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Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill - Submission to Justice and Electoral Select Committee [2006] NZHRCSub 1 (1 March 2006)

Last Updated: 27 March 2015

Human Rights Commission

Submission on the

Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill

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Justice and Electoral Select Committee

1 March 2006

Contact person:
Sylvia Bell
Director of Research
Direct dial 09 306 2650

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  1. INTRODUCTION

1.1 The Human Rights Commission ("the Commission") supports the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill 2005 ("the Bill"). Specifically the Commission supports:

[i] repeal of section 59 of the Crimes Act 1961 to remove statutory protection for use of force as parents and guardians; and
[ii] consequential amendments to section 139A of the Education Act 1989 to remove the exemption for guardians in the prohibition on corporal punishment in schools.

1.2 The Commission, pursuant to the Human Rights Act 1993 ("HRA"), has responsibility "to advocate and promote respect for, and understanding and appreciation of, human rights in New Zealand society".[1]

1.3 By human rights the Commission refers to the civil and political, economic, social and cultural rights set out in the Universal Declaration of Human Rights[2] and subsequently codified in United Nations Covenants and Conventions that have become part of customary international law. Together with the eight International Labour Organisations ("ILO") conventions on human rights, they form a robust international human rights legal framework and one that successive New Zealand governments have played an active role in developing. New Zealand has formally committed to respecting these rights.

1.4 For this submission, the Commission focuses on the United Nations Conventions of the Rights of the Child 1989 ("UNCROC").

1.5 The Commission's support for the Bill recognises that:

[iii] children are particularly vulnerable because they are dependent on others, primarily adults, to give effect to their rights and to meet their basic and evolving needs;
[iv] parents, legal guardians and other caregivers have "responsibilities, rights and duties" to provide appropriate direction and guidance and those responsibilities, rights and duties must be respected by the state [Art. 5. UNCROC].

1.6 The submission draws on the extensive research and nationwide consultation undertaken for Human Rights in New Zealand Today: Ngā Tika Tangata o te Motu[3], the first comprehensive assessment of how well human rights are recognised and respected in New Zealand.

1.7 That assessment provided the evidential basis for the New Zealand Action Plan for Human Rights: Mana ki te Tangata which proposed repeal of section 59 of the Crimes Act as one of five priority actions necessary to ensure that every child and young person in New Zealand is safe and violence is not tolerated. In reviewing the status of children's human rights and in determining priorities for action, the Commission worked in partnership with the Children's Commissioner.


  1. A HUMAN RIGHTS APPROACH TO REPEAL OF SECTION 59 OF THE CRIMES ACT 1961

2.1 The Commission's assessment of human rights in New Zealand found that most children and young people "are clothed, sheltered, fed and cared for in loving families and communities".[4]

2.2 However, the evidence also highlighted the extent of abuse and neglect suffered by some children. Amongst the raft of research cited was the UNICEF study on child deaths from maltreatment (1994-1998) which showed that New Zealand rated fifth worst (or in the bottom five) of 27 OECD countries.[5] Human Rights in New Zealand Today: Ngā Tika Tangata o te Motu also noted high rates of intentional and unintentional injury of children in New Zealand.

2.3 In the widespread consultations with children and young people undertaken for the report, they rated safety and freedom from violence highly.

2.4 The New Zealand Action Plan for Human Rights: Mana ki te Tangata subsequently recommended five priority actions to ensure every child and young person in New Zealand is safe and violence is not tolerated. The five priorities for action are:

2.5 In analysing the human rights dimensions of the Crimes (Abolition of Force and a Justification for Child Discipline) Amendment Bill 2005, the Commission has applied as a conceptual framework the six elements of a human rights approach:

2.6 A human rights approach to the development of legislation and policy provides that those groups most directly affected by a policy - especially those that are vulnerable and disenfranchised - have a say in its development and are better able to enjoy rights to which they are entitled under international law. A human rights approach has particular relevance to the Bill since almost all the criteria used to identify vulnerability - voicelessness; dependence on others; subordinate status; exclusion from decision-making - apply to children.[7]


APPLICATION OF A HUMAN RIGHTS APPROACH TO REPEAL OF SECTION 59

Linking decision-making to international human rights standards

2.7 In relation to corporal punishment, certain provisions of the International Covenant on Civil and Political Rights ("ICCPR") apply. Article 26 confirms the notion of equal protection of the law for everyone without discrimination while Article 7 states that "No one shall be subjected to cruel, inhuman or degrading treatment or punishment". Article 7 has been interpreted as extending to "corporal punishment, including excessive chastisement ordered as punishment for crime or as an educative or disciplinary measure".[8]

2.8 The most important treaty relating to children is the United Nations Convention on the Rights of the Child (UNCROC).[9] The Convention on the Rights of the Child contains three articles of direct relevance to a human rights analysis of the repeal of section 59. They are:

"1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."

