Crimes (Substituted Section 59) Amendment Bill

I rise to take a very quick call and speak to this amendment from Minister Benson-Pope. National will be supporting the amendment. Earlier today we had speeches about our leader, John Key, and the Prime Minister, and Sue Bradford brokering an agreement that parked politics to one side and negotiated a deal that although some of us might think is less than perfect, is at least a better option for New Zealand parents.

It is clear that prior to today many New Zealand parents were unsure of how what was proposed by Sue Bradford would work. Many debates in this House made it clear that MPs were unsure how the bill as proposed, and as proposed to be amended, would work, and I am clear in my own mind that come tomorrow many New Zealand parents will still be unclear how this bill will work. I have no doubt there are MPs in the Chamber tonight who share those feelings. So it is appropriate that we build in to what we pass tonight and in 2 weeks’ time an opportunity to have a review of how the bill is actually working.

We have reached an agreement that provides some protection in the law itself for New Zealand parents from being prosecuted by the police, but this bill does not contain anything that will provide protection from investigations that may follow from Child, Youth and Family. I guess that the fear of many good parents is that if they are reported to the police and are not prosecuted, the police will advise Child, Youth and Family and that agency will bring an investigation down upon the parents’ heads. That is something we will have to watch and see. I know from the work I have done in the past with Sue Bradford that it is not something she wishes upon good New Zealand parents, either. This amendment that the Minister has put in will allow us to give the bill, when it becomes an Act, a reasonable amount of time to be put into practice. We will actually see how it works in practice, do a full review, and report back to this Parliament, so that we can judge whether in fact we need to do any fine-tuning to give protection to good parents, who are doing a very difficult job.

I speak on behalf of National members, who will be supporting this amendment.

One of the issues that might be reviewed is the concern expressed by Mr Copeland, who is a gentleman in this Parliament whose opinion I respect, that the effect of this legislation will be to prevent parents from uplifting their children and putting them in another room to have time out. I disagree with the member as to his interpretation of the legislation, and I think when the legislation falls to be reviewed in future years his interpretation will be shown to be incorrect.

In my opinion it is clear that the nature of many different relationships implies a level of physical contact that does not amount to an assault. I will give just two examples of that that I think prove the point. Firstly, when people go out on to a sporting field, they have far higher levels of physical contact tackling each other in rugby or hitting each other with cricket balls than the level of physical contact applied when a parent removes a child from a room. Yet no one suggests that the act of tackling in rugby is a technical assault. It is not; it is actually a level of physical contact for which consent is implied from the conduct. That is the sort of thing the chief executive will look at when reviewing this legislation, because if it were to be wrong it would be reviewed.

I suggest to Mr Copeland another illustration, which is slapping a friend on the back. Again, that is not an assault; that level of physical conduct is permitted in a relationship. I think the courts would find it very easy—even apart from the discretion the police have not to prosecute—to find that the level of physical contact a parent might have removing a child is actually an acceptable level of physical contact, and would not amount to a technical assault. So I am quite confident that if that did become an issue—and I do not think it will—section 6 would prove a means to resolve it. Thank you.

Well, I hate to put the member who has just resumed his seat ill at ease, but I can tell the honourable member that it has been just the case in premier league soccer that there was a tackle, and there has been a court case. Indeed, there have been some serious accidents on the soccer pitch, where it has been contemplated on more than one occasion that there has been an assault. I do not want to give the member any ideas, because the Government might move down that direction, but it is not true to say, by any means, that a tackle on a football pitch—a soccer pitch in particular—does not from time to time end up with an assault charge made against the tackler.

New Zealand First will again record a split vote on this clause, but to my mind this is an exceedingly important clause—exceedingly important. Personally, I have to say I do not think we have got this bill right. I do not think we have got the issues the way the general public want them. I think we have made a huge step forward tonight; we have clarified the police role in the issue and I think that will be a help. But I, for one, have not made up my mind whether I will support the third reading. I am going to see how the public react and what the polls say about this, because I think we could have done a better job. This clause gives Parliament the opportunity and, dare I say it, we do not have to wait for Mr John Key to be Prime Minister as he alluded to tonight—

💬 Mark Blumsky: Won’t be that long.

