Child Discipline Act
Encyclopedia
The Crimes Amendment Act 2007 (formerly the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill) is an amendment to the New Zealand
's Crimes Act 1961
which removed the legal defence of "reasonable force" for parents prosecuted for assault
on their children. The law was introduced to the New Zealand Parliament as a private members bill in 2005 and drew intense debate, both in Parliament and at large. The bill was colloquially referred to by several of its opponents as the "anti-smacking bill". The bill was passed by an overwhelming majority in May 2007. An indicative referendum on the issues surrounding the law was held between 30 July and 21 August 2009.
Member of Parliament Sue Bradford
's private member's bill
was drawn from the ballot. The bill was to amend section 59 of the Crimes Act 1961
to remove the legal defence of "reasonable force" for parents prosecuted for assault on their children. The bill became law after it passed its third reading on 16 May 2007 with only seven MPs voting against it. The Governor-General of New Zealand
granted the bill Royal Assent
on 21 May 2007, and according to section two of the Act, the commencement clause, it came into force on 21 June 2007.
Adults assaulting children no longer have the legal defence of "reasonable force" but
"force ... may ... be for the purposes of restraint ... or, by way of example, to ensure compliance", according to the police practice guide.
in 2005, it was known as the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill. The Bill was later backed by the Labour party
and for a time it 'faced a rocky passage through parliament with the main opposition party, National
, giving its members a conscience vote on the issue'. A new section, Clause 4, was added as part of a political agreement with the Leader of the Opposition
, John Key
, and the amendment passed by 113 votes to 8 with both major parties voting for the bill.
Gordon Copeland
objected so strongly to the passing of the Bill into law that he resigned from the United Future Party. He also strenuously objected that Prime Minister Helen Clark ordered her caucus to vote on an issue that would normally be left to a conscience vote.
Convention on the Rights of the Child (UNCROC) includes two specific references to protecting a child.
The United Nations Committee on the Rights of the Child (UNCRC) interprets the Convention, monitors nation states and reports on their compliance with the current interpretation of the Convention. The UNCRC has also been a driving force for governments to change their stance on corporal punishment.
Many of the groups who originally supported the change to the Act also said that a law change was not a fully adequate response to protect children from abuse. The New Zealand Anglican Bishops said 'It is essential that changes to section 59 go hand in hand with increased access to high quality public educational programmes, which encourage non-violent discipline and child rearing.'
UNCRC also put pressure on the New Zealand Government for education and promotion of changing attitudes and parenting practice.
In the 2008 Budget the then Labour Government said it was 'providing $446.5 million over the next four years to improve our partnership with community-based social services to help deliver essential services to support children and families, including parenting and family violence programmes, and mentoring at-risk youth.' This included the "Are you OK?" anti-family-violence campaign.
The law change has been described by supporters as aimed at making 'Aotearoa New Zealand […]a place where children are secure, confident, understand limits and boundaries and behave well - without physical punishment' and to 'protect children from assault'. Opponents claim that the evidence that a law change can make this difference to a country is lacking and that evidence for the contrary is mounting.
The first conviction under the new law occurred on 22 November 2007.
A fifth person was changed under the law in 2011.
Gordon Copeland
resigned from United Future over the Bill since he did not agree with the party leader Peter Dunne
's support for it. However, Copeland was not re-elected to Parliament at the New Zealand general election, 2008
, although his political vehicle, The Kiwi Party, made that issue paramount in its election campaign.
During debate on the Bill a poster on the CYFSWatch website threatened Bradford. Google removed the website soon after from its Blogger
service.
A survey carried out between May and June 2008 showed that more people supported the Act than those who did not. The survey, carried out by UMR Research for the Office of the Children's Commissioner, polled 750 people, of whom 91% were aware of the law change and 72% professed to know "a lot" or "a fair amount" about the legislation.
Results of the questions were:
In February 2008, the bill having been passed in the meantime, supporters of the referenda claimed that they had collected enough signatures. If 300,000 valid signatures were collected by 1 March 2008 for each of the referendum petitions, they hoped the referenda would be held on the same date as the 2008 general election
.
The first petition was supported by Family First New Zealand
, the ACT Party and The Kiwi Party. Both Family First and the Kiwi Party promote the Judaeo-Christian argument supporting smacking. There is also contention within Christianity around this argument.
The first petition was presented to the Clerk of the House of Representatives on 29 February 2008, who vetted the signatures along with the Chief Electoral Officer. Of 280,275 signatures required to force a referendum, only 269,500 were confirmed—a shortfall of 10,775. A number of signatures were excluded because they were illegible, had incorrect date of birth information, or appeared more than once.
