"Light smacking" and discretion

Ekins, Richard (2009) "Light smacking" and discretion. New Zealand Law Journal, 11 427-429.

Author Ekins, Richard
Title "Light smacking" and discretion
Journal name New Zealand Law Journal   Check publisher's open access policy
ISSN 0028-8373
Publication date 2009-12
Sub-type Article (original research)
Open Access Status
Volume 11
Start page 427
End page 429
Total pages 3
Place of publication Wellington, New Zealand
Publisher Butterworths of New Zealand
Language eng
Formatted abstract
In May 2007, Parliament enacted the Crimes (Substituted Section 59) Amendment Act 2007. The Act repealed s 59 of the Crimes Act 1961, which had provided that a parent was justified in using reasonable force to correct a child. The Act introduced a new s 59, which justified a parent in using reasonable force towards a child for certain purposes, but not for correction. The new section also included the following subsection:

(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

This subsection was central to the political compromise that secured the Bill’s passage. The present government has asserted that what Parliament intended in enacting this subsection was to ensure that good parents were not criminalised for light smacking. While I take no view here on whether Parliament should have criminalised light smacking, I argue that this understanding of what Parliament intended is false. I argue further that notwithstanding the government’s assertions, it may well be unlawful for the Police to presume that parents who lightly smack their children should not be prosecuted. The proposed s 59(4) may have been central to the compromise that secured the Bill’s passage, but it is incapable of bearing the weight that has been placed on it. 
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status Non-UQ

Document type: Journal Article
Sub-type: Article (original research)
Collection: TC Beirne School of Law Publications
Version Filter Type
Citation counts: Google Scholar Search Google Scholar
Created: Wed, 16 Jul 2014, 16:15:37 EST by Carmen Buttery on behalf of T.C. Beirne School of Law