Crimes (Substituted Section 59) Amendment Bill

The point is that we are writing the Crimes Act here. We are not writing a parenting manual or the policy for Child, Youth and Family, the Plunket Society, or Barnardos. We are not rewriting the SKIP programme and we are not rewriting some page out of the New Zealand Woman’s Weekly. We are actually writing the law here.

The Crimes Act is full of matters called justification and excuse, and section 59 is one of them. It fits in with such matters of justification and excuse, like self-defence or the defence of another, the law around provocation, the law around necessity, the protection of property, and the right to eject people from one’s property on trespass. It all comes out of the same box. It all has to define an extreme of where the law will allow one to go when using force on another person. As abhorrent as that may seem to be, and as accused as I am by those on the other side of this debate of trying to define a justification for parents to smack their kids just so far, or assault them, or beat them, or whatever expletive they want to use, that is what the law does when one is writing matters of justification and excuse.

The reason for section 59 is that the law recognises, and has for generations, that parenting is a hard job—it is a damned hard job. So the law cuts parents some slack. It says that parents under stress may use force, but they can use force only if it is reasonable in the circumstances. We are not saying it is good or bad, we are not saying good parents smack and bad parents do not, we are just saying that parents do. We will allow them to use reasonable force, which is reasonable in the circumstances. The law cuts parents that much slack, it makes that accommodation for parents, because parenting is a real hard job and parents are under pressure. It is just as the Prime Minister recognised, when she was asked by Bob McCroskey on Radio Rhema some time before the election; she said exactly the same thing. The trouble is, of course, that she said on that occasion that she would not be voting to prohibit smacking, and that is exactly what she is doing now.

The Labour Party, the Greens, and everybody else who is voting for this bill, will remove that accommodation for parents under pressure, which has existed for generation upon generation. Helen Clark says that this bill will protect every child against being thrashed, bashed, thumped, and belted. Well, it will not. People on both sides of the debate admitted all the way through the select committee process that the bill will not protect those children. But, now, all of a sudden, just because the Prime Minister says it will protect them, what do you know, everyone else says it will, too. Well, 83 percent of New Zealanders out there know very well that it will not protect them. When Helen Clark talks about those of us who are suggesting an amendment in this case to allow parents to use reasonable force, she says that we want parents who bash, thrash, beat, and thump their children to be able to justify it. I say to her that when it comes to being a parent she would not know what day it is.

Kia ora. I want to take just a brief call and also reiterate what my colleague Mr Chester Borrows said. I have been a parent for some years. We have five children and on the odd occasion, yes, we have smacked our children. I take deep offence at what the Prime Minister said this morning in the New Zealand Herald. I am neither a basher nor an abuser of my children, and I regard what she said as a slight on all good parents of this nation.

This bill has nothing to do with protecting kids from abuse. There are ample laws in our statutes now that protect children from abuse, as my colleague Chester Borrows has just said. We are not writing a Child, Youth and Family policy, a child policy, or a child welfare policy; we are actually involved in rewriting the Crimes Act. If we are doing that, then let us stick to the issues.

What does this bill do? Does it make people with a guilty conscience feel better? Most probably, it does. What does it really do? Will it stop the sort of abuse that we see around this nation? It absolutely will not. What it will do is to marginalise between 80 and 85 percent of the nation’s good parents—good parents, who only want to get on with raising their children and making sure they have a shelter over their head, have clothes for their body, and are loved. What more could anyone ask for?

R Doug Woolerton: Smack it into them, mate!

That is Doug Woolerton. Poor old Doug. He is on his way out, so he has to have some sort of valedictory speech—

The CHAIRPERSON (H V Ross Robertson): The member has been here long enough to know that he cannot refer to members by one name. It must be by the member’s full name. I refer to Speakers’ rulings 26/6 and 26/7.