The petitioners were required to collect and confirm the requisite number of signatures within two months, to be presented to the Speaker of the House of Representatives. This occurred on 23 June 2008, when Kiwi Party leader Larry Baldock
handed over a petition which claimed to have over 390,000 signatures. The Office of the Clerk of the House had two months to verify the signatures.
On 22 August 2008 the Clerk certified that there were enough signatures, and the Government had one month to name a date for a referendum. Under the Citizens Initiated Referenda Act 1993, Cabinet could delay a vote on the issue for up to a year. The referendum was held from 31 July to 21 August 2009.
The referendum was non-binding (as specified by New Zealand's Citizens Initiated Referenda Act 1993), and thus does not compel the government to follow its result. Prime Minister
John Key
and Leader of the Opposition Phil Goff have said the results of the referendum will not commit them to repealing the law.
On 25 August 2009, the Chief Electoral Officer released the results of the referendum. According to the results, 11.98% of valid votes were Yes votes, and 87.4% of votes were No votes. Voter turnout was 56.09%, and 0.1% of votes were invalid.
The second petition, organised by Larry Baldock, was handed to Parliament on 14 May 2008.
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
's Crimes Act 1961
Crimes Act 1961
The Crimes Act 1961 is an Act of the Parliament of New Zealand administered by the Ministry of Justice.-Amendments:The Homosexual Law Reform Act 1986 amended the Crimes Act, allowing for consensual homosexual relationships between men....
which removed the legal defence of "reasonable force" for parents prosecuted for assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
on their children. The law was introduced to the New Zealand Parliament as a private members bill in 2005 and drew intense debate, both in Parliament and at large. The bill was colloquially referred to by several of its opponents as the "anti-smacking bill". The bill was passed by an overwhelming majority in May 2007. An indicative referendum on the issues surrounding the law was held between 30 July and 21 August 2009.
Introduction
In 2005, Green PartyGreen Party of Aotearoa New Zealand
The Green Party of Aotearoa New Zealand is a political party that has seats in the New Zealand parliament. It focuses firstly on environmentalism, arguing that all other aspects of humanity will cease to be of concern if there is no environment to sustain it...
Member of Parliament Sue Bradford
Sue Bradford
Sue Bradford is a New Zealand politician who served as a list Member of Parliament representing the Green Party from 1999 to 2009.- Early life :...
's private member's bill
Private Member's Bill
A member of parliament’s legislative motion, called a private member's bill or a member's bill in some parliaments, is a proposed law introduced by a member of a legislature. In most countries with a parliamentary system, most bills are proposed by the government, not by individual members of the...
was drawn from the ballot. The bill was to amend section 59 of the Crimes Act 1961
Crimes Act 1961
The Crimes Act 1961 is an Act of the Parliament of New Zealand administered by the Ministry of Justice.-Amendments:The Homosexual Law Reform Act 1986 amended the Crimes Act, allowing for consensual homosexual relationships between men....
to remove the legal defence of "reasonable force" for parents prosecuted for assault on their children. The bill became law after it passed its third reading on 16 May 2007 with only seven MPs voting against it. The Governor-General of New Zealand
Governor-General of New Zealand
The Governor-General of New Zealand is the representative of the monarch of New Zealand . The Governor-General acts as the Queen's vice-regal representative in New Zealand and is often viewed as the de facto head of state....
granted the bill Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 21 May 2007, and according to section two of the Act, the commencement clause, it came into force on 21 June 2007.
Legal context
Section 59 now reads:
Parental control
1. Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—
- a. preventing or minimising harm to the child or another person; or
- b. preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
- c. preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
- d. performing the normal daily tasks that are incidental to good care and parenting.
2. Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
3. Subsection (2) prevails over subsection (1).
4. To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.
Adults assaulting children no longer have the legal defence of "reasonable force" but
"force ... may ... be for the purposes of restraint ... or, by way of example, to ensure compliance", according to the police practice guide.
Social context
Prior to the repeal of section 59 of the Crimes Act, there were cases of parents who had disciplined their children using a riding crop in one case, and a rubber hose in another, who were not convicted because of the legal justification of "reasonable force". When the law was changed in 2007, some proponents of the change said it would stop cases of abuse from slipping through the gaps and reduce the infant death rate.Political context
When the Private Members Bill was first proposed by Sue BradfordSue Bradford
Sue Bradford is a New Zealand politician who served as a list Member of Parliament representing the Green Party from 1999 to 2009.- Early life :...
in 2005, it was known as the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill. The Bill was later backed by the Labour party
New Zealand Labour Party
The New Zealand Labour Party is a New Zealand political party. It describes itself as centre-left and socially progressive and has been one of the two primary parties of New Zealand politics since 1935....
and for a time it 'faced a rocky passage through parliament with the main opposition party, National
New Zealand National Party
The New Zealand National Party is the largest party in the New Zealand House of Representatives and in November 2008 formed a minority government with support from three minor parties.-Policies:...
