Editorial: Bill will not take heat out of smacking

Labour Party MPs doubtless cringed when a bill banning the smacking of children was unveiled late last week. With several pieces of controversial social legislation in their immediate past, they would not have welcomed Green MP Sue Bradford placing another on the election agenda. Especially as the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill will be every bit as divisive as the legislation promoting civil unions and prostitution reform. Which, indeed, is why the Government has persistently postponed tackling it.

Parliament was always scheduled to debate smacking this year. That was the understanding when, in 2003, the Government introduced a two-year public education campaign to persuade parents not to physically discipline their children. At that time, Prime Minister Helen Clark had voiced her support for amending the law, and the Government was probably expecting the campaign would lessen resistance to change. Such, however, is the heat in the issue, and the division within Labour's own ranks, that that schedule has been allowed to fall quietly by the wayside.

Now, however, Parliament will be faced with a stark piece of legislation when it debates Sue Bradford's bill next month. It would take 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 bill's weakness lies in this dogmatism. On one level, it would create the potential for a parent to be prosecuted for tapping a child lightly on the seat of the pants. This will offend those who believe the odd smack does no harm, physically or mentally, and sets appropriate behavioural boundaries. Equally, repealing section 59 would affront those who believe the state has no business telling them how to run their families.

Such is the strength of those sentiments that it appears there is no public clamour to outlaw smacking. That is not to say, however, that the present law is satisfactory. Too often, it has provided a legal defence that was not intended and certainly not warranted, and sponsored a series of errant court decisions, arising in large part from the difficulty of defining what constitutes reasonable force.

What is needed is not the repeal of section 59 but a substantial rewriting of the Crimes Act. The law must be clarified in a manner that does not create a legal minefield for normal, loving parents who may find it necessary to deliver a short but not too severe piece of discipline. The likes, for example, of that smack on the seat of the pants. As the Law Society has suggested, parents, the court and children need law that is clear and descriptive about what is permissible and what is not.

Sue Bradford has indicated that she believes her private member's bill will promote this outcome. But there is no guarantee that it will be observed in the breach; that the police will not invade people's homes to arrest a parent who lightly smacks a child. Therefore, it is unlikely to be the recipient of fulsome public support.

Nor, fundamentally, will it tackle the problem of child abuse. Section 59 is not the reason that children have been mistreated. Nor is it the reason that this country is ranked third worst among OECD nations for child homicide and family violence and abuse. Ensuring that children are raised in an environment where their wellbeing is not at risk requires much more than a ban on smacking. It requires a change in attitude, not the law.

In all likelihood, there will be sufficient parliamentary support for Sue Bradford's bill to go to a select committee for consideration. There, the task will be to formulate a more reasoned and balanced approach: one that allows trivial smacking for disciplinary reasons but leaves no conceivable escape route for parents guilty of serious assault. Only then will the heat go out of smacking.