Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20 - Evidence for June 4, 2008 - Evening meeting
OTTAWA, Wednesday, June 4, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill S-209, An Act to amend the Criminal Code (protection of
children), met this day at 6:31 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
The Chair: Honourable senators, this meeting of the Standing Senate
Committee on Legal and Constitutional Affairs is continuing the committee's
study of Bill S-209, An Act to amend the Criminal Code (protection of children),
and we have the great pleasure of having with us by video conference, from
Auckland, New Zealand, Mr. John Hancock, Senior Solicitor, YouthLaw.
Mr. Hancock, welcome. We are very glad you could take the time to be with us.
If you have an opening statement, we would love to hear it and then we will ask
John Hancock, Senior Solicitor, YouthLaw: It is a privilege to talk to
you and address you on this important issue. I have not prepared an opening
statement per se, but I will give a bit of background to my work and the sorts
of work that I have done in this area.
I am the senior solicitor at YouthLaw, which is a community law centre for
children and young people that provides legal services for people under the age
of 25 across New Zealand. I am also involved with the non-government reporting
on New Zealand's compliance with the UN Convention on the Rights of the Child.
That provides a bit of background to some of the impetus to the changes to
section 59 of the Crimes Act, the equivalent section to your section 43. I was
part of the NGO delegation that went to Geneva in 2003 that presented
submissions to the UN Committee on the Rights of the Child.
The UN committee made a strong recommendation about section 59 in New
Zealand. They recommended that it be repealed or it be amended. This was the
statement of the UN committee about New Zealand's section 59 of the Crimes Act:
The committee is deeply concerned that despite a review of legislation,
the state party has still not amended section 59 of the Crimes Act, which
allows parents to use reasonable force to discipline their children. While
welcoming the government's public education campaign to promote positive
nonviolent forms of discipline within the home, the committee emphasizes
that the convention requires the protection of children from all forms of
violence, which includes corporal punishment in the family and which should
be accompanied by awareness raising campaigns on the law and on children's
right to protection.
That provided a basis, if you like, or at least a context for the amendment
bill that was introduced a year or two later, although there had been a private
member's bill introduced to the House by Brian Donnelly MP a few years earlier,
that I do not think got to committee stage. The corporal punishment in schools
in New Zealand was banned in 1990 in an amendment to the Education Act. That is
some of the historical context leading to New Zealand's repeal of section 59.
As part of the work I was doing in this area I did a study on some of the
case law and some of the legal cases dealing with child discipline issues, which
were in regard to section 59. To summarize: essentially, what became apparent
from looking at the case law was that section 59 in New Zealand was not
compatible with the concepts of family law and family law jurisdiction
generally. Within the context of the Domestic Violence Act, which is the
legislative basis for protection orders in New Zealand, there was a disconnect
between the two acts.
In one case it was found that even though a child could be protected from an
abusive parent by way of a protection order, section 59 of our Crimes Act could
still be raised as a defence if that parent breached that protection order by
using physical discipline against their child.
In addition, the Care of Children Act, which came into force in 2004, amended
our guardianship laws to provide an explicit statement about protecting children
from violence in the home. Therefore the jurisprudential and legislative basis
in our family jurisdiction was incompatible with section 59 and had moved on
from that more antiquated law. So there was definitely momentum behind the need
for a law change. There were a number of cases that were reported in the
newspapers. These were jury trials where the defendants were being acquitted for
using what one would normally consider to be severe uses of physical discipline
on the children. One case involved someone being acquitted for beating a child
with a hose pipe; another involved an acquittal by a jury when a person used a
piece of wood to physically discipline their child.
There were these cases that were being heard by juries in which the defence
was being successful in raising the section 59 argument that reasonable force
was used. I believe from the legislature's point of view that that was not an
Where it became controversial was around the parameters of whether the
defence should be fully repealed or whether it should be given some prescribed
limitations. That is where many of the arguments were.
As you might be aware, there has been a lot of controversy in New Zealand
around the repeal of section 59. There is currently a referendum being promoted,
that almost had enough signatures needed to present to the House. I do not know
if it has been formally presented yet, but there has been a strong movement
against the amendment. After much negotiation, the amendment was passed by an
overwhelming majority of the House. The law commission and others were integral
in drafting a compromise section 59. This, whilst it outlawed the use of force
for the purpose of correction, placed a number of provisos whereby a parent of a
child or someone acting in loco parentis would be justified in using
force or reasonable force in a number of circumstances. These would include, for
example, preventing or minimizing harm to the child; preventing a child from
engaging or continuing to engage in conduct that amounts to a criminal offence;
preventing a child from engaging or continuing to engage in events of disruptive
behaviour; or when performing the normal daily tasks that are incidental to good
care and parenting. The new subsection 4 set out the discretion of the police
not to prosecute, if they felt the offence was to be so inconsequential that
there was no public interest in proceeding with a prosecution. That was the
amended section that was passed by a vote of 114-6 in the New Zealand
Parliament. Its future is secure politically, given the overwhelming majority
with which it was passed. However, it is still a controversial issue, given that
a citizen's initiated referendum is still on the table which has created a
certain amount of political momentum for certain new political parties that have
Overall, it is interesting to see the development of this law and to see how
the courts have approached it. Prior to the amendment, the courts have found
section 59 difficult to reconcile with the principles of New Zealand family law.
