KEY POINTS:
Green MP Sue Bradford, reflecting on the revisions to her anti-smacking bill, said it remained 100 per cent better than the present law but could create a "fiesta" for lawyers. She was wrong on the first count, but absolutely right on the second. Such, perhaps, was always likely
to be the case, given the pressure on Parliament's justice select committee to fashion a compromise that would satisfy concerns that parents could be criminalised for doing nothing to their children. Its response is a piece of legislation that is no worse than the law which will probably be replaced but is ridden with ambiguity.
Ms Bradford's original bill took the conclusive step of repealing section 59 of the Crimes Act, which allows a parent to use physical force to discipline a child if the force is "reasonable" in the circumstances. The piece of legislation that emerged from the select committee says such force cannot be used for "corrective" purposes. But parents will still be permitted to use reasonable force to exercise necessary parental control. This would include restraining a child to prevent it from harm, or from causing others harm, or to prevent it from engaging in disruptive or offensive behaviour.
The confusion and legal minefield arising from this are readily apparent. The bill clearly envisages force being able to be used for restraint, say in the case of a tantrum. But in many instances, preventing a child from engaging in disruptive behaviour must surely represent force being used for the purpose of correction. A key motive is to dissuade the child from acting the same way again. To correct their behaviour, in other words. The circumstances under which reasonable force is allowed are open to considerable interpretation.
This suggests the new Bradford bill has much in common with the present law. Too often over the past few years, it has provided an unintended and unwarranted legal defence for the use of excessive force against children. That led, in turn, to a series of poor court decisions, arising largely from the difficulty of defining punishment that constituted "reasonable force".
The Law Society noted, quite correctly, that any change should deliver legislation which was clear and descriptive about what was permissible and what was not. There was a need to provide clarity for normal, loving parents who might find it necessary to administer a sharp, albeit not too severe, piece of discipline, but leave no way out for those guilty of serious assault. On those grounds, the revised bill fails.
Until there is legal clarification, some parents will be wary that there are still grounds for prosecution for a light tap on a child's bottom. Others, who think the occasional smack does no harm, physically or mentally, and sets appropriate behavioural boundaries, will have little reason to change their behaviour. There is, however, the welcome possibility that the bill will send a latent message to some parents who cross the line of reasonable force and administer thrashings.
Curbing the mistreatment of children is, in fact, more about changing attitudes than any anti-smacking law. On that basis, the publicity and debate surrounding the passage of Sue Bradford's bill through Parliament early next year could be beneficial.
People will hear a lot about smacking, and, hopefully, ponder other options for disciplining their children. They will also be put on notice that a new law exists. That may be no better, and no worse, than the present legislation, and will re-create a level of legal uncertainty. But in drawing further attention to this country's wretched record in child abuse, it might just foster better parenting.
