July 7, 2009
From the Human Rights Commission
A legal opinion prepared by the Human Rights Commission finds that parents have little reason to be concerned that they risk being prosecuted if they give their child a trivial slap or smack.
The Commission has released the legal opinion to help inform debate in the upcoming referendum on the child discipline legislation.
Critics say the new law creates uncertainty for parents. However the legal opinion says the original section 59 of the Crimes Act was no clearer. It said the use of force by parents “by way of correction” was justified if the force was “reasonable in the circumstances.”
Because “reasonable” was open to interpretation, it led to parents being acquitted for disciplining their children with belts, hose pipes and pieces of wood.
Chief Human Rights Commissioner Rosslyn Noonan said, “We’re asking that all those with a genuine concern for the welfare of children and their parents provide accurate information rather than creating unfounded fears on this issue.”
The Commission’s legal opinion says that children may not be hit for the purpose of correction, but states: “Section 59 now allows parents (or someone acting in that role) to use reasonable force for a variety of purposes including the prevention of harm to the child” and to perform the normal daily job of providing good care and parenting.
The amendments gave the police the discretion to prosecute. When receiving a complaint, the police can choose not to prosecute if the offence is considered so “inconsequential that there is no public interest in proceeding with a prosecution.”
The Chief Commissioner said the police have used their discretion wisely and are not prosecuting parents without good reason.
Chief Commissioner Rosslyn Noonan said, “The real issue is that there should be no tolerance for violence against children, even in the guise of parental correction.”
The Human Rights Commission supported the amendments to section 59 because it meant that no longer could abusive parents charged with beating their children hide behind a spurious defence.
And because the amendments are a significant step in making real the human rights and responsibilities set out in the United Nations Convention on the Rights of the Child (UNCROC).
Ms Noonan regretted that the referendum question is so flawed that it cannot but provide a meaningless result. “The great shame is that the confusion the question has spawned will result in apathy and cynicism that will undermine still further people’s willingness to participate in New Zealand’s political processes.”