In criminal courts, the juries tend to have a lower threshold for "reasonable
force'' than judges. A judge alone, either at a trial or on appeal, would have a
high threshold that someone would have to cross to convince a judge that the
force was reasonable. The jury trials showed that, depending on the make up of
the jury at the time, it was easier to get severe forms of physical discipline
passing through as "reasonable force.'' Underpinning this is the human rights
issue for children about having an equal right to protection of the law;
protection from assault.
That is an ad hoc opening statement, but I hope it gives you some sort of
The Chair: It certainly does. If that was an ad hoc, ad-libbed
statement, you have my congratulations. It was an interesting history of how you
got to where you are. We are grateful to you. I am sure you can understand that
in our proceedings studying the bill before us now, the New Zealand case comes
up again and again as something that we must study. That is what we are turning
our attention to at this time.
Senator Andreychuk: Thank you, Mr. Hancock, for appearing before us by
videoconference. I have a few questions by way of information and clarification.
Is the citizens' initiative like a referendum? Is that in the law? How did
that come about, or was it a policy?
Mr. Hancock: Under the Citizens' Initiated Referendum Act, if an
organization or petitioner can collect 300,000 signatures in New Zealand, they
can then proceed to Parliament with a non-binding citizens' initiated
referendum. If the referendum proceeds to Parliament and goes through all the
various procedural requirements of the House, the petitioners can put a question
to the voters in the next election. When they initially presented the petition
to Parliament, my understanding is that it was rejected. There was a recount and
they found a number of signatures had been duplicated and there were a few bogus
signatures, so it did not quite get to the 300,000 threshold. The group that put
together the referendum has gone back to get the required number. There are
certain time frames that they must adhere to but if they present the petition
within the required time frame, then that question will be put to voters.
The initial question was to be whether or not a slap should be tantamount to
a criminal action or should be allowed to criminalize. That is not the exact
wording but it was to that effect. However, it may have been amended or slightly
toned down since then from being so prescriptive about the use of force.
Some of the people involved with the group that put this petition together
have formed a political party that will be standing at the next election. It was
a highly politicized issue in New Zealand. From my perspective, it was sad to
see that happen. It was inevitable because it drew the issue away from the
position of children, who are obviously the subject of this law and whose
welfare is at stake, ultimately. It became more of an issue about parental
rights and obligations than about children's rights or children's rights to
protection from violence.
New Zealand does not have a good track record of late in terms of child
abuse. When you talk to Dr. Hassall and Ms. Noonan later, they will be able to
give you a more detailed run down of those sorts of issues. In New Zealand, I am
sorry to say, a lot of children have died from injuries inflicted in the
domestic context. I think that part of changing behaviours and attitudes is
looking at the way that children are children are treated in the home, but it is
difficult because many parents use light physical discipline from time to time.
No one wants to see those parents criminalized. That was an issue for everyone.
It was not the crucial issue in terms of the way this matter was sold to the
public or brought before the public; unfortunately, it became less about how we
should be valuing our children and rights of children to be free from harm. It
became more about, "Will I be criminalized? I am not a criminal because I might
have administered a light slap to my child at a certain time.'' It was
inevitable but unfortunate that the debates got clouded from the rights of the
child to protection from harm and also trying to produce a climate in our
community where violence against children or the use of force generally is not
The Chair: Mr. Hancock, this is fascinating but we only have half an
hour or so left in our session with you. There are some more questions that
senators want to put to you, so I will arbitrarily cut off that answer here and
go back to Senator Andreychuk for her next question.
Senator Andreychuk: Are you aware whether Australia has a similar
section 59? I understand that they have not had recently the kind of debate that
New Zealand has had.
Mr. Hancock: I believe it varies from state to state in Australia, but
I do not have an exact understanding of it. My understanding is that their law
is similar to what ours was except that there may be variances from state to
state in the way that it is applied. When we were looking at section 59, the New
South Wales example was used.
Senator Andreychuk: Perhaps that is what I am looking for. New South
Wales made some changes, but my understanding is that the rest of Australia
still recognizes corporal punishment as justifiable.
Mr. Hancock: My understanding is that of the common law countries, New
Zealand is the only one to have removed the defence.
