February 2006

This alert is to remind you that the deadline for submissions on repeal of Section 59 of the Crimes Act is Tuesday, 28 February. Section 59 permits "reasonable force" to be used against children and it has been used as a defence in court cases involving serious harm to children. The Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill to repeal Section 59 was put forward by the Green Party last year.

Aside from the obvious benefits for children in having legal protection against violence in the same way as adults do, passage of this Bill would bring NZ law into line with the United Nations Convention on the Rights of the Child which provides minimum standards of protection for children. Among the recommendations made to the government in 2003 by the Committee on the Rights of the Child were the repeal of Section 59, and strengthening "public education campaigns and activities aimed at promoting positive, non-violent forms of discipline and respect for children's right to human dignity and physical integrity, while raising awareness about the negative consequences of corporal punishment." [1]

Below is information on where you can get material to help with your submission on the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill; an article written for Action for Children and Youth Aotearoa which provides an overview of this issue; and how you can check if your organisation is listed as a supporter of repeal of Section 59.

EPOCH NZ have produced an excellent guide with succinct points for any submission in support of repeal of Section 59. The guide is divided into nine sections under these headings: Prevalence of violence in New Zealand society, Physical punishment and abuse, Physical punishment of children is not an effective parenting tool, Public attitudes towards physical punishment, Human rights and the United Nations Convention on the Rights of the Child, Public concerns - will parents become criminals? Amendment of s59 - why not just define “reasonable force”? Information on making a submission, and a Bibliography. The guide is available here.

There is also information available on the Green Party web site. The text of the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill is available here.

The Secretariat of the Justice and Electoral Select Committee would prefer to receive your submission by post or by email, not by fax; and submissions must be received on Tuesday, 28 February, at the latest. By post - send two copies of your submission to Julie Jordan, Justice and Electoral Committee Secretariat, Bowen House, Parliament Buildings, Wellington. By email - send as text in the body of your message, or as a Word attachment, to email or email.

If you require information on making a submission beyond what is included in the EPOCH NZ guide (see above), or on how to make a confidential submission to the Select Committee, please go to this web page.

by Beth Wood, Advocacy Manager, UNICEF New Zealand [2]

Every parent or person in place of a parent of a child is justified in using force by way of correction towards a child if that force is reasonable in the circumstances.

This statutory defence can be used by parents or care-givers of children (but not teachers or early childhood workers) if they are charged with assault of a child. It has been successfully used in courts in cases where adults have inflicted beatings of a serious nature (causing injury and/or involving use of an implement).

This legislation is currently attracting much attention because of a Private Member’s Bill (Sue Bradford) seeking its repeal. It is also the focus of Government attention because the UN Committee on the Rights of the Child has recommended its amendment and that the Government prohibit all corporal punishment of children. The Government is committed to reviewing the legislation but likely to be wary of full repeal because of feared public and political backlash.

Section 59 is an outdated and discriminatory piece of legislation which makes children different to adults in regard to their protection from assault. It implicitly endorses or excuses the use of physical punishment. Ample evidence exists to show that in addition to breaching children’s rights to physical integrity physical punishment is a risk factor for many poor outcomes for children including child abuse, anti-social and aggressive behaviour and decreased capacity for learning self discipline.

Nevertheless there is still strong opposition to the idea that smacking and hitting are not essential tools for achieving good behaviour in children. Some people still believe that parents have the absolute right to chose how they discipline their children. This opposition is manifested in protest about potential repeal of section 59 and suggestions that parents could be prosecuted for small smacks and for restraining a child in situations of danger, for example.

Repeal of section 59 would simply place children on the same basis as adults where assault is concerned. Technically any use of force in contact with another person is an assault but in reality only situations where considerable force, usually causing some injury, are complained about and prosecuted. It would not be in a child’s best interests if parents were prosecuted for minor and occasional smacks because of the stress it would cause in day to day family life. Smacking is not an essential or desirable part of discipline – but it is something that is likely to happen from time to time in the demanding situation of child rearing. Common sense will prevail and there is every reasons to believe that New Zealand, like the countries that have already changed their laws on physical punishment of children, will not experience an increase in prosecutions for minor cases of assault if the law is changed.

The primary intentions of repeal of section 59 Crimes Act 1961 are to:

- uphold children rights to safety and physical integrity;

- set a clear standard of non-physical discipline;

- improve the protection of the children whose cases involve severe enough assault to go to court; and

- move New Zealand towards change in its culture in regard to the use of physical discipline.

Common law and various other sections of legislation already exist to cover many situations where parents must intervene forcibly to protect a child from danger or to protect property.

It has been suggested that a compromise to amend the Crimes Act rather than fully repeal section 59 may be a solution that makes change more popular. In this scenario the law would define how children can be hit, for example, not on the head or neck and not with an implement. Amendment is not a solution – it does not respect children’s rights and they would be little better protected. Small children can be seriously hurt from a blow to the body for example. The public message to parents would still remain the same – that children can (and perhaps should) be hit.

Let’s get this one right now, children will be well served by full repeal of section 59 Crimes Act 1961.

The organisations which have signed up in support of repeal of Section 59 are listed on the EPOCH NZ web site, together with details of how you can add your organisation if it is not already there.

[1] Concluding Observations of the Committee on the Rights of the Child: New Zealand, October 2003. The relevant section states:

"29. The Committee is deeply concerned that despite a review of legislation, the State party has still not amended section 59 of the Crimes Act 1961, which allows parents to use reasonable force to discipline their children. While welcoming the Government’s public education campaign to promote positive, non-violent forms of discipline within the home, the Committee emphasizes that the Convention requires the protection of children from all forms of violence, which includes corporal punishment in the family and which should be accompanied by awareness-raising campaigns on the law and on children’s right to protection.

30. The Committee recommends that the State party:

(a) Amend legislation to prohibit corporal punishment in the home;

(b) Strengthen public education campaigns and activities aimed at promoting positive, non-violent forms of discipline and respect for children’s right to human dignity and physical integrity, while raising awareness about the negative consequences of corporal punishment."

[2] Written for Action for Children and Youth Aotearoa, who support repeal of Section 59.