Maharey Steve: Crimes (Substituted Section 59) Amendment Bill — In Committee 
Maharey Steve: Crimes (Substituted Section 59) Amendment Bill — In Committee 
[Volume:638;Page:8446] 
Hon STEVE MAHAREY (Minister of Education) 
: 
 All members of the House remember the famous statement made by Winston Churchill who said he had been to the House many times he had seen people cry he had seen tears shed but he had never seen anybody change his or her mind in the Chamber. I guess this is one of those debates—unfortunately—where we spend our time railing back and forth across the Chamber at each other thinking hopefully that somebody might change his or her mind. Hopefully we are not all fixed in our minds. I think Maurice Williamson showed in the last speech that he is willing to actually think about the issue and change his mind if he could see his way through it. 
Really what we are talking about is a very very— 
Judith Collins 
: We’ve all thought about the issues. Stop being so patronising! 
Hon STEVE MAHAREY 
: I am not being patronising. I ask the member not to be so stupid. I say that that member Mrs Collins has a mortgage on this whole thing. As far as I have seen she has mortgaged it with patronising comments. 
What I am saying here—[ 
Interruption 
] Are we allowed to say things on our side of the Chamber or is this typical of the way that Mrs Collins’ side debates—by always trying to browbeat people? 
What we are doing here is talking about the very simple issue of whether we ought to do something about section 59. I have argued for the repeal of section 59 ever since I have been in the House. The way I understand section 59 is very simply this. It is part of the Crimes Act and the only reason it kicks in at all is if someone has committed a crime. That person then goes to court with the police prosecuting him or her for using that kind of force on a child—it usually requires a rubber hose a horse whip or something like that. That person ends up in court and then uses a defence that it was reasonable in the circumstances to do that. We all know—as Mr Williamson said—that that is wrong. We do not want that in our legislation. No one should be able to go to court and use a defence for anything like that at all. That is why I have wanted the section repealed all the way along. 
At the present time we have an effort to try to bridge the gap between people who understand that that section should go but who feel a little uncomfortable about what the implications of repeal might mean. So after a whole lot of advice a provision has gone into the legislation for someone who is restraining a child because that child might harm someone or might harm himself or herself—the usual story of a child running along the road or sticking a finger in an electric socket and those kinds of things—or for someone who strikes down a child’s hand. We all know that that is done to save the child or to stop the child from doing something that will harm somebody else. Once again I think we would all agree with that. We want to be able to ensure that parents are comfortable in their ability to do that. 
The one remaining part we are debating here is the question of whether if we remove this section we have somehow created an offence even though there is nothing going into the law. Like Mr Williamson I inherited my children too and on the only times I have physically had to restrain them it usually came down to sitting on them. That was the device we used to use to ensure that we had restrained them. All of us have been in a situation—as in a supermarket a frustrating position for ordinary parents faced with everyday behaviour—where children have done something that might result in parents giving them a light smack and we ask whether that will be criminalised by this bill. 
The argument of course from people who are advocating this change is that no it will not. What are we relying on? We are relying on the normal daily process of the police who use discretion as they do now in all of these kinds of situations with adults. Will they apply this in relation to someone saying that a parent has used a smack on the bottom of a child at a supermarket? We are arguing that the police will not prosecute; they will use their discretion. In a way this whole argument seems to me to boil down to whether people believe this because no one wants violence on children and no one wants people to be able to defend themselves against that. 
Hon Maurice Williamson 
: What about marriage break-ups? 
Hon STEVE MAHAREY 
: What is that? 
Hon Maurice Williamson 
: You could actually get to your spouse by saying to the police that he used a smack— 
Hon STEVE MAHAREY 
: Yes that is what I understand is the issue that probably divides people who are around the middle of the debate. They are asking if we have this change whether they will be safe. Hence we have Mr Borrows’—I think well-meaning—effort to try to write that into the law. The reason I do not like that is because it would lead us down the slippery slope of saying we would then have to try to define what sort of hit could be applied to a child where the hit could be put and how much force could be used. I do not think we could ever make that kind of legislation stick. 
I think we have boiled it down to the fact that we all agree we do not want violence and we do not want a defence against that kind of violence. We want parents to be able to restrain their children and not have to worry about it. We are concerned now only about how the police will interpret this legislation. We are not legislating against smacking children here; there is nothing going into the law. What we are relying on is the removal of something and then there will be a space left that asks how that will be interpreted. That is what it boils down to and I am arguing that we will not see the police become involved in that kind of behaviour.