2.9 The Convention on the Rights of the Child recognises the importance of the family as the primary source of protection and assistance for the child. The Preamble is clear that for full and harmonious development the child "should grow up in a family environment, in an atmosphere of happiness, love and understanding". The Preamble also states that in developing the Convention due account has been taken of "the importance of the traditions and cultural values of people for the protection and harmonious development of the child".

Identification of relevant rights

2.10 Identifying the relevant rights and balancing them where necessary to maximise the respect for all those involved requires recognising the rights of children to be protected from violence, injury and abuse, and the right of parents, or those acting in that role, to provide appropriate direction and guidance. The question which arises from this identification of respective rights is whether, and to what extent, if at all, the child's right to be safe from violence conflicts with the parents rights by constraining the nature of the direction and guidance parents may use.

2.11 There is a considerable body of literature and research findings making the case for and against corporal punishment as a necessary element of parental direction and guidance.[10]

2.12 Children have the same right to respect for their human dignity and physical integrity as other members of society. This includes the right not to be subject to violence under the guise of corporal punishment. Parents have responsibilities and duties, as well as the right, to provide appropriate direction and guidance. Repeal of section 59 would more clearly identify what the society and legislature consider appropriate. It in no way removes the parents' rights, responsibilities or duties; rather it shapes how they may be exercised.

2.13 In determining what constitutes appropriate parental direction and guidance, the Convention on the Rights of the Child is clear about the importance of traditions and cultural values for "the protection and harmonious development of the child". This does not amount, however, to providing a justification on the basis of culture and tradition for actions that would not otherwise be allowed under the terms of the Convention.

2.14 The Commission does not accept that cultural imperatives may justify the administration of corporal punishment.

2.15 The argument that corporal punishment is part of traditional child rearing practices,[11] and therefore accepted as an appropriate form of direction and guidance, has been rejected by many States actively advocating a constructive approach which promotes and encourages the positive aspects of custom and tradition.[12]

2.16 While cultural practice may at times be cited as the reason for the use of excessive discipline, commentators recognise that the violence is frequently more likely to be the result of the stresses of poverty, inadequate education or simply alienation from traditional ways of life.[13]

2.17 New Zealand Courts, too, are unlikely to accept the argument that cultural practices can justify the reasonableness of the force used. In Ausage v Ausage[14] Judge Somerville rejected the idea that culture and religion could influence the application of the defence. Referring to the objectives of UNCROC he stated that one universal standard applied to all families in New Zealand. The interpretation of article 5 of UNCROC did not differ depending on the culture of the child or parent:

"... the degree of force which might be reasonable to apply for the purposes of correction under s59 does not differ according to ethnic background".[15]

Participation in decision-making

2.18 Participation requires that children as well as parents are given an opportunity to be involved in decisions which affect them, not seen merely as the passive recipients of adult protection. Most children have an opinion on issues which affect them, and the right to have those views heard and respected. It follows there is a corresponding obligation on adults and policy makers to listen to, and take those views into account.[16]

2.19 Taking the views of children into account does not mean that they will have the final say (nor would they want to) but they can provide useful insights and make a valid contribution. For example, if most children view corporal punishment with fear and resentment it is difficult to see what benefit is likely to result from its administration, particularly if there are alternative ways of addressing disciplinary problems.[17]

Accountability for actions and decisions

2.20 The concept of accountability is particularly relevant in this context as the defence in section 59 has the potential to protect parents or those in loco parentis from charges of assault. As long as the provision remains on the statute books it can have the effect of shielding people who discipline their children excessively; undermining the ability of children to complain about decisions that adversely affect them, and informing and influencing adult behaviour as a result.

Non-discrimination

2.21 Although physical force against adults is not officially condoned in New Zealand, section 59 permits parents and people who have responsibility for caring for children to use reasonable force for the purpose of discipline. Effectively, children are treated differently from adults. They are discriminated against as they do not receive the same protection from violence as adults.

2.22 The effect of section 59 is that children in New Zealand do not have the equal protection of the law. As the Vice Chair of the UN Committee responsible for administering the Convention of the Rights of the Child said, “If it is not permissible to beat an adult, why should it be permissible to do so to a child?”[18] To deny children protection is to treat them as second class citizens and further compound their vulnerability.

