Donnelly Brian: Crimes (Substituted Section 59) Amendment Bill — In Committee 
Donnelly Brian: Crimes (Substituted Section 59) Amendment Bill — In Committee 
[Volume:638;Page:8878] 
Hon BRIAN DONNELLY (NZ First) 
: 
 I just want to make the point that I think the previous speaker David Cunliffe has very accurately outlined the events of the past few days and what really occurred. I also have to make the point and agree with him that I believe that the media have got this one wrong. Nevertheless I believe the outcome has been a victory to the astuteness of Helen Clark. That is not to underestimate the role that John Key has played. He played a very important role but I think we need to get the order of importance correct. 
I want to point out a reality of our current law that the Crimes (Substituted Section 59) Amendment Bill rectifies in clause 4. If a parent picks up a child who is causing trouble in a supermarket and puts that child unwillingly into a shopping trolley—which most of us have done in our time—under the current law believe it or not that parent could be had up for assault. The parent would have no defence under section 59 of the principal Act because he or she would not be applying the force by way of correction but would be doing so in order to prevent the child from engaging or continuing to engage in conduct that amounts to a criminal offence. 
Clause 4 of this bill spells out clearly that parents will be able to use reasonable force in order to prevent or minimise harm to the child or another person to prevent children from engaging in criminal behaviour to prevent or minimise engagement in offensive or disruptive behaviour or to perform normal daily tasks such as pulling a jumper over a child’s head or putting a cranky child into a car seat. Under the present law all these actions could be regarded as criminal behaviour. To coin a phrase good parents could be criminalised under the existing law. But they have not been and the reason for hordes of parents not ending up in court is that those behaviours which probably present a breach of the law as it stands is the very same reason why under this legislation as it came back from the Justice and Electoral Committee parents would not have been charged with assault for light smacking. 
There are some important judicial principles that I believe have been largely forgotten in this argument: constabulary discretion the de minimis principle—in other words the law does not deal with trivialities—and the need for the police to consider the public interest when making a decision whether to prosecute. Those principles are fundamental to our judicial system and have been with us for a long long time. Those who up to this point have opposed this bill have conveniently ignored those judicial principles even though they were clearly applied to the current law. 
I would like to read to the Committee from the police’s  
Manual of Best Practice 
 which sets out 17 factors that must be taken into consideration when deciding whether to prosecute—that is the police’s use of their discretion. I would like to draw the Committee’s attention to three of those factors. One factor that they have to take into consideration is the public interest. One of the other factors is the seriousness or triviality of the offence. Finally another factor is the effect on public opinion of a decision not to prosecute. 
I want to compare those rules with the wording of Peter Dunne’s amendment on Supplementary Order Paper 107. It starts: “To avoid doubt”. That spells out that the need for the amendment is to avoid the considerable doubt that has been erroneously built up in the minds of many New Zealanders. It goes on: “it is affirmed”—one can only affirm something that already exists—“that the Police have the discretion not to prosecute complaints against a parent of a child …”. The  
Manual of Best Practice  
already affirms such a discretion; indeed it requires police to use that discretion. The amendment goes on: “… where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.” In other words it is the public-interest principle and the de minimis principle put together. I want members to note the parallels of the amendment with the police manual and with the rules that currently apply but that were conveniently ignored. 
Rodney Hide got this part right. Peter Dunne’s amendment is not required legally but it is hugely important politically. Although I have to point out to John Key that there is a world of difference between an amendment that bans light smacking and one that affirms constabulary discretion that is not to underrate the importance of the role he has played in recent events. That role is certainly not inconsequential because the real purpose of this bill is to reduce violence against children in New Zealand. Such a purpose will be achieved much much more readily when the public see that Parliament is largely united in its support of this legislation. So I take my hat off to John Key over what could have been seen as a U-turn but is in fact an extremely responsible step that will have huge benefits for the future of our nation. I do not believe he was the driving force behind but I believe he was a really critical player in the events that have occurred in the last couple of days. 
Finally I point to a delicious irony. Many of those who have opposed the bill have disagreed with discretion being left to the police. Yet the amendment which broke a partial deadlock affirms such discretion and requires police to utilise it. As I said I congratulate Helen Clark and John Key—Helen Clark for her astuteness in bringing together the amendment to cut the Gordian knot—but I want to particularly make a point of commendation to one Katherine Rich. I believe that in all of this she has probably shown the greatest degree of courage in standing by the principle she believed in regardless of the consequences and the pressure that was brought to bear upon her. Naturally enough I have to say congratulations to Sue Bradford. I was the first person who ever brought a repeal of section 59 bill here. It never came out of the ballot. In some respects I am actually quite glad about that having seen what Sue has had to go through over the last 6 to 9 months so I congratulate her on her bill. 
I guess in the long run I am very very pleased that what has occurred over the last couple of days will mean the bill will pass with a substantial majority which will signal to New Zealanders that Parliament is endeavouring to reduce violence towards young kids. That violence is a national scandal. I congratulate all those who continue to provide support for this legislation.