Fairbrother Russell: Crimes (Substituted Section 59) Amendment Bill — In Committee 
Fairbrother Russell: Crimes (Substituted Section 59) Amendment Bill — In Committee 
[Volume:637;Page:8010] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I rise at this stage of the Committee debate to speak on the commencement date of the Crimes (Substituted Section 59) Amendment Bill. In the 5 minutes available to me there are three points I want to touch upon: first the role that criminal law plays in our society; second the way the debate is being conducted and whether a referendum would advance the issue very much further; and third by way of anecdote the pressing need to move ahead with this legislation. 
First of all though I will deal with the way this debate has been conducted in the media so far. It ignores totally many of the submissions that were made to the Justice and Electoral Committee subcommittee that heard them. There were submissions from a wide variety of very well-respected people who work intensively with children and families including paediatricians doctors clergy churches and non-governmental organisations who were all in support of the outright repeal of section 59. Yet in the media we get the conflict the overstatement the hype and the rhetoric. What we get in the media was echoed today in a speech made by Nick Smith from the National Party. The media totally overlooks that at present it is a crime to smack a child. The smacking of a child is at least the crime of assault and has been a crime for over two centuries. [ 
Interruption 
] The member will get his chance to bark later. Section 59 merely provides a defence should the matter get to court and the court decides there is enough evidence to convict. Only then does section 59 come into play. So to say that Sue Bradford’s bill will criminalise normal adults is totally misleading and misguided and when said by some people is dishonest. 
It is a crime to smack a child. What we are discussing here is the defence that is available if the crime is made out in the first place. The defence that is made available is one that has been evolving over time. In 1893 when the defence was first put on our statute book it included the right of ship captains to punish their crew the right of teachers to punish their pupils and the right of parents to punish their children. 
The CHAIRPERSON (Ann Hartley) 
: The member needs to come back to the commencement date. 
RUSSELL FAIRBROTHER 
: When we look at the need to introduce this bill as soon as possible it is important to consider two things. Criminal law sets criminal standards but the enforcement of criminal law relates to the community standards prevailing at the time. Crimes on our statute book are sometimes enforced and in another period they are not. We see that with cannabis. We saw it previously with sodomy and homosexuality. We see it with other offences that are currently on our statute book which most of us here would not know existed. They are not enforced because social standards have moved on. The debate of time is a mere delaying tactic because the public will not be better informed. We do not have time. 
I conclude my speech on this clause with an anecdote. I am probably the only person in this Chamber—for my sins—who has defended people who have invoked section 59 by way of defence. In my experience section 59 has been invoked by way of defence by people who have habitually hit their children with spades lumps of wood leather straps and the hand. Section 59 has been invoked by adults in the belief that it will be a defence to a charge of murder or manslaughter. I will tell members about an incident when I was called to a very high-profile fatality of a child who received notoriety in his death. The child was bitterly beaten. I took instructions on the night the child was admitted to hospital before he died and before the police became involved. I spoke to the family whom I did not know and the male adult said to me that yes he had hit the child. I gave him the only appropriate advice that could have been taken then. At the police station the father of this man—I had not known him before either—said he thought he had caused it to happen. I asked him what he meant. This was a man who worked in a responsible position. Everyone would have admired his work ethic and family commitment. 
The CHAIRPERSON (Ann Hartley) 
: The member needs to come back to the commencement date. 
RUSSELL FAIRBROTHER 
: He said he had grown up in an environment of extreme physical punishment and it just got bigger and bigger in his family. Now is the time to make this legislation pass.