s59 and all that

Confusion reigns over the s59 amendment bill – I have been hearing things on the media that are plainly wrong (eg Rhema saying that the bill had passed). I also have realised that if anyone is to enter public debate about this and other issues there is a need for them to understand the process into how an idea ends up law. Please feel free to pass this on if you think it of help to others …

I’ll try not to muddy the waters more, rather I thought I’d give some context (I’d like to claim to be totally unbiased … but that’s not possible) … so here goes ….

The history

How the bill may become law
Sue Bradford put into the ballot a “members bill” to remove the defence of “reasonable force” which parents (and no one else) were able to use if charged with assault of a child. A Jury of our peers is expected to decide if the force used were reasonable or not.

That is she seeks to remove s59 from the Crimes Act which reads
s59 Domestic discipline
(1) Every parent of a child and, subject to subsection (3) of this section, every person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.

(2) The reasonableness of the force used is a question of fact.

(3) Nothing in subsection (1) of this section justifies the use of force towards a child in contravention of section 139A of the Education Act 1989.

The bill was drawn from the ballot and so it went into the parliamentary system. As a member sponsored bill, rather than a government sponsored bill, there are comparatively few days set aside for debate on it. These days are spread over many weeks. It has to go through the same process.

The process involves a first vote (the first reading). In this case, parliament voted in favour of it and it was sent to a “select committee.” There are many select committees in parliament. Each committee consists of a group MPs (but not Ministers) and their job is to get in experts, listen to them, and propose amendments to the law.

Sue Bradford’s Bill is called “Crimes (Substituted Section 59) Amendment Bill” [this is the new name – it had a name change part way through], It was given it’s first reading on 27 May 2005 and passed on to the Justice and Electoral Select Committee. The election intervened and the committee only heard and read submissions from about March 2006 onwards until they reported back in November 2006.

The results of the vote on the first reading:
Ayes 63 New Zealand Labour 51; New Zealand First 2 (Brown, Donnelly); Green Party 9; Māori Party 1.

Noes 54 New Zealand National 27; New Zealand First 11 (Catchpole, Gudgeon, Jones, McNair, Mark, Paraone, Perry, Peters J, Peters W, Stewart, Woolerton); ACT New Zealand 9; United Future 7.

NOTE: In the first reading debate it is clear that some voted for it just to have the bill debated publicly and looked at in select committee, not because they supported every part of it.

When all the committee agrees to a change it is entered into the bill. The bill is then voted for a second time. If it passes, it goes to the next stage in which all the MPs sit together in parliament in one big committee (horrors!). At this point any amendments offered by individuals are debated on and voted on one by one. This process can take weeks.

The second reading was on 21 Feb 2007.

At this point some parties [National, United Future, NZ First] had decided that this bill was to be a “conscience” vote (it individual members were free to choose which way they wanted to vote) and others [Labour, Maori, Act, Greens] decided that it was to be a party vote (ie individual members must vote according to what the party leadership decide). Note also, that there had been an election between the first and second readings, so there had been changes in the shape of parliament. Some parties now had more influence, some less.

Ayes 70 New Zealand Labour 49; New Zealand National 6 (Bennett P, Blue, Borrows, Hutchison, Power, Rich); New Zealand First 3 (Donnelly, Woolerton, Stewart); Green Party 6; Māori Party 4; United Future 1 (Dunne); Progressive 1

Noes 51 New Zealand National 42 (Ardern, Auchinvole, Bennett D, Blumsky, Brownlee, Carter D, Carter J, Clarkson, Coleman, Collins, Connell, Dean, English, Finlayson, Foss, Goodhew, Goudie, Groser, Guy, Hayes, Heatley, Henare, Key, King, McCully, Mapp, Peachey, Roy, Ryall, Shanks; Simich, Smith L, Smith N, te Heuheu, Tisch, Tolley, Tremain, Wagner, Wilkinson, Williamson, Wong, Worth) New Zealand First 4 (Peters, Mark, Paraone, Brown); United Future 2 (Turner, Copeland); ACT New Zealand 2; Independent: Field

The bill then went to the Committee of the whole house. IT IS STILL THERE with the third and final reading due in a couple of weeks (ie it is NOT law yet).

Finally, the bill is given a third overall vote (the third reading), if it is passed it becomes law as of the date in the bill that states when it becomes law.

Some of the amendments
An amendment by Taito Philip Field (Independent) for the law’s introduction to be delayed a month if it passes its final reading was agreed upon (He had amendments ranging from1 month to 50 months and by agreeing on the first, the rest were not debated – this was a delaying tactic).
An amendment by Judy Turner (United Future) for the issue to go to public referendum if it was not passed by more than 60% of MPs was defeated.
An amendment by Clayton Cosgrove (Labour) for the effect of changes to s59 to be reviewed in 2 years time was adopted
An amendment by Chester Burrows (National) defining reasonable force as ‘transitory and trifling discomfort’ has been proposed but not adopted as it has been superseded by the amendment proposed by Peter Dunne (UF) (but in effect hammered out by Clark and Key) that directs police to ignore any cases it deems “inconsequential and not in the public interest”. This amendment was adopted on Tuesday this week.

