Donnelly Brian: Crimes (Substituted Section 59) Amendment Bill — In Committee 
Donnelly Brian: Crimes (Substituted Section 59) Amendment Bill — In Committee 
[Volume:638;Page:8456] 
Hon BRIAN DONNELLY (NZ First) 
: 
 People in the Committee have already heard of my experience of going from a situation of being a principal who used corporal punishment when we were protected under section 59 of the Crimes Act to a situation where we had no protections and had to find things out. 
When I came to Parliament in 1996 I was really concerned about what we could do about reducing violence towards children. We had a bit of time because at that stage we were in negotiations with both Labour and National. I wanted to raise this concern in my maiden speech and I wanted to do some research. I thought I would go to the Commissioner for Children and see whether I could get him to give a bit of a hand on this one. I knew we had been taken away from using corporal punishment in schools but I did not know there was a thing called section 59. 
I talked the matter over with a guy by the name of Laurie O’Reilly who was the Commissioner for Children at the time. I have to say he was a man’s man. He was a prop and had played rugby for Canterbury. The guy was certainly no wimp. We looked at all the different issues but finally he said to me: “We will never reduce violence against children in this country until we repeal section 59.” That is the statement he made. I came back and mulled over it. I became a Minister and did not make my maiden speech until February. I mentioned the matter to one of the other Ministers from National who is still a member of Parliament who told me that it was probably right that we did need to get rid of section 59 but that whatever I did I should not mention it in my maiden speech. He said that I was now a member of the executive and that we did not want to go down that track because of the political implications. 
Since that time I have been mulling over just how we could do it and as we had the tragedies of people like James Whakaruru and “Lillybing” the words of Laurie O’Reilly kept coming back to haunt me. I had looked at the section and I was very clear: I wanted the law framed in such a way that parents who gave their children a smack were not criminalised. I still absolutely believe in that. If anyone asked me whether I believe parents should be criminalised the answer is absolutely no. But I looked at all the different ways it might possibly be done and at what was happening in New South Wales where the law tried to define where and how one could hit a child. I saw that law was an enormous mess. 
In the end in the year 2000 I spoke to the New Zealand First convention and said that I would bring in a law to repeal section 59 but that I also wanted amendments to the care of children legislation which was going through at the time that would actually define what people were able to do in order to protect them. In about 2002—just after the “Lillybing” tragedy—I introduced a bill into the House to repeal section 59 but I could not find my way around that problem. I withdrew the bill in 2002 because I did not believe we had the support for it. 
 I looked at some work by Dr Shane Reti who said that 92 percent of people he researched in the Whangarei area did not believe that parents should have the right to smack their kids around the head or with an implement. We drew up laws for that which went in the name of Barbara Stewart. But every time I attempted to try to get around this particular issue I came back to the problems associated with Chester Borrows’ amendment. I have already said that I will not be voting for Chester Borrows’ amendment but if it goes through and the Crimes (Substituted Section 59) Amendment Bill is left in I will actually vote for the bill because I think that it will be better than the situation as it stands at the moment. 
In the end I came to the conclusion that the only way that we could actually protect parents from the sort of vagaries of being charged for a minor smack etc. was to use the legal principles under which our legal system operates. I am talking about the de minimis non curat lex rule—the law does not concern itself with trifles. 
Rodney Hide made a good point when he said that we will not know what will happen until we actually see the legislation in practice. But I go back to the experience with regard to schoolteachers. People will remember that they were removed from the defence in section 59. Therefore any teacher who picks up a child and moves him or her to time out to sit on the mat etc. is breaking the law by way of committing an assault. In fact I saw Gerry Brownlee assault Don Brash in this Chamber but he was not taken to court. And if he had been taken to court it would have been thrown out by the police. [ 
Interruption 
] I will not make mention of that but certainly I would not be running down to court in those circumstances—and nobody has run down to court about teachers.