Donnelly Brian: Crimes (Substituted Section 59) Amendment Bill — Third Reading 
Donnelly Brian: Crimes (Substituted Section 59) Amendment Bill — Third Reading 
[Volume:639;Page:9290] 
Hon BRIAN DONNELLY (NZ First) 
: 
 I want to draw people’s attention to section 56 of the Crimes Act not section 59. It deals with what I can or cannot do to somebody who is wrongfully trespassing on my property possibly with criminal intent. I am allowed to use reasonable force to remove such a trespasser but it is clearly stated in section 56 that I can do that only as long as I do “not strike or do bodily harm to that person.” In other words the current law gives greater protection to a trespasser possibly one with criminal intent than it gives to our children. In a month from today that will no longer be the case. 
I want to point out another anomaly in the current law. If my granddaughter were to crawl out on to the street and I were to grab her and carry her kicking and screaming to safety I would not be protected under section 59. The reason is that I did not apply the reasonable force by way of correction; I did it for her safety. The same goes for the old perennial which is putting the child who is running wild in a supermarket into a trolley. As I do not take that action by way of correction I am not protected under section 59. 
When this bill becomes law I will be protected in both the above cases; whereas I am not in fact protected now. “But hang on” I can hear people say “whoever got prosecuted for the sorts of behaviours you’re describing?”. The answer of course is that nobody got prosecuted because the law does not deal with trivial or should I say inconsequential matters which is the very point I have been trying to make since the saga of this bill began. 
This bill is not about smacking. It never was. It is about our current legal framework—and the fact that the framework is far too permissive—and the levels of violence it allows to be dealt out to our children. The quality of the future we leave to our children will be determined by the quality of the children we leave to the future. Earlier today our select committee was briefed on factors that dispose people to crime. One of them was maltreatment as a child. The current legal framework which states that it is all right to hit kids invites the very sort of maltreatment that is associated with later criminality. The former Commissioner for Children Laurie O’Reilly told me in 1996 that we would never reduce violence against children in New Zealand unless we got rid of section 59. That is not to say there will be no more horror stories such as Delcelia Witika James Whakaruru Coral Burrows and Lillybing etc. We have murder laws but murder still happens. But it will reduce the overall level of violence towards our children—of that I am convinced. 
I have related to the House my personal experience when teachers were taken out from the protection of section 59. No longer did I become angry when confronted with antisocial behaviour by students. Such anger was a precursor to the delivery of corporal punishment. That is not unusual. Researcher Gabrielle Maxwell found in the early 1990s that 80 percent of physical punishment of children is carried out in anger. We have heard much about the loving smack. The reality of New Zealand children is not reflected in the phrase “the loving smack”. I recently spoke to a reporter who said she was always angry when she smacked her children otherwise she could not have carried out the punishment. 
I am therefore convinced that the passage of the bill will see a reduction of physical violence towards our children and New Zealand will be a better place for it. However I am equally convinced that the passage of this legislation will not see hordes of parents prosecuted for minor smacking just as we have not seen hordes of teachers prosecuted for physically moving children to the mat. In the case of this legislation the principles of de minimis of constabulary discretion and of the public good have been made explicit within the legislation itself. The advantage of the so-called amendment is that it has enabled a large majority of this House to vote in favour of the legislation. Such a majority will facilitate the public’s buying into the purpose behind the legislation and will accelerate behavioural change. 
I commend the New Zealand First caucus. From the outset back in 2002 when I submitted a repeal of section 59 bill to the ballot myself the New Zealand First caucus has stuck staunchly by its decision to make this matter a conscience vote and I thank my fellow caucus members for holding firmly to that position. The record will show that many of them were not convinced of the soundness of this legislation from the outset. However members have been able to listen to the variety of arguments both for and against the legislation as it developed. Some of my colleagues are still not convinced. They believe that the amendment still leaves it up to the police to define what “inconsequential” actually is. I may disagree with them but I respect their right to vote in accordance with their consciences. 
I must admit that I am pleased that the amendment has allowed three of my colleagues who have previously opposed the legislation to vote in its favour. However I wish to make it clear that that is not because they believe that the legislation is perfect; it is because they believe that the amended bill is better legislation than what currently exists. In one case it was the combination of the police discretion clause and the obligation to review after 2 years that has swung the vote. The same member went to members of the party hierarchy in his local area and sought their advice. They posed a question to him that asked what he would do if he had a casting vote and he told them that he would vote for the bill because it was an improvement on the current law. By a significant majority the party membership supported that call. Peter Brown will be voting for this legislation but he also wishes to make it clear that he urges people to sign the petition that is currently circulating if they are so inclined. 
However I want to extend my gratitude to Doug Woolerton who from the moment the bill came out of the Justice and Electoral Committee was convinced that the legislation was right and he has remained stalwart since that time. I say to Doug that I will always appreciate the support he has provided because as people will know our futures in politics were publicly threatened by some within our party. The threats did not shake our resolve but we certainly viewed them as serious—we still do because it is one thing to tell people they are wrong; it is a whole different thing to prove they are wrong. 
When I witnessed the vilification and abuse confronted by Sue Bradford I sometimes felt glad I pulled my bill at the time I did because I perceived the lack of numbers at the time. However I must also commend the Green Party for providing such unreserved support for Sue during what must have been extremely difficult times. I would also like to make note of the position maintained by the Maori Party. It is understandable that its constituencies would have had anxieties over this legislation fearing they would be disproportionately prosecuted under the legislation if it went through. In this case however it was the politicians who showed real leadership and I commend them for it. 
Helen Clark when she decided to champion this legislation showed enormous courage because there were significant political risks. At the midnight hour John Key also demonstrated a similar level of courage because his agreement to support the legislation also held huge political risks. Also I have to mention others who have continued their support. I have to mention the work that was done by Lynne Pillay in the select committee; also the work done over many many years by people like Beth Wood our ex - New Zealand First member Deborah Morris-Travers and a whole host of other people out there from a number of different organisations. 
When the opposition to this legislation was at its zenith I often used to quote Anatole France who said that it does not matter whether 10000 people believe that something that is wrong is right; it is still wrong. Therefore we have to stick by what we believe is in the best interests of the youth and young people of our country. I believe that today is a watershed day in New Zealand’s social history. It is a day that Parliament will look back on I believe with a great deal of pride and I guess we will wonder what the fuss was all about. But what we will in fact be able to say is that we will be leaving to the future of this country a somewhat better quality of child than the children who face the levels of violence they currently face. I therefore urge everybody to support the bill and congratulate for a final time Sue Bradford.