The final vote, if passed, will put the adopted amendments into law.

The debate and the emotion
Some of this is personal opinion – warning J

I am absolutely certain that no members of parliament want to see children abused. I am certain that they all want to see measures in place that reduce the number of horrendous cases where children have been killed or badly injured. Part of the debate is about whether this bill will have any effect whatsoever on reducing cases of serious abuse.

Part of the debate has also been about the criminalisation of parents (or not) if they smack a child. Gordon Copeland (United Future) asked a Queen’s Council lawyer to give an opinion on the current law. The QC concluded that a parent is always not guilty of an offence (unless they are hauled before a court and convicted of using “unreasonable force”). Others (including Sue Bradford and Helen Clark) have stated that parents are technically guilty of assault now under current law and so the proposed amendment does not change anything.

The clear public opinion is that parents do not want to be considered guilty of a crime (whether or not they ever end up in court) if they lightly smack their child or use force to put them in time out.

There has been a lot of rhetoric that has divided. Sue Bradford and supporters have continued to use words like “hit” and “beat” and not “pick up and put in time out” or “smack.” These are very emotional words and, understandably, they have resulted in a lot of strong “anti-Sue” reaction by those parents who don’t like to be called child beaters.

Also, the labelling of people with emotionally laden words has not been helpful – “liberal” “fundamentalist” “Religious right” etc.

The role of churches
This is personal opinion – warning J

In my opinion churches should get involved in (i) supporting parliamentarians who are trying to reduce the incidence of child abuse, (ii) supporting parents (obviously) (iii) praying for parliamentarians of ALL parties (not enough of this happens!!!!!) (iv) supporting the education of their parishioners about how parliament works (in my opinion too many Christians and indeed Christian leaders are very ignorant of what can and can’t be achieved in parliament and how it is achieved. This means their voice is less effective).

What I disagree with is
(i) if a church expresses theocratic tendencies. Ie – we know best how to run the country because God is on our side (sorry – but this is how Destiny behaves).
(ii) Church hierarchy trying to speak on behalf of members without having consulted with them first. I recognise that it is difficult because 100% agreement will never be reached. Generally I think it better for church leaders to speak about principals rather than specifics of a bill. I believe the Anglican Bishops were wrong to speak out as they did. I also think that whilst John’s comments in the Press this morning were all very interesting, I think it was unnecessary that these dissenting views be expressed in the public and secular media.
(iii) Church’s being deliberately confrontational (especially with one another). I think both the Ecumenical Church group led by Anglicans in Wellington and Destiny should front up and apologise to each other, and all churches in New Zealand for the awful division they demonstrated the other day. Jesus prayed for unity and we should work at it. We shouldn’t be naïve and think this means we agree with each other all the time. Unity, though, is to be worked on – especially and how we present ourselves as Christians to the rest of the country.


Where to from here?
The final reading will most likely adopt the bill with all MPs voting for it with the exclusion of both Act, 2 United Future, Taito Philip Field and 6 NZ First MPs whom I expect will continue to oppose it. It appears (but not certain) that if there are dissenting voices in Labour and National (which there are in both) then these voices will not be heard in the final vote because Labour definitely, and the indications are that National as well, are voting as a party. Whilst it is technically possible for an MP to vote against their own party they normally need permission to do so. Those who have asked for that in Labour have not been given it. It remains to be seen if the same thing will happen with the National MPs. An MP may still vote against their party without permission, however, they are likely to face severe consequences from the party (eg – losing their ministerial post, being excluded from the caucus meetings where decisions are made, being dropped as a candidate in their seat or from the list, in the next election).

It will become law a month later.

At some stage, in court with some parent accused of assaulting their child, it must be debated if the incident at hand was “inconsequential and not in the public interest.”

Possibly a referendum at the next election …
Referendum: Currently there is a citizens initiated petition going around sponsored by United Future board member and former MP Larry Baldock. The petition currently has 170,000 signatures. If it reaches 300,000 then the question is proposes must be put to the country next election day. As with all such questions they must be put in both the positive and negative so that people can decide if they support the repeal of the law or not. (ie it is a petition seeking to have a question asked at the next election, not a petition voicing opposition – so both people in favour of and opposed to the law change may sign it in the hope that they will have their say come next election).


Further reading:
Scoop: The Press Releases by parties and lobby groups: http://www.scoop.co.nz/stories/HL0703/S00511.htm
How a Bill becomes law: http://www.parliament.nz/en-NZ/HowPWorks/Laws/7/5/6/75639197bdff4a15b57eaaade358509e.htm
Details of what was said in debates in parliament (Hansard reports) and the select committee report can be found at: http://www.parliament.nz/en-NZ/PB/Legislation/Bills/b/2/4/b24fba96f2224b1985bc254efac71c63.htm


Some of you know of my role in United Future as it’s Chair for Canterbury and Westland. Please note: The views expressed here are mine, not United Future’s.

Dr John Pickering
john@ie-nz.com
354 1424