Thank you, Mr Chairman; I am just back from a 6-year sabbatical. Mr Doug Woolerton is on his last legs. But I digress. This is a serious matter, but Doug Woolerton does not see it like that. He wants to criminalise most of the parents in this good nation of ours. He wants to line them up. I will tell members this: the day this bill passes—if it passes—I make a vow to go down to the police station and confess that I have smacked my children. I have smacked my children—well, whoop-de-do! They are not in jail; they are actually good, responsible kids.

All that people who support this bill want to do is to criminalise parents. That is all they will do, even if—

💬 Hon George Hawkins: Rubbish!

Oh, yeah—well, it is a long time since old George Hawkins had some children to look after. But that is OK. This bill is all about a criminal act. It is about using force as a defence. If those who support it are saying that they want to be the parents of our children, then they should come out and say that. But then they can look after my kids, clothe them, send them to whichever school they decide on, and have all the responsibility of doing that. If they are not going to take on that responsibility, they should not tell me or the many other good parents in this nation how we should run our lives at home and how we should bring up our kids.

In the New Zealand Herald this morning, the Prime Minister had the audacity to actually accuse the majority of parents in this nation of being abusers and bashers. That is beyond belief. That will be the Government’s Waterloo. Every Government has a Waterloo, and that will be this Government’s Waterloo.

Before I call the next member, I just say that I have been fairly tolerant with speakers. We are actually debating clause 2A. I have given members some latitude on that, and members’ previous speeches have been pretty wide ranging. But I ask members if they can, please, to try to debate what the clause states. I know it is not an easy clause; I understand that. The real issues of the bill are in clauses 3 and thereon in. But clause 2A is a really narrow one. I suggest that members ask themselves, for instance, whether the bill should amend the Crimes Act or whether this is the right bill to do that with. They really need to relate their speech to what is in the clause. I know that is not easy, but the real meat is in other clauses.

As you have correctly pointed out, Mr Chairman, clause 2A of the Crimes (Substituted Section 59) Amendment Bill states that the bill amends the Crimes Act 1961. Therefore, I think it is highly relevant to this debate to determine what the Crimes Act 1961 actually states in relation to smacking a child. If we are to amend the Act, then, by definition, we are changing what is currently in it to something else. I particularly want to challenge the remarks made by the member Russell Fairbrother, by the Prime Minister, the Rt Hon Helen Clark, and by the sponsor of the bill, Sue Bradford, that smacking has always been illegal in New Zealand. To me, those comments display a complete ignorance of what the Crimes Act at present states in relation to smacking. What it states is that the parent of a child is justified in using force by way of correction towards the child if the force used is reasonable in the circumstances. Let us take a situation of a child receiving a light smack—one light smack with the hand. Is that a crime in New Zealand at the moment?

💬 Hon Members: Yes, it is!

No it is not. I will go to the Crimes Act, which is what we are debating. The Act defines the word “justified” as follows: “ ‘Justified’, in relation to any person, means not guilty of an offence”—not guilty of an offence—“and not liable to any civil proceeding:”, if the force used is reasonable. I want to ask a question of those who have just barracked in a prepared sort of way that one smack by the hand is already illegal. Since the Crimes Act 1961 was brought into being, from that day to this—[Interruption] My point is relevant to the amendment to the Crimes Act 1961, Mr Chairman. I am within the Standing Orders on this, I am absolutely sure. I want to ask those members how many parents who have smacked their child once have been prosecuted and found guilty in the courts of New Zealand. I will tell them the answer: not one single person. On that note, I rest my case and challenge the member in the chair, Sue Bradford, to tell me otherwise. Can she tell me where and when the parent of any child who has been smacked like that has been found guilty of a crime. The member is saying that smacking at the moment is a crime; I am saying very definitely that it is not a crime.

I would like to take a brief call to make a direct response to Mr Copeland. Of course, as far as I know, there has never been a conviction or a prosecution of someone once lightly smacking a child. That is simply because we have the defence of reasonable force under section 59 of the Crimes Act, which is for the purpose of correction. It is this section this bill seeks to repeal. The problem is that at the moment we have cases where people who severely beat their children escape conviction in court under section 59 of the Crimes Act. The whole point is that this bill is not an anti-smacking bill; it is an anti-beating bill. Under section 194 of the Crimes Act an assault on children under 14 is against the law. The situation in this country is that we have this defence of reasonable force, which allows people to get away with quite seriously assaulting their children. Thank you.