Well, he might well be there, but with this clause we are not depending on his being the Prime Minister before we have a constructive look at what this bill will do when it is an Act. So, to my mind, it is important. Some of my colleagues in New Zealand First do not share that view; they do not believe in reviewing an Act. But I think in Parliament we should do more of it. I think it is particularly important with this bill, because it is a controversial bill. To my mind this is the sort of bill that should go to public referendum. This is not a bill on which the 121 of us in this Parliament should totally decide the outcome. I believe that this is the sort of bill that the public could easily be allowed to have a say on by way of binding referendum. But we have chosen not to do that and we are now faced with passing legislation that may or may not work. ]

As I have said, I have reservations about it working the way people say it is going to work. I have some real reservations. I noticed that on Close Up tonight the member Sue Bradford was challenged by Simon Barnett. I have to say that Simon Barnett made a lot of sense to me—a good deal more sense than the MPs there. The member was challenged as to whether she would resign if a parent was singled out by police and prosecuted. She did not answer that. Maybe she would like to answer that now, because I was glued to the TV; I thought I was going to hear the answer to that question. If, under this legislation that is about to be passed, or to be passed in the next 2 weeks, there is a parent—a caring parent, not one who abuses his or her children—who inadvertently or for some reason smacks for the purpose of correction, if that parent is prosecuted and ends up facing some sort of judicial or embarrassing court action, will the member resign? That is what we are saying tonight is not going to happen. I have my doubts as to whether we have done enough to protect caring parents.

💬 Rodney Hide: Well, this member’s voting for it.

No, this member is not voting for it. [Interruption] No, I have made that quite clear, Mr Hide, that New Zealand First members are reserving our decision. Two of our members will certainly be voting for it, but the other five are waiting a fortnight.

💬 Rodney Hide: If you vote for it, will you resign?

I say to Rodney that he never ceases to amaze me with his daft questions. I want to get back to being a little bit more serious, because this is a darn good clause. It is an essential clause, in my view. It gives Parliament the opportunity to take a really good look at the way this legislation, after it is passed, operates, and I hope this clause gets through. As I say, New Zealand First members are split on it but we will vote with, I think, a majority for it. But I believe this serves a very good purpose and I would personally like to see many more bills of this nature having review-type clauses inserted in them. I congratulate the Hon David Benson-Pope on putting this forward. I think it is a positive move. As I say, I for one will be supporting it.

The United Future members will be voting in support of Minister David Benson-Pope’s amendment. We think it is vitally important that we review the application of the law in the not too distant future, because there is a real possibility that the practice of what happens over the next few years will actually be—if you like—the proof of the pudding, which is in the eating, so to speak. With the wisdom of that actual lived-out experience, I think it is very, very important that we commit ourselves to come back and review the matter.

I want to comment briefly on the comments of the Hon David Parker in relation to questions around assault. I respect his views, and he is a lawyer. But I want to respond, not in my words but in the words of two justices in New Zealand. The first one is the Hon Justice Wylie who, in 1989, said: “It is well known that assault does not require such a powerful action. A mere touching can amount to an assault. A pat on the bottom or a kiss can be an assault. The mere brushing of some part of a person’s body can be an assault.” So that really refutes David Parker’s comments. Then Justice Fisher in 1991 had this to say: “It is trite law that the amount of force used is immaterial. To kiss or touch a person against her will is an assault.” I am sure every female in the country would agree that such inappropriate touching—particularly from a male—would, in her view, constitute an assault and I am very, very conscious of that.