Senator Andreychuk: Of the common law countries, you have removed it.
However, I have spoken to some of your parliamentarians and I understand the
climate in which this was finally discussed in Parliament. I believe it was one
of the coalition members in the government that introduced the bill. It received
some debate and when the parliamentarians started to examine it, they started to
think there should be an exemption to support families for whatever reasons.
Hence, you ended up with this list of exceptions, if I can call it that, to what
you started with.
Mr. Hancock: Yes.
Senator Andreychuk: In that debate, all parliamentarians seemed to
have been involved.
Mr. Hancock: Yes. It was a private member's bill. The government
sponsored it through to the Select Committee stage. The main debate was around
whether the defence should be removed entirely. Another argument suggested by
the opposition was that a limitation of "trifling and transitory'' force would
be a way of defining reasonableness. Whereas those opposed to this wanted to
remove the defence of reasonable force altogether. That was the main delineation
in the way the issue was debated at the committee.
Senator Andreychuk: Those were the outer limits, but I understand in
the actual debate suggestions were given from all sides how to change the
Mr. Hancock: Yes, a number of suggestions and wordings considered from
straight repeal through to the "trifling and transitory'' definition of
reasonable force. In the end, we kept the current wording that I understand was
drafted mainly by Sir Geoffrey Palmer. He is at the Law Commission in New
The most powerful point regarding the new wording is that it removes the use
of force for the purpose of correction. That was passed overwhelmingly and it
was the difference between where the two sides were positioned during
consideration in the Select Committee. It brought them together to decide to
remove the use of force for the purpose of correction, but ensure that police
discretion was spelled out.
The police have discretion anyway. However, police discretion is spelled out
in the legislation. The way I look at it, you are essentially legislating the
de minimus principle to an extent with subsection 4. Then subsection 1 looks
like a code for the common law defence of necessity. That would be a situation
where your child runs across the road, you need to grab them to prevent them
from being harmed by oncoming traffic and it prevents the possible
criminalization of their conduct.
Senator Oliver: Thank you for your excellent overview that traced the
history of what happened to section 59 and how the courts and the legislators in
a vote of 114-6 came up with this new law that you have.
One of the things that interested me in your remarks was you telling us how
the courts are having difficulty grappling with this. You said a case tried by a
judge alone would be different from one tried by a judge and jury. I would be
interested to hear the types of questions that would be put to a jury. Would
they be a question like whether one found the amount of force used reasonable or
would a typical jury question be whether the force was justified to protect the
child from danger or prevent damage to property.
That is some of the language in your newly amended law there. Are those the
kinds of questions that the jury would have to determine and decide upon?
Mr. Hancock: The cases that I have looked at were in relation to the
previous section 59. I am not aware of the new defence being raised in the
courts since the amendment has occurred. There was a case reported recently, but
that was using the old defence where the information was presented in court
prior to the amendment coming in.
Looking at the old cases, the judge was directing the jury around the wording
of section 59 at the time. All that dealt with the reasonableness of the use of
force and providing some of the case law or common law rules and reasoning that
had been built up in relation to what could constitute reasonable force in those
This is a personal observation, but looking at the different outcomes it
would appear that perhaps given a jury may have a number of different people
with differing attitudes about what constitutes acceptable force. There was a
greater likelihood that someone would be acquitted when using an implement
against their child to discipline them, whereas I have not seen that happen in
any of the judge alone cases or family court cases.
The family court was looking at section 59 not as defence to a criminal
charge, but as to whether force used was reasonable in the context of a
protection order application, a custody dispute or a child protection action by
a child protection agency.
Basically, I think that juries in certain cases were being directed by judges
on how to apply reasonable force, but their interpretation of reasonableness was
not consistent. Therefore, some juries were acquitting far more severe forms of
child discipline. Others were not. Some were convicting people for lighter forms
of physical discipline. There was a lack of consistent outcomes.
However, that is another issue.
Senator Oliver: That is fairly consistent with jury verdicts.
I have another question. I am interested in the word "correction.'' You have
told us that they took that word out. There are many other exceptions, but no
discipline was permitted for purposes of correction. What is wrong with the use
of the word "correction'' and what were their concerns with that particular
Mr. Hancock: It is correction in relation to disciplining a child or
correcting their behaviour. That is, using force for disciplinary purposes to
correct behaviour. The interesting thing about section 59 was that it was the
only situation in which force can be reasonably used. It was the only defence
that was there.
The new section 59 removes that. No common law now justifies the use of force
for correcting a child's behaviour. Therefore, it is about disciplining for the
purpose of correction.
