Fairbrother Russell: Crimes (Substituted Section 59) Amendment Bill — In Committee 
Fairbrother Russell: Crimes (Substituted Section 59) Amendment Bill — In Committee 
[Volume:638;Page:8853] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I endorse the comments of the Hon Peter Dunne; the amendment that is now before the Committee is a considerable political achievement. For this amendment to achieve so much agreement is remarkable and a credit to every member who supports it—and I do proudly support the amendment. 
However the political achievement that the amendment reflects should not overshadow the reality that existed before the amendment came forward which is expressed in the wording of clause 4. The wording of clause 4 is reflected on page 5 of the select committee report which discusses the prosecution guidelines. It clearly indicates what is covered in the explanatory note of the proposed amendment that we are now discussing: that is there exists a discretion by the police and it is not wrong for the police to hold that discretion—in fact it is part of everyday life. 
The critics of the bill who have been arguing that the proposed amendment to section 59 will criminalise good parents have chosen to overlook the existing discretion. When that is raised they attack the discretion as meaning that the police should not have so much flexibility and that the law should mean what it says. But of course one cannot consider a reading of any section of the Crimes Act in isolation. The Crimes Act prescribes what a criminal offence is but it can never be read literally because of the many elements that go towards making a crime and the defences that arise. One of the elements includes the important first step of deciding when a prosecution should be brought. 
This amendment of course deals with the police. It does not deal with individual private prosecutions that could be laid but those private prosecutions are still caught by the existing practice of police discretion. Of course the Committee should remember that should the police overstep their discretion or should a private prosecutor overstep his or her discretion then the court has the ultimate sanction of preventing an abuse of its processes. Any trivial matter brought before the court any matter that offends public standards and every matter that wastes the court’s time is within the power of the judge to impose strict sanctions on as to its control and dismissal. 
I raise a word of caution on clause 4 and that concerns the danger that this may open up areas of criminal disclosure into access to police records. Previously in our criminal courts police opinion or speculation was not part of the material that was disclosed to the defence. It would be very very important for a guideline to be established perhaps by precedent that the suggestion here as to the wisdom of bringing forward what may seem to be a trivial complaint does not involve an access into police records matters of opinion matters of speculation and subjective matters. The material to be disclosed to the defence in any prosecution always remains around the witnesses and objective evidence. The danger of clause 4 is that it could stray into the area of allowing defence access to the more subjective operational matters that form part of the police file. I trust that that is not the case and I trust that the courts will be anxious to avoid any creeping access to those important parts of a police prosecution. 
So of course this amendment is very very important because it states the existing law. The importance as the Hon Peter Dunne said is the political achievement of the major parties supported by the important minor parties in moving to realise that the public at large need to be assured that police discretion is an important part of our criminal process one that is usually—in fact nearly always—exercised responsibly and is ultimately overseen by the court. It is good that this is now articulated in this amendment. 
I trust the legislation will work and I trust that it will allay the fears of many people who have bandwagoned on this offence and developed misapprehensions among people who are entitled not to be misled in the way they have. It is not a fact that amending section 59 will criminalise law-abiding parents. It is not a fact that good parents who smack lightly will now face prosecution. That has never been the risk and this amendment to clause 4 which we are now considering makes that crystal clear. If the amendment achieves nothing more than to bring some clarity and accuracy to the debate then it is a considerable achievement indeed.