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 The Act repealed s 59 of the Crimes Act 1961, which had provided that a parent was justified in using reasonable force to correct a child.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.