It was interesting that in the case law prior to the amendment, the judges
were directing that for the defence to succeed, it needed to be for the purpose
of correction. It could not be out of anger. If a child was struck by a parent
as a result of the parent's anger, not related to any need to correct the child
for any misbehaviour, then the defence could not be raised. It was not
applicable. It was very much prescribed to those situations where a parent was
using it specifically for the purpose of correcting the child's behaviour.
Senator Oliver: If a child was in a school and the child was acting
out badly, and it appeared to the teacher and the others in the room that this
child was going to take a chair and start breaking windows or something, would
the teacher be allowed to touch the child and try to restrain the child
physically or would that be caught by your new section 59?
Mr. Hancock: Since 1990, section 59 has not applied in schools. For 15
years, there has been no section 59 defence in schools in New Zealand. However,
there are common law defences of necessity that would apply — for example, where
someone may harm themselves and some force is needed to intervene to prevent
that person from doing so.
It is a difficult issue for schools. They have to be very careful about the
policies and procedures that they have in place for dealing with those sorts of
incidents. I have been involved in cases myself. My organization does a lot of
work in relation to legal issues in schools, and it can become an issue where a
student may have a behavioural problem or is prone to outbursts and damaging
properties or others. It is very difficult.
However, there are best practice ways of being able to deal with those
situations. Most schools that are well organized will have procedures in place
that have been verified by the ministry for dealing with a situation like that,
using procedures for restraint that are appropriate.
One of the situations for schools, too, in a situation that is occurring is
that, depending on the child, they may have to call the police. It depends what
the circumstances are, but it still is an issue and a difficult and vexing one
for schools. However, there are legal defences related to applying force in a
situation like that.
Senator Di Nino: You bring back a lot of wonderful memories of a visit
I had to New Zealand too long ago. I must come back soon.
We have had some testimony that included a great deal of discussion on your
section 59 and the changes that you made. Part of that was the three-month
review of police activity, which you are probably familiar with. Are you
familiar with the report of police deputy commissioner Pope on the three-month
activity following the enactment of section 59?
Mr. Hancock: I have not read it, no.
Senator Di Nino: That was going to be my question.
Mr. Hancock: I have the police guidelines for administering it but I
have not read that report.
Senator Di Nino: I was interested in your interpretation of this
particular police report, which was issued three months after the enactment of
section 59. I will come at it differently.
You have had now an experience of a number of months under this new section.
What is your impression, and what is the general impression of New Zealanders,
as to the effect that this may or may not have had on this issue?
Mr. Hancock: My general impression is that people basically are
getting on with things. I think because of the political consensus under which
the law passed, it gave it a certain amount of political legitimacy, if you
It is interesting because there is a referendum still in the pipeline that
keeps the issue at the forefront of the media and in the public eye. However, I
think there is a little fatigue around trying to go back to where the law was.
To my knowledge, there has not been any attempt to judicially review the police
for the use of their discretion to date. My impression is that the public has
essentially accepted the amendments as getting on with things. We are sort of
moving on from that debate.
We had a very fractious debate in New Zealand about it. It was a divisive
debate but I think it was one that needed to be had. Generally, the public
accepts where the law is now and it is ready to move on. That is where I see it.
Others would have a different perspective, obviously, but that is my view.
Senator Di Nino: In the short period of time that it has been enacted,
is the law achieving its objective? Has it resulted in improvement of the
perceived need to have these changes?
Mr. Hancock: My understanding is that there has not been a flurry of
prosecutions occurring. One of the concerns people had was that if the defence
was removed, suddenly you would have all these parents being put before the
courts for assaulting their children. That has not happened. My understanding is
that it is having at least an initial positive impact in terms of our child
protection statistics. These are referrals to child, youth and family services.
The longer term outcomes will be the most important to look at; how the
statistics change in a decade and in a generation, whether or not there is
significant change. It is still fairly new.
My understanding is that what happened in Sweden is that they experienced,
over a generation, quite a shift in some of the outcomes. In New Zealand, I
think you would have to give it time to see whether there is a dramatic shift in
the decline of child abuse statistics, for example.
The main thing is that there has not been a rush of prosecutions and that was
the main concern everyone was worried about when the debate was at its most
vociferous — the good parent being criminalized, being brought before the
courts. That has not happened yet and I do not think it will happen.
Senator Di Nino: My last question deals with the testimony given to us
by a senior officer of our national police force, the RCMP. You may be familiar
with them. The opinion of this chief superintendent was that in our case, if we
removed the section that this legislation would accomplish if it is passed,
there could very well be confusion on the part of the police officers
investigating accusations of — I do not want to use the word "abuse'' —
mistreatment of children. He felt that it would create a problem for the
officers without the help of this particular provision or clause that we are
Have the police forces in New Zealand proclaimed any opinion on the issue and
on the changes that you made? What were their observations?