, giving its members a conscience vote on the issue'. A new section, Clause 4, was added as part of a political agreement with the Leader of the Opposition
Leader of the Opposition
The Leader of the Opposition is a title traditionally held by the leader of the largest party not in government in a Westminster System of parliamentary government...
, John Key
John Key
John Phillip Key is the 38th Prime Minister of New Zealand, in office since 2008. He has led the New Zealand National Party since 2006....
, and the amendment passed by 113 votes to 8 with both major parties voting for the bill.
Gordon Copeland
Gordon Copeland
Gordon Copeland is a New Zealand politician who was a Member of Parliament from 2002 to 2008. He was a list MP for the United Future New Zealand party from 2002 until he resigned from the party in 2007. He is now Party President of The Kiwi Party, which he co-founded with another former United...
objected so strongly to the passing of the Bill into law that he resigned from the United Future Party. He also strenuously objected that Prime Minister Helen Clark ordered her caucus to vote on an issue that would normally be left to a conscience vote.
Geopolitical context
The United NationsUnited Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Convention on the Rights of the Child (UNCROC) includes two specific references to protecting a child.
Article 19
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Article 28
2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.
The United Nations Committee on the Rights of the Child (UNCRC) interprets the Convention, monitors nation states and reports on their compliance with the current interpretation of the Convention. The UNCRC has also been a driving force for governments to change their stance on corporal punishment.
Debate and aftermath
Bradford considers that smacking was illegal even before the Act was passed. When an illegal activity is reported to the Police or to Child Youth and Family (CYF), they are required to investigate the reported abuse. 'A police six month review early last year showed a 200% increase in families being investigated for "smacking" and "minor acts of physical discipline" yet less than 10% were serious enough to warrant prosecution.' Under clause 4, The Police have the option of not prosecuting the parents 'where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.'Many of the groups who originally supported the change to the Act also said that a law change was not a fully adequate response to protect children from abuse. The New Zealand Anglican Bishops said 'It is essential that changes to section 59 go hand in hand with increased access to high quality public educational programmes, which encourage non-violent discipline and child rearing.'
UNCRC also put pressure on the New Zealand Government for education and promotion of changing attitudes and parenting practice.
In the 2008 Budget the then Labour Government said it was 'providing $446.5 million over the next four years to improve our partnership with community-based social services to help deliver essential services to support children and families, including parenting and family violence programmes, and mentoring at-risk youth.' This included the "Are you OK?" anti-family-violence campaign.
The law change has been described by supporters as aimed at making 'Aotearoa New Zealand […]a place where children are secure, confident, understand limits and boundaries and behave well - without physical punishment' and to 'protect children from assault'. Opponents claim that the evidence that a law change can make this difference to a country is lacking and that evidence for the contrary is mounting.
The first conviction under the new law occurred on 22 November 2007.
A fifth person was changed under the law in 2011.
Reactions
A broad selection of organisations – including child welfare groups, churches, women's groups and businesses – publicly endorsed the bill and made submissions in support of it.Gordon Copeland
Gordon Copeland
Gordon Copeland is a New Zealand politician who was a Member of Parliament from 2002 to 2008. He was a list MP for the United Future New Zealand party from 2002 until he resigned from the party in 2007. He is now Party President of The Kiwi Party, which he co-founded with another former United...
resigned from United Future over the Bill since he did not agree with the party leader Peter Dunne
Peter Dunne
Peter Dunne is a New Zealand politician and Member of Parliament who leads the United Future political party. He has served as a Cabinet minister in governments dominated by the centre-left Labour Party as well as by the centre-right National Party...
's support for it. However, Copeland was not re-elected to Parliament at the New Zealand general election, 2008
New Zealand general election, 2008
The 2008 New Zealand general election was held on 8 November 2008 to determine the composition of the 49th New Zealand parliament. The conservative National Party, headed by its Parliamentary leader John Key, won a plurality of votes and seats, ending 9 years of government dominated by the social...
, although his political vehicle, The Kiwi Party, made that issue paramount in its election campaign.