  1. INTERNATIONAL STANDARDS & DOMESTIC LAW

3.1 In New Zealand the rights and freedoms of the New Zealand Bill of Rights Act 1990 (“BORA”) can be subject to such limitations as can be demonstrably justified in a free and democratic society[19]. The right not to be subjected to torture or cruel, degrading or disproportionately severe treatment or punishment, which is section 9 in the BORA, corresponds to Article 7 of the ICCPR (which the UN Human Rights Committee has said includes corporal punishment). It is worth considering whether section 59 would be considered a demonstrable justification today given the international jurisprudence and evolving attitudes to corporal punishment.[20]

Is section 59 a justified limitation?

3.2 The test[21] for deciding whether an infringement of a right is reasonable and justified involves asking whether the objective of the policy is significant and important, and, if this is the case, whether the policy is a significant and proportionate way of achieving the objective. This involves consideration of whether the objective could be achieved in a less intrusive manner.

3.3 The need to ensure that parents are not inappropriately criminalised for reasonably disciplining their child constitutes a significant objective, but the Commission considers that the policy fails the proportionality test as there are ways of achieving this which do not intrude on the child's right to be free of corporal punishment.[22]

Does limiting force to what is "reasonable" provide adequate protection?

3.4 One of the arguments for retaining section 59 is that the reference to force being permissible if it is “reasonable under the circumstances” establishes certain protective criteria. Force must only be for the purposes of correction and never used vindictively or for purposes other than correction.[23]

3.5 The Supreme Court of Canada has described a similar phrase in the Canadian Criminal Code as not “unconstitutionally vague or overbroad” noting that it sets real boundaries and delineates a “risk zone for criminal sanction and avoids discretionary law enforcement”.[24]

3.6 Experience, however, suggests otherwise and the caveat that force must be “reasonable under the circumstances” does not, in fact, provide adequate protection. Inevitably, an element of subjectivity enters into what parents consider to be the permissible limits of their authority. The defence - and the varying interpretations of what is “reasonable” - has meant that parents have been acquitted of disciplining their children even when they have used belts, hosepipes and pieces of wood to do so.[25]

3.7 The Commission considers that if the section is repealed, wholesale prosecution of parents, or people acting as such, when disciplining their children will not automatically follow. For example, the tortious defence of necessity can at times be used to justify conduct which would otherwise constitute interference with the person of another. The defence which has been described as “a mixture of charity, the maintenance of the public good and self protection”, excuses harm done to a person who is not personally threatening to the plaintiff.[26]

  1. CONCLUSION

Children are the bearers of human rights from the moment of their birth, and they are entitled to physical integrity and human dignity in the same way as adults. Children are human beings that are simply smaller and more fragile than adults.[27]

4.1 Children are completely dependent on adults for protection and survival. Because they are so dependent on others to give effect to their rights, there is a duty on society to ensure those rights are respected. While physical force against adults is not officially condoned, section 59 of the Crimes Act permits parents, or people acting as such, to use reasonable force to discipline children. As long as it remains on the statute books, therefore, section 59 sanctions the use of force against one of the most defenceless and vulnerable groups in society.

4.2 In 2003 the UNICEF Innocenti Research Centre published a report on child maltreatment deaths in the developed world[28]. Five countries – including New Zealand - are singled out as having levels of child maltreatment deaths four to six times higher than the average of other leading countries. Although banning the use of corporal punishment may not seem a major deterrent in protecting children against death from maltreatment, countries that have enacted legislation outlawing corporal punishment[29] are convinced that it is a significant step in promoting the message that violence toward children is unacceptable and that “a culture of non-violence against children can and should be built from the ground up”.[30]

4.3 New Zealand’s international commitments require it to do all that it can to deter violence against children and create conditions to protect them from violence, including in the home. International bodies which have responsibility for monitoring the observance of children’s rights have consistently reiterated that legislation that allows a defence for physically chastising children should be repealed.

4.4 As the New Zealand Action Plan for Human Rights makes clear, legal reform is not enough of itself. Parents need to be informed about childrearing practices that do not involve corporal punishment. Positive non-violent, methods of child rearing need to be promoted by the Government so that children’s rights are understood and respected. A number of relevant programmes already exist in New Zealand. Some are government provided.[31] Others are run by NGOs such as Plunket, by early childhood services and other educational institutions, churches and iwi programmes. By building on these initiatives, parents and caregivers can be supported by the whole community in their crucial childrearing role.

The Commission supports the Bill and the repeal of section 59 together with the provision of information and services for parents and other caregivers which promote positive, non-violent methods of child rearing.