Mr. Hancock: In New Zealand, there has been a policy in place — the
police family violence policy — which states that if offenders are responsible
for family violence, the offenders shall, except in exceptional circumstances,
be arrested. In any cases where action other than an arrest is contemplated, the
supervisor must be consulted. Because of the concerns about rates of domestic
violence in New Zealand, the police had been given a directive, prior to the
amendment, to take family violence cases very seriously.
Looking at the case law and the cases that go before the courts, even prior
to the amendment coming in, you had a range of different situations where the
police used their discretion to prosecute despite the fact that the defence was
in place. Obviously, the police would always prosecute where someone had struck
their child with an implement and caused injury. There were situations where the
police used their discretion prior to the amendment to prosecute where a lighter
form of physical discipline had been used also. It came down to the use of
police discretion in the circumstances to prosecute, and I think that was always
a critical issue in the debate.
Crown law office prosecution guidelines prior to the amendment also took into
account the public interest, and that always has to be a determination when
police arrest and prosecutors proceed with prosecuting a person in court. The
public interest requires, and this is the definition here, where the seriousness
or conversely the triviality of the nature of the offence determines whether the
conduct really warrants the intervention of the criminal law, so that de
minimis principle comes into play. That was in existence. I think that was
one of the arguments raised during the debate in public and the media. There has
always been an issue about whether or not the police in a particular situation
should be prosecuting.
As I said, there have been a number of different cases prior to the amendment
where you had people being convicted for a light smacking, if you like, and
others being acquitted for more severe forms of physical discipline. As your
colleague stated, that is part of the outcomes of jury trials. You will get
inconsistent outcomes. The interesting thing is this is an outcome based on the
jury determining what reasonableness is. Rather than the jury making a decision
about whether or not someone did something, or based on the facts, it is a
subjective determination by a jury on what constitutes reasonable force. It is a
slightly different question for a jury to consider than whether or not certain
evidence had been adduced to find someone guilty of a particular charge beyond
the required standard of proof. One of the issues about the reasonableness is
that it leads to these inconsistent outcomes.
Coming back one step from that, you have the police then dealing with a
particular situation at hand, determining whether or not they should prosecute,
or at least lay charges, and whether or not that conduct was such to warrant the
intervention of the criminal law. That has always been the case. The amendments
have set that out in the statute so it is very clear.
The Chair: Thank you very much. I am sorry to keep cutting you off,
Mr. Hancock, but we are limited in time, and the clock is ticking.
Senator Merchant: Thank you for your presentation. There are many
players here. We have heard from the police, the lawyers and individuals.
However, there are also the children. How do we engage them, and how do we get
their voice heard here? What did you do in New Zealand to bring in that element?
Mr. Hancock: That is a good question. There are various ways of
getting children's views or having children participate in the debate. When the
issue was at its most controversial, children's voices were largely missing from
the debate in New Zealand, to be quite honest, but that is not to say that
organizations, groups and the government did not seek children's views on this.
In 2002, the government released a document called The Agenda for Children
that set out a number of action areas for trying to improve the situation of
children in New Zealand. Part of putting that together was a very wide ranging
survey and consultation process with children. Roughly 8,000 children were
surveyed, a significant number. The vast majority of those children said that
they opposed or did not agree with being hit, or with hitting or being struck at
home. That is noted in the documents that accompanied The Agenda for Children.
That was one basis of consultation.
My organization did some surveys as well. We have an outreach worker who
would go to the youth expos in the main centres in New Zealand every year, so
one year we surveyed many young people, high school age kids, 13 to 17, for
their views on it. They were fairly overwhelming in their opposition to being
subject to corporal punishment.
Another process I was involved with was the UN Secretary-General's study on
violence against children, and a delegation from New Zealand was sent to the
east Asia part of that. The delegation included three child delegates as well.
That was not in the domestic context but it provided an international context
for consultation with children from around the region on the subject of
corporate punishment, not just at home but in a number of different sectors. In
many countries, children face much graver problems, such as poverty, than New
Zealand children, but there was a real consensus coming up from the children in
that forum about being protected from all forms of violence at all times.
I found that the views of children and young people fairly overwhelming,
unequivocal almost, in terms of wanting to be free from physical punishment. In
terms of the actual debate and the public debate, their voices were not really
There was a lot of other work going on below in different areas. If you
wanted to get a mandate from children and young people for repealing that, you
could probably find one. Although not a particularly scientific way of gathering
it, you can look at a number of different means of obtaining child's views. I
think there was a good basis for saying children and young people in New Zealand
would generally support the repeal. That is my view, anyway.
Senator Merchant: We are dealing with children here a little younger,
two to thirteen. You said these children were a little older.
The UN has denounced Canada as a country that has ratified the Convention on
the Rights of the Child and has not amended its legislation. Were you guided in
what you have done by your obligation? Had you ratified the UN convention, and
was this part of why you did what you did?
