Why Section 59 of the Crimes Act 1961
Parental control, needs to be deleted.
Only the words, "s.59 repealed", should remain.
(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.
(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.
Subsection (1) was substituted, as from 23 July 1990, by section 28(2) Education Amendment Act 1990 (1990 No 60).
Subsection (3) was inserted, as from 23 July 1990, by section 28(3) Education Amendment Act 1990 (1990 No 60).
Section 59 was substituted, as from 21 June 2007, by section 5 Crimes (Substituted Section 59) Amendment Act 2007 (2007 No 18)
Section 59 is only necessary to protect parents, not children.There is no need for s.59 Parental control, other than to allow parents to smack their children to stop them in the act of being naughty. Good parenting is required by law, otherwise parents can be charged with the crime of failing to provide the necessities of life. Kind, humane, caring parenting is never a crime and never needs justification and excuse. Section 59, Parental control should, therefore, be urgently removed entirely.
We saw the section 59(4) final deal between Mr John Key and Rt Hon Helen Clark to satisfy those who wanted to lightly smack their child, but how light is lightly. Only the words, "s.59 repealed", should remain. The Parental control alteration, in 2007, was wrong and an insult to childrens' full United Nations Human Rights enjoyment.
To some, this may seem an odd assertion, when thousands of New Zealanders, conversly, claim that the 2007 change giving s.59 Parental control, was too strong and has turned them into potential criminals for smacking their child. It actually wasn't strong enough, because it should have left only the words "s.59 repealed". That keeps good parenting in the protection of the Courts where bad parenting can also be better dealt with free of s.59 exemptions for violence. It's more important to ensure that children are safe from harm, than for parents to be exempt from criminal assault if they painfully over-restrain or, vaguely speaking, lightly smack a child. It's a matter of unravelling a twisted conflict of opinions, for an excellent principled approach. Here are some relevant New Zealand points applying to childrens' best protection.
(1) All human beings are born free and equal in dignity and rights, under basic United Nations Human Rights, in force in New Zealand. Children are smaller and weaker, so they need more protection than adults. Article 24:1 of New Zealand's ratified ICCPR Civil and Political Rights Covenant, guarantees this protection, under their status of minor.
(2) Children go from more, to less protection, upon becoming adults, so it's totally wrong that only children are withheld the full protection of the law, from a s.59 justifcation and excuse clawback, to control them, when the elderly are rightly not withheld that full protection.
(3) A light smack is violence to the child recipient. It would be to us too, as average sized adults, from a 2.2 metre tall weight lifting champion.
(4) Article 19.1 of New Zealand's ratified, CRC, United Nations Rights of the Child Convention, precludes all forms of physical and mental violence, even without injury, just as we all enjoy.
(5) Section 194 of the Crimes Act 1961, gives a child under 14 and a female, assaulted by a male, proportional protection from assault, via it being twice the maximum penalty, at two year's jail, than for assaulting any other person, under section 196, with a maximum penalty of one year in jail.
(6) Article 7 of New Zealand's ratified, ICCPR, International Covenant on Civil and Political Rights, precludes inhuman treatment or punishment, yet the New Zealand Bill Of Rights Act 1990, in Section 9 sadly replaces inhuman with disproportionately severe. This implies that inhuman treatment is excused, if it's proportional to the badness of the misdeed being dealt with. Inhuman treatment is never excusable. It's an utter scandal that the word inhuman was replaced. It's at the heart of New Zealand's violence problem. That bad approach has possibly misguided Parliament. Politicians ignorantly made the United Nations Human Rights disrespecting, s.59, Parental control, alteration.
Please click to see the 2005 www.freewebs.com/boractrick
(7) There's no equivalent s.59 for men who are rough towards their wives or employees, nor should there be for parents, who smack to control or, overly and painfully restrain their child.
(8) People are not criminalised, but actions are. It's thus a legal error to claim that the new section 59 of the Crimes Act 1961 criminalises good parents. It leaves some assaults criminalised, but not during a reasonable rescue. Rescue is never an assault for anybody rescuing anyone, unless with extremely rare gross excess of force used vindictively. Why treat something good, like rescue, as a crime and then legally excuse it? It's either a rescue or an assault. Why would a person rescue another, if he wanted to assault that person? Surely if assault was uppermost on his mind, then he wouldn't risk a rescue of the other person. Our Courts should bring guilty verdicts of a crime committed, free of mickey mouse legal gymnastics.
(9) Those who want to smack their children afterwards, for being naughty, want s. 59 changed back to how it used to be, to specifically allow this. Moreover, s.59(4) is a sinister clause which insults the Court system and leaves total disgretion, to the Police, on what is a criminal smack, without Court case precident to guide them. The Police should never be considered a mini court system to keep matters from District Courts without precidents to guide them. This is why there was no mention of United Nations Human Rights in Parliament's reported deliberations on s.59's alteration, otherwise it would be left to the Courts to correctly decide if a smack was a criminal assault, free of s.59 and especially its subsection (4) humbug. Section 59 legally justifies and excuses the bad, not the good. An appreciated kind pat is not an assault, whereas the same force of pat with a menacing spoken or gestured threat, is. The key to assault lies in the intent and expected reaction of the recipient.
(10) Article 9 of New Zealand's ratified, ICCPR, International Covenant on Civil and Political Rights, guarantees security of person. That includes childrens' security of person. Necessary parental acts don't violate a child's security of person, nor does rescuing anyone from the path of a car, that's speeding through a red traffic light, towards a pedestrian crossing. They absolutely respect a person's security of person. Not acting would ignor their security of person. Our Courts decide if a criminal assault was committed to generate a label of criminal on an accused person. The Police are under the Courts but s.59(4) implies that the Police are an independant Pre-Court process. This is bad. The Courts are where we ultimately find justice, not Police stations.
