cannot reason with children—that one has to hit them to make them see reason. In response—and there was an article about this in one of our newspapers recently—I ask why, if this is OK, we do not legalise the use of violence against old people, people with Alzheimer’s perhaps, people with severe psychotic mental illnesses, criminals, and other politicians. All these types of people often cannot be reasoned with. Does that mean the State should legitimise force against them? I do not think so. So why do we treat our smaller citizens differently?

Another argument I have often heard is: “I have to use force against my child, because my child is rebelling against me as a parent.” What nonsense! I celebrate all the rebels in the gallery tonight and out in our communities who are working so hard to change the culture of violence against our children, and who are working in so many practical ways to support families.

The repeal of section 59 of the Crimes Act is only one part of our journey, but it is an absolutely critical one. I look forward to the debate ahead of us, and to the day when full repeal of section 59 becomes law.

  • A party vote was called for on the question that the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill be now read a first time.

Hon BRIAN DONNELLY (NZ First) : I seek leave on behalf of the New Zealand First members to split our vote.

The ASSISTANT SPEAKER (Hon Clem Simich): Leave has been sought for that course to be followed. Is there any objection? There appears to be none. That is the way we will proceed.

A party vote was called for on the question, That the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill be now read a first time.

Ayes 63 New Zealand Labour 51; New Zealand First 2 (Brown, Donnelly); Green Party 9; Māori Party 1.
Noes 54 New Zealand National 27; New Zealand First 11 (Catchpole, Gudgeon, Jones, McNair, Mark, Paraone, Perry, Peters J, Peters W, Stewart, Woolerton); ACT New Zealand 9; United Future 7.
Bill read a first time.

Hon BRIAN DONNELLY (NZ First) : I seek the leave of the House for New Zealand First to table the names of the two members who have voted in favour of the bill.

The ASSISTANT SPEAKER (Hon Clem Simich): I guess you wish to have them recorded as well?


  • Document not tabled.

SUE BRADFORD (Green) : I move, That the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill be referred to the Justice and Electoral Committeereferred to Justice and Electoral Committee

  • Motion agreed to.