I want to record, in somewhat general terms, my objection to Sue Bradford’s Crimes (Substituted Section 59) Amendment Bill, because she is amending the Crimes Act to make normal parental behaviour criminal. That is her intention. It does no good for her to say that all she is doing is removing a defence, so, therefore, smacking is already illegal. That is simply not true. If one has a statutory defence, one’s actions are protected. No crime is committed; there is not a criminal offence. How much plainer can one get the situation than that? If we take away section 59, we create a criminal offence—and that is what Sue Bradford is doing.

The last intervention made by Sue Bradford was really remarkable, because certainly it seemed to me and my colleagues that Sue Bradford was actually making an argument for members to vote for Chester Borrows’ amendment. Sue Bradford at various times has come and gone a bit on that issue. I appreciate that she is now saying no, but at an earlier stage she said she did not want to criminalise ordinary parental behaviour—amend the Crimes Act, as is stated by clause 2A, to criminalise ordinary parental behaviour—even though that is exactly what she is doing.

I have asked people in my electorate, by a scientific, random opinion poll, for their view on this issue.

💬 Jill Pettis: Well, that’s an oxymoron—“scientific, random”!

I can tell members on the Government side of the Chamber and other members of this Committee that over 80 percent said they do not want normal parental behaviour to be criminalised. That is, in fact, entirely consistent with all the current opinion polls, so that proves the accuracy of my method. I actually asked a second question, because I thought it was important that we know more than that. My second question was: “Do you think that the use of implements should be eliminated?”. We have all heard about the cases involving jug cords, pieces of timber, and so forth, and there have been some problems with regard to that issue—we all know that. The public was also clear on that matter. Eighty percent do want implements to be eliminated. So, effectively, 80 percent of the population are saying that Chester Borrows is right—and Sue Bradford’s intervention effectively admited that.

One of the purposes of the criminal law is to make criminal conduct certain, one way or tother—something is either a crime or not a crime. People should not have to rely on police discretion determining whether their behaviour is criminal. If we allow this bill to go through, we are abandoning our responsibility as legislators in favour of the police exercising their discretion. That is an abandonment of our responsibilities. Good parents should not have to rely on police discretion. Good parents should be able to understand the law and say that either their conduct fits within it or it does not, in some cases perhaps. That is the role of legislators—to provide certainty to our society.

The proposal made by Sue Bradford to amend the Crimes Act will criminalise normal parental behaviour, and that is why it is simply wrong for us to be legislating in this way. There is a deep anger in the community. There is deep anger in the community, firstly, about the way that this Government is ignoring the heartfelt views of New Zealanders. But it goes further than that. Secondly, people in the community are asking the Government and Sue Bradford why they are potentially making them criminals, why they are asking them to become dependent on police discretion, and why they are making the law less certain, so that ordinary parental behaviour becomes criminal behaviour.

The Prime Minister herself was confused on this whole issue, as well. She said this bill was aimed only at those people who beat their children. That is wrong, and she knows it is wrong. We have proved that in this Chamber by quoting her own words back to her. I say that Government members should read what the Prime Minister has said, and vote for Mr Borrows’ amendment.

The CHAIRPERSON (H V Ross Robertson): In the hope that someone will be relevant to the clause, I will call the next speaker. But I want members to try to debate clause 2A. We are not actually doing that at the moment.

I move, That the question be now put.

I will be very, very specific about what this particular clause, 2A, does. It amends the Crimes Act. I have looked at the Crimes Act to see what that Act—especially as it relates to section 59—is intended to do. Its intention is good and honourable. The Crimes Act states that hitting somebody is wrong. If we go and beat up people in the street, hit them in the pub, or wherever else, that is a crime. I am pleased that that is a crime and that nobody in this Committee would support doing it.