(11) We've let the pro-smacking lobby insult the children of New Zealand's United Nations fundamental Human Rights. We've let them dictate to Parliament that a child's painful smack is a triviality, not important enough to be dealt with by the Courts, when we know that a painful smack to an adult, by an unknown person, in a public place, most certainly would be. It's time to let the fine and admirable tradition of humanism come to the fore in New Zealand. Let us expose and extinguish the horrible tradition of corporal punishment here and it's rotten deceptive remnant in the 2007 ammendment of s.59 of the Crimes Act 1961, Parental control. Only then will the full story be told of how corporal punishment brutalised this nation's youth in schools and colleges. It was where a now jail sentence level of assault was administered as a daily routine by some teachers. They deserve to be exposed for the inhuman treatment that they considered as normal and good. Many schools and colleges in the USA still allow such brutality and is a factor in the otherwise incomprehensible USA international war on terror, with the Guantanamo Bay prison outrage. Please click link to see USA situation http://edition.cnn.com/2008/US/08/20/corporal.punishment/
Good Parenting is never a crime. It never needs justification
or excuse by Crimes Act s.59, to prevent a parent from
being charged with criminal assault
for good parenting.
♦ There are two sides to the smacking debate fence. On one side are those who think smacking a child is beneficial and good, while on the other, are those who think it's bad. Section 59 is only retained to please the first group. We need an unfettered section 194 and 196 of the Crimes Act 1961, free of s.59 clawback, to keep the first group under control. Section 59, in the justification and excuses part of the Crimes Act 1961, attempts to excuse bad parenting. It certainly doesn't need to excuse good parenting, which is never a crime. How stupid this ambiguous s.59 justification and excuse provision is. New Zealand children need the best treatment in their excellent upbringing. Plunket said, in their publicity before the 2007 change to s.59, from Domestic discipline to Parental control, that only an abuser needs s.59. The same would still be their claim, I hope. The intention was originally to simply remove s.59, but protests from the pro smacking lobby have temporarily won an alteration for more ambiguity on what is an inconsequential offence.
♦ The journey continues with vigour, for those working to remove s.59, without substitution, from the Crimes Act 1961. Remember, only an abuser needs s.59. Let no one fool us into thinking that to carry out kind humane parenting is a crime that must be excused by s.59 Parental control nonsense. Not to parent kindly and humanely, so that a child is deprived of the necessities of life is, conversly, a crime.
♦ It's monstrous that those who wanted to keep a filthy right to smack children, have been appeased for selfish political reasons, with a Court insulting re-write of s.59. It was previously only needed to legitimise corporal punishment. Legal sophistry over the Green Party Bill to Repeal Section 59 of the Crimes Act 1961 deluded the Government into thinking that even picking up a protesting child was kidnap or assault, without s.59 justification and excuse. The Select Committee Report on this Bill had no mention of United Nations Human Rights. It was it's downfall.
♦ The Preamble to the Universal Declaration Of Human Rights states the fact that ".....member states have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms." This was pledged in Article 56 of the United Nations Charter which refers to Article 55(c) on how the United Nations shall promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." The Universal Declaration's Preamble also reminds every individual and every organ of society to keep the Declaration constantly in mind while striving by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal recognition and observance. This was ignored by Parliament's Select Committee Report on the Green Party MP Sue Bradford's Private Member's Bill, to repeal s.59 of the Crimes Act 1961. Click http://www.parliament.nz/NR/rdonlyres/0F294939-83D6-486C-B0DF-BEB956729AF6/51146/DBHOH_BILL_6844_39294.pdf
♦ The pro smacking lobby wanted to retain the right to smack, during the repeal process of s.59, that faltered and settled for a protection of undefined light smacking. Smacking protection is 100% at the heart of the issue. Smacking ranges from painless to fatal and is better labelled violence. Those who say it's not, may be wise to rethink and realise that the Court system is gradual and slow but fair. Why would any Judge want to have a good parent accused of assault for kindly and humanely rescuing or firmly restraining their child? The term assault, however, has been twisted to include kind, humane, appreciated acts. The Police are uniquely, but sadly given the specific stated power, in the revised S. 59, to stop an inconsequential matter going to Court, which can include a case of painful smacking. Otherwise a child would have the basic human right respected, to be protected against assault, from equal protection of the law against it. That's only achieved with the removal of s.59 entirely, so that just "s.59 repealed" remains. This will recognise that painful smacking is a matter for the Courts from usual, "due process", Police procedures under an unfettered s.194 and 196 of the Crimes Act 1961, free of s.59 constraints.
♦ A child is more protected than an adult. There's no legal excuse provision to allow rescue of an adult, It's ridiculous to have a s.59 Parental control excuse to prevent a child rescuer from otherwise being labeled an alleged criminal for the rescue. Our society must not imply that good acts are criminal as s. 59 suggests, by having to excuse them. We don't expect to be lightly smacked as adults, nor should children expect to be, as more protected people. Furthermore, we wouldn't expect a person who rescued us, to be charged with assault. That would be absurd, just as it's absurd to claim people wouldn't rescue a child if s.59 was removed from the Crimes Act 1961, so that only the words, "s.59 repealed", remained. It's time that New Zealand urgently repealed s.59 properly in this way. "S.59 repealed" is child protection.
May Peace Prevail On Earth