Mr. Hancock: I would say that that certainly formed a part of it. I do
not know whether the legislators would necessarily agree. We have seen over the
past few years a number of our laws that were not compliant with the UN
convention coming further into compliance, so it could be seen as part of that.
The legislature might view it slightly differently, of course. They might say
that part of it was ensuring that we adhere to our international obligations
under the convention, but I am sure that they would also say that it was much
more than that and a decision by the legislature based on what they thought was
in the best interests of New Zealand children. I do not think that the UN
convention or the committee's decision was necessarily the driving factor. It is
one of the factors.
The Chair: I will ask you a couple of questions but we do not have
time for you to answer them. I would, therefore, ask you to send a very short
email — not a legal brief, but a four-line email — in response, I would be very
You may already have covered this and, if you did, I missed it: What is the
age limit at which this new section 59 ceases to apply? Is it 12, 16, 18 or
whatever in New Zealand law?
The second question has to do with one of the exceptions. It has always
puzzled me but it is always dangerous to draw conclusions about another
country's legal system. One of the exceptions is that force is permissible if it
is for the purpose of preventing the child from engaging or continuing to engage
in "offensive behaviour.''
That is surprising to a Canadian ear. The question I am driven to ask is: Is
this is a recognized concept already established in New Zealand law or have the
courts already established what constitutes "offensive behaviour''? Is it
something that is already part and parcel of the system or is it something that
the parliamentarians, in their political wisdom, decided would be good to put
into the law? I am not asking you to make political comments but simply wish to
have your input on this definition.
On behalf of the committee, I want to thank you for your testimony. It has
been very helpful. You are our first chance to speak with someone who has lived
this and been through it. It has been very useful to us.
From all of us here to you and to all the people in Auckland who made this
conference work, we express our thanks.
Mr. Hancock: Thank you for the opportunity. If the committee would
find it useful, I can email the papers I have written, analyzing the case law.
The Chair: Yes. That would be helpful.
Mr. Hancock: I will email a copy of that, as well.
The Chair: We have the great pleasure of welcoming two witnesses from
New Zealand, Ms. Rosslyn Noonan, Chief Commissioner, New Zealand Human Rights
Commission; and Dr. Ian Hassall, former New Zealand Commissioner for Children,
who will speak as an individual. Both witnesses are in Wellington, where it is
I would ask that you present your opening remarks, after which we will move
to questions from senators.
Dr. Ian Hassall, Former New Zealand Commissioner for Children, as an
individual: As you will have seen from my submission, the change in New
Zealand's law came about in two parts: The first was in 1989 when the right of
teachers to strike children in schools was removed and, in another piece of
legislation, was prohibited. The second was last year, when the defence
available to parents who were prosecuted for striking children was removed. In
addition to the removal of that right or that defence, there was a prohibition
on the use of force for the purposes of correction.
New Zealand's section 59 of the Crimes Act 1961 was very similar to Canada's
section 43 of the Criminal Code. We demolished section 59 in two parts. I
understand that the aim of your Bill S-209 is to alter it in one sweep, so to
Both the 1989 change and the 2007 change to the Crimes Act were accompanied
by public controversy. There was more controversy recently in relation to
parental correction of children than there was in relation to correction by
teachers. Ms. Noonan, in addition to her present role, has been much involved in
the teaching sector in the past so she will speak with you about what happened
there. I am very familiar with what happened in relation to New Zealand's law
change last year and what has happened subsequently. I suppose the main message
I have is that Canada, if it follows the experience of New Zealand and about 23
other countries, has nothing to fear from this law change.
The change rested on and continues to rest on the rights of children to have
the same physical integrity and to be free from violence and the threat of
violence, as do adults to be free from violence or the threat of violence. Of
course, a great many arguments have been raised. I wanted to speak to one that I
read in the transcript of the testimony given a fortnight ago when Bill S-209
was introduced. It seemed to be most important, as it was for us as well. It
pertained to what we would do about the argument raised by many people that
restraining children would not be permitted if section 59 in our case or section
43 in your case were removed. We spent a great deal of time trying to figure out
how we would get around that issue. In some respects, logically and rationally,
setting the law aside, it was a non-issue. Obviously, holding a child to stop
her from running across the road or holding a child to stop her from putting
something into an electric light socket was not the same thing as striking a
child. They were quite different.
How to ensure that in law this was made clear was a problem that we came up
against. You might say that the long- standing legal principle of necessity,
which of course you have also discussed, covered the point. However, many people
thought that this was not so. For that reason, we have introduced into our law
specific clauses that cover the situation of restraining a child, either for her
own protection, for the protection of others, or in the ordinary course of
Some people said after we had done that that this would not change the law at
all, that restraint or those things would be interpreted in the same way as
correction had been interpreted in the past. Whether or not that happens depends
a bit on what the judges have to say when these matters come to court. However,
to make it quite clear that we were talking about something quite different — we
were making a real change and not just a cosmetic change — it was specified in
the law that force by way of correction was prohibited.
