Turner Judy: Crimes (Substituted Section 59) Amendment Bill — Third Reading 
Turner Judy: Crimes (Substituted Section 59) Amendment Bill — Third Reading 
[Volume:639;Page:9294] 
JUDY TURNER (Deputy Leader—United Future) 
: 
 I stand on my own behalf to speak to this third reading. I represent one of the only parties in this House that is exercising a true conscience vote on this bill. It is a decision that has today cost us dearly. Some of those supporting this amendment to the Crimes Act would suggest that this is all about sending a message not about upping conviction rates. I accept that due to the fact that both old parties are whipping their caucuses this new section 59 will tonight become law. 
The bill neither bans nor allows smacking as such. In fact it does not even mention smacking. It is about the use of force. Throughout the Crimes Act any degree of force and even the threat to use force is an assault. The current section 59 states that parents are justified in using force by way of correction towards their children as long as that force is reasonable in the circumstances. This has historically created two tests for juries. Firstly they have had to determine whether the force is reasonable which has been a fairly objective decision usually determined by the evidence of physical harm. The second test a jury had to weigh up is whether the force is being used for the purpose of correction and this has always been a much more subjective test requiring a jury to determine what was in the mind of the parent at the time of the incident. 
This new amendment to section 59 does not change the first test. In fact that is exactly what Chester Borrows attempted to do. But it does change the second test and establishes that correction is no longer a lawful purpose. Reasonable force can be used to prevent harmful behaviour as long as parents are not intending to correct the child. Parents can use reasonable force to place a child in his or her room for time out to protect siblings from aggressive behaviour but they must not do so with the intention of punishing the child for that behaviour. Parents will need to make sure they are thinking with legal precision. 
Whatever side of the issue members are on it does not take long to figure out that this legislation will be a legal nightmare. However this legislation is an amendment to the Crimes Act and breaches of this Act rightly demand a strong response from law enforcers. Law enforcement is surely as important as the law itself. One of the reasons we scrutinise our police so intensely on matters of corruption or unbecoming behaviour is that as law enforcers they are agents of civil society and we rely on them to keep lawlessness at bay. We are in trouble if they act in a biased or reckless way. Police conduct and protocols must reflect a high and consistent standard and the court system acts as a check that the law is both applied and upheld to the highest standard. The Police Complaints Authority also holds them to account for the way they treat the public while in the line of duty. 
Most members of this House—including myself—supported an amendment a fortnight ago to make explicit the discretion we want the New Zealand police to use when dealing with cases where parents are enforcing boundaries with their children. We want it to be clear that those charged with enforcing this amendment do so appropriately. However no explicit discretion is articulated in the amendment bill for Child Youth and Family despite the fact that it exercises profound statutory powers in regard to children young people and their families if it believes that children or young people are at risk of harm. 
Shortly after I entered this House in 2002 I visited a non-governmental organisation provider to better acquaint myself with its work. The visit was for me a defining moment. At the end of my time there its lead social worker asked whether he could get my help with a case the organisation had. It concerned a couple who had had their six children removed by Child Youth and Family and had turned to this reputable organisation for help. It was quickly determined that the mother was suffering from moderate depression and that the housework had got away on her. The children had been removed on grounds of neglect; there was no suggestion of any kind of physical abuse. 
A team was sent round to clean up the house and wrap-round services were put in place to support the mother and work towards her recovery. This was successfully completed in a reasonably quick time. Then the agency went as advocates to Child Youth and Family to request the return of the six children offering assurances that ongoing support and monitoring were guaranteed for this family. Two years later when I was visiting the centre these children were still in care separated from each other as siblings and some of their foster parents were applying for permanent care of the children in their charge. I could not believe that this could actually happen in Aotearoa New Zealand. 
It was even more disturbing that highly competent professionals could not persuade the local office of Child Youth and Family to review the decision or supply an explanation for its unwillingness to do so. The staff at the agency I was visiting felt like they had hit a brick wall. That brick wall explains why I cannot support the third reading of this bill. It is not that I object to the statutory powers that Child Youth and Family has. Nor do I mind it acting with speed if its staff believe that children are at risk. But when a competent agency cannot get a situation reconsidered then how do distraught parents make a calm and rational appeal to a department that keeps no record does not collate any complaints does not have a robust complaints procedure in place at present and certainly does not have anything with any independence? There is no advocacy service available to families who want to appeal a decision being made on their behalf. 
The staff at Child Youth and Family are the people whether we like to admit it or not who will be largely investigating claims of breaches of this provision and enforcing and intervening in those situations. I cannot with my hand on heart tell New Zealand parents that they are currently safe with the amendment to this legislation and therefore I cannot support this third reading.