But if we look at section 59 of the Crimes Act, we see that it provides a reasonable defence for parents who may have used what would not be acceptable in another situation. For example, I would not accept any other parent giving my child even a slight smack. That is not that person’s role, it is not his or her function, and I do not want other parents or anybody else doing it. But section 59 provides a defence for a parent who may have done so.

Some of the hysteria that has been whipped up around this issue comes from the view that every time a parent smacks his or her child, the parent will be taken off to jail by the police and charged. I think that view is wrong, but the sponsor of the Crimes (Substituted Section 59) Amendment Bill, Sue Bradford, needs to think about some cases that I think would be of grave concern to most New Zealanders.

The first case is in matrimonial property dispute area. I have had experience in this as a constituent member of Parliament, and I am sure that Sue Bradford may have had the same experience. When a marriage is breaking up we hear some outrageous claims being made, such as the wife claiming that the husband has sexually abused the children. That is a big call and, if it was true, it would be worthwhile claiming that. But in some cases it is just a matter of one parent trying to get back at the other parent by stopping that parent getting custody of the kids.

I look at the Crimes Act 1961 and I think that surely if we make it a crime to smack children, as the removal of this defence will do, then when it comes time for a matrimonial break-up, it will be really easy for someone to win the matrimonial settlement. A parent might just tell the truth and say that the husband, for instance, hit the children. He might have given them the gentle smack that we have talked about. It might have been agreed by both parents that it is good to teach the children the proper way to behave and to teach them right and wrong. But now we see the difference. The husband will have to fess up. The judge might even ask the children whether Daddy gave them a smack. The kids will innocently say that he did, and, because the section 59 defence is removed, the husband will then be a criminal, and that could impact heavily on his ability to get custody or all sorts of other things. So there is a situation under this legislation that we will immediately be exposing people to, whereas in the past parents could say that they smacked a child, that they did it properly, and that their spouse did it as well or that both parents had agreed that it was teaching their child boundaries.

Then we get into the other sorts of disputes that members of Parliament are brokering all the time—disputes about neighbours. I mean, how better to get at our neighbour who has a noisy dog or who has a driveway that goes past our house than to try to make him or her a criminal? I have actually thought about the Crimes Act 1961, and I say that with this amendment we could make people criminals if we want to get at them for any of those things. Because section 59 will no longer be a defence, we can deal to our neighbours by saying that we saw them hit the kids or smack a child. We can say that we saw them smack a child.

💬 Jill Pettis: Relevance.

No, that is terribly relevant. Jill Pettis, who is normally at elocution lessons on a Wednesday, is going on about relevance. Well, I tell the member to go back to her elocution lessons, because they are not working. I also tell her that I think it is highly relevant that good, ordinary parents could, in the course of their normal lives, be made criminals.

None of us in this Committee are supporting any legislation that would allow people to use implements, tools, or weapons. Chester Borrows’ amendment takes care of all of that. Anybody who beats their kids should be prosecuted; I agree with that. Anybody who uses weapons or implements, or who leaves marks, draws blood, or cuts their children, should be dealt to. But what Chester Borrows is saying—what, actually, Sue Bradford has on a number of occasions defended, and what the Prime Minister has said she would never want to outlaw—is that parents should be able to use their right, with a gentle smack, to teach their young children right and wrong. But when it comes to this bill and Chester Borrows’ amendment to the Crimes Act 1961—oh no! That amendment from Chester Borrows, even according to Sue Bradford—here is how genuine she must be—would get her 90 percent of what she is looking for. That would give Sue Bradford a 90 percent chance of saving kids. It would stop all of the abuse and so on. But what will she do if she gets 90 percent of what she is looking for? Nothing—if she does not get 100 percent of what she wants, she will spit the dummy and throw the bill out. That shows that she does not care genuinely about kids, because getting 90 percent of what she wants would be a hell of a lot better than just throwing the bill out and walking away.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. National has a lot of speakers wishing to take a call on this clause. The amendment of the Crimes Act 1961 is extremely important to us, and I would like you to consider ruling accordingly and hearing the rest of our speakers, please.