But I want to go back to my real point about why I wanted, for the avoidance of doubt, to see Parliament clearly state that taking a child to time out and so forth is not a criminal offence. Before I do that, I just point out again to David Parker that one of the arguments that the proponents of this bill use is that the law in New Zealand should be the same for children as it is for adults. That has been one of the central planks that has been repeated over and over again. If I were to lift up Sue Bradford tonight and take her to a naughty mat, that would be an assault—OK? Are we agreed on that? That would constitute an assault, and I would expect the police to be here very quickly. I would expect to be in the court, to be convicted, and to end up in the can. That just goes to illustrate that when we are dealing with adults rather than children, the realities are different. We do not actually wipe the bottoms of adults. We do not actually feed adults grated vegetables. There are many, many differences between the relationship of a parent to a child and that between adults. I think any person in New Zealand with any modicum of common sense knows that to be true. So that argument is just overly simplistic.

But my real worry, as I said—and we need to test this out in the next 2 years—is that in this legislation time out and the use of a naughty mat constitute criminal acts. That is what the law says. If I could quote the Hon Phil Goff in the context of the prostitution legislation, he stated as follows: “If this Parliament passes a law and at the same time decides we are not going to enforce the law, we are guilty of severe hypocrisy.” Those were Phil Goff’s words. That is exactly what we are doing in respect of time out and naughty mat activity. Therefore, because those activities are technically an assault under this bill, parenting organisations say to me that they cannot morally encourage parents to use time out and naughty mat activity, because in doing that, whether technically or not, they are breaking the law.

The fact is that most New Zealanders want to live their lives and discipline their children within the law. From that point of view, the whole question of prosecution is irrelevant. If I go into a supermarket, take a packet of chocolate peanuts off the shelf, and walk out without paying for them, I may not be prosecuted but I have broken the law. For me, morally, that is important. I live my life endeavouring not to break the law of New Zealand—as do most New Zealanders.

I think this review is important, and I think all of us in Parliament should support it.

The ACT Party rises to support the amendment set out on Supplementary Order Paper 107, too, because we should be reviewing legislation. I accept Mr Peter Brown’s point that we pass laws in this Parliament, then forget about them, and those laws lie there for years and years. It would seem to me to be a matter of good sense that we should review what we do, particularly when we have a bill like this, which has been controversial as to its effect and its operation.

So here we are, passing this legislation, and setting down a timetable for its review. Of course, social mores would have changed by the time of the review—for the better, I am sure—so the bill could be assessed probably more dispassionately than it can be at this stage. In fact, I would like to go further. Is it not odd that we do not always do this? What else do we do in life that we do not go back and review? Parliament makes laws and can change laws. It can amend laws and render them redundant. Everything we do in life that we have the opportunity to change and review, obviously we do so, because not to do so is to be foolish. Circumstances change, understandings change, and the facts of the matter can change. It has always perplexed me that we do not review laws. We are constantly reviewing anything we do in a business, or in running our own house, or in running our own life. That is what it is to be human; we get feedback all the time, and say: “Oh, I didn’t know that’s how that worked. I didn’t understand that. In that case I’ll make this slight adjustment and I’ll do this differently.”

It is also very important when we are setting ourselves goals to review our progress and to see whether what we are doing is achieving the goal. If we are looking at legislation such as this, we see that it very clearly has a social goal that people want to achieve. I have to say, in listening to the debate, there is some dispute about what that goal actually is, and I am sure that when there is a review, maybe it too can be better clarified. But, again, is that not what we do in life? For example, I may be trying to do X, and I am doing Y to get to X. After a while I will look at Y and ask whether I am heading in the right direction. By the way, if the Labour Government did a bit more of that, there would be a bit more humility and a bit better policy-making, because it seems to me that Labour passes things because they sound good, and to hang with the consequences, and to hang with the result.

I think that what we have here is a model for how we should be treating all legislation. Legislation should be subject to review against the original goals that we are striving to achieve. It should be subject to review against the circumstances within which we find ourselves. It should be subject to some feedback in terms of what is happening operationally. Let us be honest in Parliament: whenever we have an inquiry or an investigation into something, we are always a bit astonished at what we learn. I make the point that members should not worry: help is on the way. With my Regulatory Responsibility Bill, a mechanism would be established for review of all legislation, which would make it more rational and more subject to feedback and common sense.