[1] S.5.(1)(a) Human Rights Act 1993
[2] United Nations (1948, December). Universal Declaration of Human Rights, General Assembly resolution 217ACII: Geneva: UN General Assembly
[3] Human Rights Commission (2004). Human Rights in New Zealand Today / Ngā Tika Tangata o te Motu. Auckland
[4] Human Rights Commission (2004), p65
[5] Ibid, p59
[6] Human Rights Commission (2005 New Zealand Action Plan for Human Rights: Mana ki te Tangata, p11. Auckland
[7] International Council on Human Rights Policy: Enhancing Access to Human Rights [2004] at 11
[8] UN Human Rights Committee General Comment 20: HRI/GEN/1/Rev.4. p108
[9] New Zealand ratified UNCROC in 1993
[10] For a description of both positions see N Taylor “Physical Punishment of Children: International Legal Developments” NZ Family Law Journal 2005 5(1) at 14. R Adhar & J Allan “Taking Smacking Seriously: The Case for Retaining the Legality of Parental Smacking in New Zealand” [2001] NZ Law Review 30. B Hafen Former Vice-Chancellor and Law Professor at Brigham Young University ABC Radio National The Law Report Transcript May 12 1998 www.abc.net.au/rn/talks
[11] Regional Office for Save the Children Sweden Ending Corporal Punishment of Children in South Africa [2005]
[12] For a description of some of the conceptual difficulties and a discussion on whether removing the right to physically discipline children is discriminatory and an attempt to impose Eurocentric values see S Harris-Short "International Human Rights Law: Imperialist, Inept and Ineffective? Cultural Relativism and the UN Convention on the Rights of the Child" Human Rights Quarterly 25.1 (2005) at 130
[13] See for example, the Save the Children report (ibid. at 23); F Le Tagaloa "The Rights of the Samoan Child" in Advocating for Children A Smith, M Gollop, K Marshall & K Nairn (eds) [2000] University of Otago Press
[14] [1988] NZFLR 72
[15] Ibid. at 79
[16] K Landgren “ The Protective Environment: Development Support for Child Protection” Human Rights Quarterly 27.1 (2005) 214 at 236
[17] Insights – Children and Young People speak out about Family Discipline Save the Children, September 2005 at 2. Research indicates that physical punishment is the disciplinary method most often used in families. Children viewed physical discipline as ineffective and it engendered resentment and fear. They had suggestions about alternative, effective responses most of which involved effective communication achieved through reducing parental anger and listening before responding to a child’s behaviour.
[18] Concluding Statement, General Discussion on Children’s Rights in the Family, International Year of the Family October 1994 (CRC/C/SR176 para 46)
[19] S.5 of BORA. The Expert Committees allow States a “margin of discretion” (similar to s.5 BORA) in how they chose to implement a right. When the United Kingdom claimed that punishment within the family was a private matter and an integral part of the rights and responsibilities of parents and therefore within Article 5, the UNCROC Committee stated that, “A way should be found of striking the balance between the responsibilities of the parents and the rights and evolving capacities of the child that was implied in Article 5 of the Convention. There was no place for corporal punishment within the margin of discretion accorded in Article 5 to parents in the exercise of their responsibilities” Summary Record of the 205th meeting , Comm. on the Rts. of the Child, U.N.Doc,CRC/C/SR.205 (1995)
[20] Adhar & Allan (ibid. fn 6) consider that “Section 5 seems to us to be a[n] immovable roadblock ... [to repeal].”
[21] The test is taken from Moonen v Film and Literature Board of Review [2000] 2NZLR 9 (CA)
[22] See C Breen “The Corporal Punishment of Children in New Zealand: The Case for Abolition” [2002] NZ Law Review 359 at 391
[23] R v Accused [1994] DCR 883. See also cases cited in Ahdar & Allan ibid
[24] Canadian Foundation for Children, Youth and the Law v Canada (Attorney-General) [2004] 1 S.C.R. 76, 2004 SCC 4
[25] The inconsistencies in the application of s.59 are outlined by J Hancock in The application of Section 59 of the Crimes Act in the New Zealand Courts available on www.youthlaw.co.nz/print.aspx?_z=128
[26] Todd et al. The Law of Torts in New Zealand, Brookers [2005] at 22.6.01
[27] J Ennew & D Plateau How to research the physical and emotional punishment of children, Bangkok International Save the Children Alliance (2004) cited in “Ending Corporal Punishment of Children in South Africa” ibid. at fn 28
[28] A League Table of Child Maltreatment Deaths in Rich Nations: Innocenti Report Card, Issue No.5 [2003] available at http://www.unicef-icdc.org/publicationa/pdf/repcard5e.pdf
[29] Sweden, Finland, Denmark, Austria, Cyprus, Latvia, Croatia, Germany, Iceland, Italy, Romania, Ukraine, Bulgaria and Hungary have all banned corporal punishment.
[30] Ibid. fn 33 at 3
[31] For example, Strategies with Kids – Information for Parents.

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