The CHAIRPERSON (H V Ross Robertson): I refer the member to Speakers’ ruling 60/7 which states that the chairperson is the sole judge as to whether a closure is accepted. I also refer the member to Standing Orders 138 and 137(3). I am not going to accept the closure yet; I am going to accept the next speaker, the honourable member Rodney Hide.

We are debating clause 2A of the Crimes (Substituted Section 59) Amendment Bill. I want to pick up on the points that my colleague the Hon Maurice Williamson has been making about a real case that already exists in New Zealand.

But, first of all, I make this point. We are seeing a complete trampling of Parliament here with this bill, because this is, quite properly, a conscience vote issue. We see every political party, bar one, is having a conscience vote. We see the Greens; I know the Green MPs can vote as they choose, and they all choose to support Sue Bradford’s bill. I think that Parliament and the public of New Zealand can appreciate that. We see the ACT party—

The CHAIRPERSON (H V Ross Robertson): Is the member coming to the clause?

I know, I am coming to the clause—this is a vote; I want to explain that vote, then I will get on to the point.

The CHAIRPERSON (H V Ross Robertson): It is a very narrow clause.

It is a very narrow clause, but we are adjusting the Crimes Act in a way that will criminalise the parents of New Zealand, and we are doing so in a way that is undemocratic and unparliamentary. If the Labour Party and the Prime Minister allowed members to vote as their conscience dictated, this clause would not go through. The great National Party has MPs voting for the bill—that is fine; that is how a proper democratic party should operate. It is proud to let its MPs vote as their conscience dictates. If we go over to the Labour side of the Committee, George Hawkins wants to vote against this clause.

💬 Hon George Hawkins: No, I don’t.

He wants to vote against this clause, but he is not allowed. Clayton Cosgrove wants to vote against this clause, but he is not allowed. Dover Samuels wants to vote against this clause, but he is not allowed. If we had a free vote then I could accept the result, and so could the people of New Zealand. But we are not allowed one. Whose conscience is it that is determining this result?

💬 Hon Members: Helen Clark’s.

Helen Clark’s conscience rides over her own caucus. What a pack of voting ciphers!

I want to tell members about one case that I have been familiar with for many, many years as a constituent MP. It goes like this. A man was observed smacking his child in the street probably 11 or 12 years ago. A person reported his smacking his child to Child, Youth and Family. People from Child, Youth and Family turned up and interviewed him. It so happens that this man is a good friend of mine. He is a professional man and is very, very successful. He is also—I guess what we would describe as—a fundamental Christian. He explained when Child, Youth and Family told him—

💬 Hon David Cunliffe: Oh, he couldn’t have done it then.

Well, David Cunliffe wants to be a smart alec. Child, Youth and Family explained to him that he should not smack his child. He said that he was the father and he would smack his child. As a result of that, proceedings were instigated against the man and he lost his three kids to Child, Youth and Family. They were taken off him and his wife.

It gets worse. A psychologist then said to the wife that the best way to get her kids back was to leave the husband because he was the problem. She left the husband to try to get the kids back, and still could not get them back because of the smacking. I promise you, Mr Chairman, that this bill will make that a fait accompli. This is what then happened in the case. The children went through foster home after foster home where they were physically abused—they were bruised, and they were beaten.

💬 Hon Members: Oh!

“Oh, well. This isn’t relevant.”, the Labour members say. They do not want to hear the truth. The man finally got his children back after 7 years, and after spending $400,000 through the courts.

💬 Hon Member: That’s under the present law.

That is under the present law. What I am saying is this legislation will make that a fact of life. People smacking their children will be committing a criminal offence. That is what clause 2A does.