When you change a law in this way, it is necessary to have built in braces;
to have both the removal of the ability to use force by way of correction and
also to specifically prohibit it.
That is essentially what I had to say. I would be very happy to respond to
any questions you might ask.
The Chair: Ms. Noonan, would you care to make your statement?
Rosslyn Noonan, Chief Commissioner, New Zealand Human Rights Commission:
I will be brief by way of introduction so we can use the time for discussion.
I wanted to highlight the fact that the New Zealand Human Rights Commission
has had the issue of physical punishment, corporal punishment of children on the
agenda almost since its inception in 1978, so there is a body of work that has
been undertaken by the commission, right up until the repeal of section 59 of
the Crimes Act.
I also wanted to highlight that a major review undertaken by the commission
that was published in 2004 on how well human rights are recognized and respected
in New Zealand identified children and young people as the group most at risk of
human rights abuses in the New Zealand context.
In terms of the repeal of section 59 of the Crimes Act, which the commission
strongly supported, I have provided you with our summary analysis because, at
the end of the day, whatever the technicalities, you cannot get away from the
fundamental human rights issue: Is there any human rights justification for
treating children and young people differently from adults in terms of the
ability of adults to hit or punish physically? It is such a fundamental question
that, in the commission's view, and in the submission we made, it is important
to consider all of the rights, responsibilities and duties involved, including
those of parents. The commission also had a considerable discussion around
issues relating to culture and tradition, which of course the Convention on the
Rights of the Child highlights in its preamble.
None of them adds up to a justification for being able to hit children and
not adults. None of the logic prevails. The experience in New Zealand has been
that the earlier removal of the ability of early childhood centres and schools
to hit children as punishment or correction, did not prove to be a great
difficulty. Both of the major teachers' and principals' organizations indeed
were part of a long campaign to remove corporal punishment from the law. There
were a handful of objections from traditionalists, but since the removal of
corporal punishment, with the exception of a couple of Christian schools who
believe for religious ideological reasons that they should be able to hit
children, there have been no other attempts to bring corporal punishment back
into the school. No call for it from teachers or principals at all. Indeed, I
think they would be horrified at the suggestion.
There is often a lot of concern at these sorts of changes but over a
relatively short time they become accepted and we wonder, with curiosity, how we
ever allowed them to occur in the first place.
At that point, I will stop and leave you to ask questions or raise issues.
The Chair: Thank you very much, indeed, and, of course, we do have
Senator Oliver: Thank you both for your excellent presentations. At
the root of your presentation, Ms. Noonan, is the fact that children are
entitled to the same human rights protections as adults. I agree with you
entirely. In your paper you say your submission recognizes that the need to
ensure parents are not inappropriately criminalized for reasonably disciplining
their children constitutes a significant objective, but consider that there are
ways of achieving this that do not intrude on the child's right to be free of
corporal punishment and also that enshrines their human rights in the same way
that adult human rights are enshrined and protected.
What are those ways of achieving this, if it is not by any type of touching
Ms. Noonan: The commission always accepted the ability of parents to
reasonably constrain or restrain their children in dangerous situations, in
situations where they might have been about to harm themselves or others. We
would not have been suggesting prosecution in those cases, and the doctrine of
necessity would have applied. As Dr. Hassall has said, for the avoidance of
doubt, the commission is comfortable with the wording that was finally achieved
in the New Zealand law change. It believes that that wording that spells out
that restraint is clearly still a possibility where required is a practical and
pragmatic solution to something that was causing a high level of anxiety in the
wider community and amongst decent and caring parents.
Senator Oliver: What are the parameters of reasonable restraint on the
part of a parent?
Ms. Noonan: The New Zealand legislation reads:
(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct
that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in
offensive or disruptive behaviour . . .
It also reads:
(d) performing the normal daily tasks that are incidental to good care
It goes on in (2) to read:
Nothing in subsection (1) or in any rule of common law justifies the use
of force for the purpose of correction.
Obviously, we will have to await case law to be able to say exactly in any
particular set of circumstances what that means. New Zealand police, New Zealand
officials and the wider New Zealand community will interpret that in a way that
puts the interests of the child as the primary consideration.
Clearly, having loving, caring, concerned parents who make sure you do not
harm yourself or others is in the primary interest of the child. We do not see
any likelihood of arbitrary criminalization of parents through this law change.
I perhaps should ask Dr. Hassall to comment also in terms of experience.
