Donnelly Brian: Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Donnelly Brian: Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill — Second Reading 
[Sitting date: 21 February 2007. Volume:637;Page:7575. Text is incorporated into the Bound Volume.] 
Hon BRIAN DONNELLY (NZ First) 
: 
 I want to make it clear from the outset that the New Zealand First caucus has been divided along the full spectrum regarding this Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill. I started at one extreme and have long held this position—that is for full repeal of section 59 of the Crimes Act. Ron Mark on the other hand started at the other end of the spectrum and in fact it would be fair to say that he has not moved very far from that position. 
It is a hallmark of New Zealand First however that we have always been able to accommodate diversity within our caucus when it comes to conscience issues. However it would be fair to say that diversity around the issue has now congealed over whether we need to state clearly in the law that a simple smack is not illegal—â la the Chester Borrows amendment—or whether full repeal of section 59 would assume that situation. 
In my case I have long been persuaded of the need for full repeal by my experience as a schoolteacher and a principal. I used to use corporal punishment. Teachers were protected by section 59 which allowed teachers—and principals as in my case—to hit children as hard as they could up to six times on the hand or the buttock with a leather strap or a cane. I can assure members that it left considerable bruising. I had grown up in a schooling system that made liberal use of corporal punishment and I simply continued what I had learnt. 
However in 1990 whilst I was on a stint with the Education Review Office the Government removed teachers from the protection of section 59. At the end of that year I took over as principal of an intermediate school. I soon found that the school was rife with violence both physical and verbal. However I could not fall back on my old control mechanisms and I have to say that this really challenged me. 
What I was left with was the need to turn my whole philosophy on its head. We declared the school to be a non-violent territory both verbally and physically; we trained the teachers in non-violent management methods; and we focused on catching the kids when they were good. We still had negative consequences for unacceptable behaviour and we applied them rigorously—indeed as a principal I was considered a martinet. 
The result? The school became a much happier place. Parents sent their children along in increasing numbers because they saw the school as a safe place for their children to go to. Teaching positions became highly sought after so we had the pick of the crop of teachers who were available. 
However about 6 months into the process I had a young lad who was really trying to rark me up. In the past I would have become angry as a precursor to applying corporal punishment. I suddenly realised that this was not happening—I was not becoming angry. In other words as a result of that law change and the knowledge that we had put in place a system that ensured there would be consequences for bad behaviour I had changed and I believe that I had changed for the better. 
I hope therefore that people will understand why I believe in full repeal. It is critical that we establish the mindset in this country that children are unbeatable. Of two things I am sure. Firstly very few New Zealanders want a continuation of the physical punishment of children at the upper level at which section 59 allows an offence—for example the hitting of children with wooden sticks riding crops etc. The second thing is that I know of no one who wishes to criminalise parents who give their child an odd smack. 
It is my view that it is extremely important that parents establish clear boundaries for their children—anything less I believe is a form of child abuse—and that they follow up with appropriate consequences if those boundaries are breached. But parents have at their disposal a whole range of negative and positive consequences that do not require their hitting their children. The mistake we have made has been to meld the two concepts of discipline and hitting when in fact they are extremely separate constructs. The organisation that arguably is the most dependent upon discipline of its members is the armed services yet hitting is not used in the armed services as a means of achievement of discipline—and we must remember that in the past members of the armed services were flogged. 
The arguments made by those opposed to the bill seem to have focused on one particular point which is that parents—or people in the place of parents—who provide the odd smack would automatically be dragged before the courts to be found guilty of assault and would forever have that mark against their name. This belief without a doubt has frightened many many good parents in this country who do not regularly beat their children but may from time to time give them a smack on their hand. It seems to me that if this argument can be refuted then a large proportion of the opposition to full repeal simply melts away. 
A law that has been on our statute book since 1877 creates quite a significant imposition on parents: it states that parents are responsible for ensuring that their children are at school whenever the school is open for instruction. But virtually every parent of a school-age student breaches this law on more than one occasion every year. Yet we do not see hordes of parents being dragged before the courts. The law is a form of declaratory law that is used only when non-attendance is seriously affecting a child’s rights to an education and even then only after significant intervention by a range of agencies. 
Opponents to this law change point to the immutability of the law. They conveniently ignore some significant legal principles most especially the legal principle of de minimis non curat lex which says that the law does not concern itself with trifles. Even if a technical violation of the law has occurred the judge can simply strike out the charge on the grounds that the offence is too trivial. 
Let me explain. At present it is a breach of the law to travel faster than 100 kilometres per hour on the open road. Police would be laughed out of court if they tried to prosecute a motorist for travelling at 100.1 kilometres per hour yet that motorist would have been breaking the law. That is the application of the de minimis principle. 
I will give members an example closer to the issue we are debating. At present it is an assault under the Crimes Act for a teacher to forcibly take a child by the hand and remove him or her for example to a place of time out. Teachers do not have a defence under section 59; Phil Goff removed that defence in 1990. Let me tell members that teachers particularly those in the early childhood and new entrants classes breach this law on almost a daily basis. Yet have we seen even one such case brought to the court in the 16 years since the law for teachers—supposedly in loco parentis—was changed? The answer is no. 
Yet there are those who are still not convinced. They still say the police will be required to bring prosecutions against parents who give the odd smack. I have a letter on file from the Commissioner of Police that clearly states that is not the truth. However for those who are not convinced let me read out some of the 17 factors to be considered when deciding to prosecute—or not—as set out in the 
 New Zealand Police Manual of Best Practice 
. The factors include evidential sufficiency; well it is pretty hard to get that on a smack. They include the public interest—is it in the public interest to prosecute parents for giving their kid an odd smack? They also include the seriousness or triviality of the offence whether the consequences of any conviction would be unduly harsh and oppressive and a number of other things such as the attitude for example of the victims and the prosecution the likely length and expense of a trial the cooperation of the accused and the degree of culpability. If members go through those 17 principles I can assure them that they will see that no policeman would prosecute for a simple smack. 
I finish by making a comment about Chester Borrows’ amendment. For this amendment to become law this bill must pass the reading today. It is therefore utterly hypocritical for those who claim they wish to retain the right to smack to be lobbying for MPs to oppose this second reading. 
Chester Borrows’ amendment which I can say a number of New Zealand First members support would no doubt be an improvement on the current law—of that I have no doubt. However it still sends a message that it is all right to hit children. This is not a message one should be sending to the parents of New Zealand. The message we should be sending is that we understand if from time to time parents smack their children and rather than criminalise them we would prefer to help them to develop a different and more efficacious repertoire of responses to their children’s behaviour. 
Let me make it clear that the children who were recently stabbed by their father would not have been saved by this law change. Neither would Coral Burrows or the Kahui twins. In these cases we are dealing with totally different social phenomena. 
My experience and research heads my conscience to only one conclusion: the need for full repeal of section 59. However I wish to reiterate that my New Zealand First colleagues’ consciences have not necessarily led them to the same conclusion. 
There is one point however that I do wish to finish with. If the public does not wish me to use my conscience on issues such as this I should not be allowed a conscience vote. Thank you Mr Deputy Speaker.