What do we hear from the promoter of the bill, Sue Bradford? We hear: “Don’t worry, the police won’t prosecute.” Excuse me? We live in a country where there is a rule of law, where this Parliament makes a law and it is the police’s job to implement it—they do not get a choice about which law they apply and which they do not. So what will happen is that when there is a complaint—and we have already seen this from the police—they will investigate. What this legislation does is make me, as a parent, a criminal.

Thank you for allowing me to take this call, Mr Chairman. I will try as much as possible to confine my debate to clause 2A, which is a part of the Crimes (Substituted Section 59) Amendment Bill that amends the Crimes Act—that criminalises good parents, and that makes a judgment call that this Government knows parenting skills better than parents themselves do and that if one does not toe the line, one will be committing an offence against the Crimes Act. With this amendment, good parents will be turned into criminals under the Crimes Act. Under the Crimes Act it is the crime of assault to apply, or attempt to apply, “force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose”. That is the definition of assault. A mere touching is defined as assault under the Crimes Act. A pat on the bottom is assault, or can be assault, under the Crimes Act. The brushing of some part of a person’s body can be assault under the Crimes Act.

Assault does not depend on the level of harm; harm can be great or minor. Assault is not just thrashing and bashing; good parents will be guilty of assault if they lightly smack their children on the bottom—that is the fact of it. We have the Prime Minister of this country saying: “We’re not going to have thousands of mums and dads lined up in court because a hand happened to come into contact with a bottom.” Well, that will not be the case, because they will be lined up in court, they will be criminalised, and they will be charged with assault under the Crimes Act 1961.

The Crimes Act as it currently stands, as we know, provides a defence in section 59 where reasonable force is used by way of correction towards a child. That is a question of fact—what is reasonable and what is not. That is what the few cases relating to this section have determined, whether that determination was by a judge or by a jury.

This matter has been sensationalised. We have heard about the case of the riding crop—a riding crop that was the thickness of a little finger, which was used against a 12-year-old boy who was bigger than his mother, was out of control, and was about to hit his stepfather around the head with a baseball bat.

💬 Hon Member: With a what?

With a baseball bat. He was about to—

The CHAIRPERSON (H V Ross Robertson): It is a very narrow clause.

Thank you, Mr Chairman. A jury of 12 reasonable, ordinary New Zealanders decided that that was reasonable and not a crime under the Crimes Act. This bill removes that defence under the Crimes Act and replaces it with a justification in using reasonable force for other than the purpose of correction. Under this bill one can use reasonable force to prevent harm, criminal activity, and offensive or disruptive behaviour. That is ridiculous, because proposed new section 59(2) inserted by clause 4 overrides that by the provision that nothing justifies the use of force for the purposes of correction. It makes a total nonsense to say that we can use reasonable force to prevent our children from being disruptive or offensive, but not use it as a corrective measure to prevent our children from being disruptive or offensive.

So what does this bill do? On the one hand, it appears to confer a defence in one clause, but on the other hand it takes that defence away completely in the next clause. That is ludicrous, and I suspect that this will be fertile litigation material for lawyers—which is the last thing any reasonable parent wants, the last thing any child needs or wants, and the last thing any family wants.

By amending the Crimes Act under this clause, in the manner contemplated by this bill, we are making more criminals. We are making criminals of good parents who are trying to bring up their children to be responsible, caring members of our society. It will be difficult enough for those children to grow up into responsible citizens if they know that their parents have just been turned into criminals. Thrashing, bashing, and beating are not OK. This bill, however, will create another mischief—that of criminalising parents. This bill is a disaster. It is a sticking plaster on the sore, but the sore remains. Yes, we have a mischief of child abuse and domestic violence, and, yes, we need to deal with it.

I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson): It is my duty to keep within the Standing Orders. After all, these are the rules that have been crafted for well over a century of parliamentary practice in New Zealand, and it is my duty to ensure that they are upheld. I have been very tolerant; this is a very narrow clause, and I can see that members are keen to get into the substance of the bill, so I am going to accept the motion.