Public opinion
Most public opposition to the Bill came from conservative Christian groups, who believed that it made even "light smacking" of children illegal. Multipartisan passage of the bill occurred after an additional clause was added stating that the bill did not remove police discretion on whether to prosecute in "inconsequential" cases when it was not in the public interest to do so.During debate on the Bill a poster on the CYFSWatch website threatened Bradford. Google removed the website soon after from its Blogger
Blogger (service)
Blogger is a blog-publishing service that allows private or multi-user blogs with time-stamped entries. It was created by Pyra Labs, which was bought by Google in 2003. Generally, the blogs are hosted by Google at a subdomain of blogspot.com. Up until May 1, 2010 Blogger allowed users to publish...
service.
A survey carried out between May and June 2008 showed that more people supported the Act than those who did not. The survey, carried out by UMR Research for the Office of the Children's Commissioner, polled 750 people, of whom 91% were aware of the law change and 72% professed to know "a lot" or "a fair amount" about the legislation.
Results of the questions were:
- 89% of respondents agreed that children are entitled to the same protection from assault as adults. 4% disagreed and 5% were neutral.
- 43% supported the law regarding physical punishment of children, 28% opposed and 26% were neutral.
- 58% agreed there are certain circumstances when parents may physically punish children. 20% disagreed with the hypothesis and 20% were neutral.
- 30% agreed that physical punishment should be part of child discipline. 37% disagreed and 32% were unsure.
Referendum proposals
Two petitions for citizens initiated referendums related to the bill were launched in February 2007. The wording for the two referendums was:- "Should a smack as part of good parental correction be a criminal offence in New Zealand?"
- "Should the Government give urgent priority to understanding and addressing the wider causes of family breakdown, family violence and child abuse in New Zealand?"
In February 2008, the bill having been passed in the meantime, supporters of the referenda claimed that they had collected enough signatures. If 300,000 valid signatures were collected by 1 March 2008 for each of the referendum petitions, they hoped the referenda would be held on the same date as the 2008 general election
New Zealand general election, 2008
The 2008 New Zealand general election was held on 8 November 2008 to determine the composition of the 49th New Zealand parliament. The conservative National Party, headed by its Parliamentary leader John Key, won a plurality of votes and seats, ending 9 years of government dominated by the social...
.
The first petition was supported by Family First New Zealand
Family First New Zealand
Family First New Zealand is a conservative advocacy group in New Zealand.It formed in March 2006 with former Radio Rhema talkback host and South Auckland social worker Bob McCoskrie as the National Director...
, the ACT Party and The Kiwi Party. Both Family First and the Kiwi Party promote the Judaeo-Christian argument supporting smacking. There is also contention within Christianity around this argument.
The first petition was presented to the Clerk of the House of Representatives on 29 February 2008, who vetted the signatures along with the Chief Electoral Officer. Of 280,275 signatures required to force a referendum, only 269,500 were confirmed—a shortfall of 10,775. A number of signatures were excluded because they were illegible, had incorrect date of birth information, or appeared more than once.
The petitioners were required to collect and confirm the requisite number of signatures within two months, to be presented to the Speaker of the House of Representatives. This occurred on 23 June 2008, when Kiwi Party leader Larry Baldock
Larry Baldock
Larry Baldock is a New Zealand politician. He was a member of Parliament for the United Future New Zealand party from 2002 to 2005...
handed over a petition which claimed to have over 390,000 signatures. The Office of the Clerk of the House had two months to verify the signatures.
On 22 August 2008 the Clerk certified that there were enough signatures, and the Government had one month to name a date for a referendum. Under the Citizens Initiated Referenda Act 1993, Cabinet could delay a vote on the issue for up to a year. The referendum was held from 31 July to 21 August 2009.
The referendum was non-binding (as specified by New Zealand's Citizens Initiated Referenda Act 1993), and thus does not compel the government to follow its result. Prime Minister
Prime minister
A prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. In many systems, the prime minister selects and may dismiss other members of the cabinet, and allocates posts to members within the government. In most systems, the prime...
John Key
John Key
John Phillip Key is the 38th Prime Minister of New Zealand, in office since 2008. He has led the New Zealand National Party since 2006....
and Leader of the Opposition Phil Goff have said the results of the referendum will not commit them to repealing the law.
On 25 August 2009, the Chief Electoral Officer released the results of the referendum. According to the results, 11.98% of valid votes were Yes votes, and 87.4% of votes were No votes. Voter turnout was 56.09%, and 0.1% of votes were invalid.
The second petition, organised by Larry Baldock, was handed to Parliament on 14 May 2008.
External links
- New Zealand Legislation: Crimes (Substituted Section 59) Amendment Act 2007
- Parliament of New Zealand - Crimes (Substituted Section 59) Amendment Bill
- Children's Commissioner - Submission on the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill
- The Yes Vote - NZ Referendum on Child Discipline 2009, a lobby group wishing to prevent changes to the current law