So the ACT Party will be voting for this Supplementary Order Paper but not for this bill. Thank you.

I am not too sure. I have sat and listened to much of this debate, and I have wondered about the direction we are going in. I have to say that probably the most common-sense speech I have heard in this Chamber tonight came from Heather Roy in the ACT party. I wonder on occasion about how it must have felt to be that little boy who was watching the parade go by and who was brave enough to stand up to say that the emperor had no clothes on. I know that that story was recounted last night, but it is a very appropriate story to use right now, because that is what I see.

I hear a lot of fine words about leadership and demonstrating leadership, but it occurred to me that only one person was on the top of Mount Everest—there were not 121; there was one. Leadership is not often demonstrated by the masses. [Interruption] Well, there were two on the top of Mount Everest. There was Tenzing, as well—in fact, he was the first one up there. But there certainly were not 50 billion up there. There were not 2 million, or 4 million, or 121, were there? I say to Nandor that it was a very small minority.

💬 Rodney Hide: That’s just like the ACT party.

Just like the ACT party right now.

Sometimes, every now and then, one gets the feeling that the lemmings are following each other over the cliff and into the abyss, because they are all hailing the leading lemming and saying: “That lemming knows where we’re going and that lemming knows what we should be doing, and we are the lemmings who all aspire to be Ministers in future, so we will follow that lead lemming because we want to be Ministers, and we certainly don’t want to be out of touch with our leader.” This amendment, which I will vote for and which will provide for a review, is as much about having a review of the Key amendment and the entire legislation as it is about anything else.

I supported Chester Borrows’ amendment.

💬 Rodney Hide: It was a good amendment.

I thought it was a great amendment. I thought it at least gave the policemen and policewomen out there, who were charged with the responsibility of maintaining security and peace on our streets, some guidelines they could work within.

This Key amendment was designed around popularity and proving oneself as prime ministerial material, which Labour will regret. I have already had reports come in to me that Labour has just lost the next election. I spoke to a couple of Labour members over the dinner break, and I spoke to a couple of National members. Let me assure the Committee and let it be on the record that there are Labour MPs who are gutted. There are Labour MPs who believe that this has just cost them the election, because they have just handed John Key the lead seat. They have just allowed John Key to demonstrate to the entire population that he is a statesman and that he is able to knit together the grand coalition, which demonstrates quite clearly—

💬 Russell Fairbrother: You don’t believe that.

Mr Fairbrother is the man who said that a murderer was a subject of colonisation after he had rammed down a lady who was jogging in the streets.

💬 Russell Fairbrother: You don’t believe that.

I do believe that. Sadly, I believe that John Key has just trumped Labour beautifully, and Labour has allowed it to happen. The beauty and the sadness is that Labour MPs inside their own caucus fought for an amendment some time ago, and other Labour members like Steve Chadwick said that, no, the bill would not be touched or amended in any way, shape, or form. Well, guess what? I say to Steve that the bill has just been amended. That makes the bill no different from the existing legislation, which pleases me.

So I will vote for this amendment, but I will not vote for the bill itself, because it is a nonsense to pass a law that contains within it a clause that says that the law should not be enforced. I have just watched Mr Howard Broad on TV. The red blushes on his neck, his cheek, and his forehead said it all. When he said that this amendment had just lowered the threshold, and that it would be up to the courts to determine what is inconsequential, that proved to me what I feared to be the case: it will now require some New Zealanders to be charged by the police, for their cases to be tested in court, and for the judiciary now to decide what is consequential and what is inconsequential. That proved to me, right there and then on TV3, that this amendment is a nonsense.

I will vote for this amendment so as to have a review. I will not vote for the bill. I look forward to the review, and if that means that I am the only one standing out there on my own alongside Rodney Hide, Heather Roy, and Gordon Copeland, then let that be put on the record—because we are not lemmings.

The question was put that the amendment set out on Supplementary Order Paper 102 in the name of the Hon David Benson-Pope to add new clause 6 be agreed to.