Copeland Gordon: Crimes (Substituted Section 59) Amendment Bill — In Committee 
Copeland Gordon: Crimes (Substituted Section 59) Amendment Bill — In Committee 
[Volume:638;Page:8859] 
GORDON COPELAND (United Future) 
: 
 I need to divert the debate slightly to the context of my own amendment to the Crimes (Substituted Section 59) Amendment Bill which—as I hope members know—is around the issue of time outs and naughty-mats. I want to briefly take the Committee through why I believe that making this amendment to the bill is necessary. As members will know the proposed new section 59 has three subclauses. Subclause (1) continues with reasonable force. Basically it maintains the status quo but turns it from correction to prevention and other normal daily tasks incidental to good care and parenting. Subclause (2) states: “Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.” As is well known under the law we are passing now it will therefore be an assault to lightly smack a child for the purpose of correction. Then subclause (3) comes in and states: “Subsection (2) prevails over subsection (1).” 
When I read that I thought: “What on earth does that mean?”. So I went straight away to the report of the Law Commission back to the select committee which explains why subclause (3) had been put in. It states: “Subclause (3) has been included (so that) - In the event of a potentially ambiguous situation such as ‘time-out’ where there may be a mixture of motives subsection (3) seeks to ensure that parents cannot rely on a corrective purpose for their actions.” In other words the report states that subclause (3) is there to ensure that if a child is sent to time out for corrective purposes then parents cannot rely on that as exempting them from criminality or a crime. The report makes it very very clear that if time out is for corrective purposes then under this bill it will be an assault. 
I was rather jolted when I read that and thought: “Gosh I wonder whether that’s right.” So I went to the trouble of getting an opinion on the issue from Peter McKenzie QC. His conclusion was categorical and unambiguous in concluding that the forcible carrying of a child to time out or a naughty-mat or similar if done for corrective purposes—that is the proviso—will come within the meaning of an assault under the Crimes Act 1961. In other words such activity constitutes a crime. 
It was wrongly claimed in this Chamber that Sir Geoffrey Palmer disagreed with Peter McKenzie. That is not the case. In Sir Geoffrey Palmer’s letter to Lynne Pillay on 8 March 2007 he states: “Committee members will recall that in relation to option 1 i.e. the bill now before Parliament the Law Commission was advised by a majority of the members that the outcome sought was a prohibition on the use of any force against children for corrective purposes. We are consequently delighted to receive Mr McKenzie’s independent confirmation that this objective is achieved by our proposed draft.” That objective is now incorporated into the bill. 
The Law Commission in its report to the select committee Peter McKenzie QC and then Sir Geoffrey Palmer have all confirmed that because of subclause (3) the use of time out and naughty-mats will be a crime of assault in New Zealand. We therefore need to address that issue. Some might want to debate whether those legal experts are correct. I accept them because their expertise is far greater than mine so my amendment simply states: “… for the avoidance of doubt every parent of a child and every person in the place of a parent of the child is justified in using force … for the purpose of ‘time-out’ taking a child to a ‘naughty-mat’ or similar. Such actions do not for the purposes of this Act constitute correction.” 
 This is extremely important because parenting educational organisations inform me that if the bill goes through as it stands making time-out activity for correctional purposes an assault then they cannot in good conscience teach parents the advantages of time out and naughty-mat activity because they would then be encouraging those parents to commit an assault against their children. As the bill stands at the moment those organisations will have to rule out those activities. I think that leaves parents in a most vulnerable position. This is simply bad law and we should take the opportunity to correct it.