Dr. Hassall: As I said in my opening statement, there is a perceived
difficulty in distinguishing between restraint and correction. I say
"perceived'' advisedly because I think ordinary people do know the difference
between holding a child and striking a child.
Unfortunately, even after the law was passed and after all the discussion we
had, there were still some journalists who seemed to be unable to conceive of a
child being restrained without that child being struck.
To me, that is a matter of education rather than anything else. Being able to
hold a child so that she will not run out on to the road is not at all the same
as striking a child in order to intimidate her into not running out on to the
road. Those are different things, but for some people they were being
interpreted as the same thing.
I hope that is helpful. I am not sure that I have answered your question.
Senator Oliver: That was very helpful. Your law came into effect in
2007, and this is now June of 2008. Have there been any cases interpreting the
"reasonable restraint'' at all that you could tell us about? Any cases before
the courts or otherwise?
Dr. Hassall: No. There are a couple of cases pending before the
courts. There have been no cases that have been heard before the courts to date.
The Chair: I turn now to Senator Hervieux-Payette, who is the sponsor
of this bill.
Senator Hervieux-Payette: Thank you to Ms. Noonan and Dr. Hassall. I
may not have your accent — I have a French one — so I hope we will be able to
understand each other.
I will ask two or three questions, to which either or both of you can answer.
The rights of parents from different cultural communities would apply in this
case. The law would apply differently for different cultural backgrounds. Did
you look at this aspect?
Dr. Hassall: Yes, we do have different communities in New Zealand. Of
course, the indigenous people here are the Maori people. We have taken the
position that each community has had to argue this whole issue through in their
own way, but in the end we have a law which covers all communities. It is not a
matter of imposing on other communities what the majority says. It is a matter
of everyone coming to a position.
One of the interesting things that occurred some time before the law was
passed was that the Maori Party that represents many Maori in our Parliament
unanimously came to the conclusion that this was a good law change for their
people. There has been considerable support among Maori people for this, before
and since the law was passed.
In other communities there has been the same kind of discussion and general
support or arguments against it. That has been our position.
Ms. Noonan: The Human Rights Commission addressed this directly in the
submission we provided to you. Our view is clear that the Convention on the
Rights of the Child, and indeed other documents, protect diverse traditions and
cultures. That does not mean that, first, traditions and cultures are static.
Second, it does not mean the assertion that it is a traditional practice to hit
children, in the process of balancing rights, overrides the right of the child
to be free from physical assault of any kind, just as an adult is.
The work that has been done in New Zealand included the Maori communities,
who, as Dr. Hassall pointed out, came out in numbers after very significant
debates within their communities in support of repeal of the legislation. It
also included the Pacific people's communities in New Zealand. We found that the
stresses of poverty, inadequate education, and often alienation from traditional
ways of life, are much more likely to be behind what, in some instances, really
has been a sort of post-colonial development of hitting children.
The mere assertion that it is tradition and culture needs to be looked at,
but discussions within those communities themselves — which certainly went on in
New Zealand — should be encouraged and supported.
Senator Hervieux-Payette: When you went ahead with the new
legislation, was there any implementation mechanism? Was there an educational
campaign for the general public or social services for the police force so that
people were aware of the new way of treating these individuals who were not
adults? At the same time, was there was a gesture on the part of the government
to ensure that it was meant for everyone but, at the same time, that there are
other ways of correcting a child other than hitting?
Dr. Hassall: The answer to that is complicated. Some years ago, there
was a push to get the government to repeal section 59 of the Crimes Act. The
government felt at the time that the New Zealand public were not ready for that,
so they established a program of parent education called SKIP. That became
popular and reached a majority of parents around the country. It was delivered
by a range of different service organizations to parents. That has done
something towards providing parents with alternatives to striking children.
As far as the police go, they had a rather equivocal view of repeal right up
until just before the law was passed. Their reason was that some of them at
least saw it as something of an imposition on them to have to make decisions
which they felt were best made by the law and by the courts.
However, I think they embraced the new law on the grounds that it was in fact
going to leave them in no better or worse a position than they were in relation
to adults who, daily, have to decide whether they will proceed with some action
when a complaint is raised or somebody is seen to be behaving in a way which
might be against the law.
When the police knew that the law was to be passed they issued instructions
to the force around the country. I think that has been pretty clear. There seems
to have been no big problem in the event among the police in administering this
As far as public education on the law itself and its meaning, regrettably,
there has been no official public education in New Zealand. I think perhaps
officialdom were a little wary, given all of the controversy there had been, of
stirring it up again by issuing statements about what the law meant and so on.
It may be that they thought because it had been so well publicized with the
controversy, that everyone understood what it meant. I think there is some
justification for that view.
We have had a survey done since showing that a large proportion of the
population have come to the view, or at least there has been a trend in the
direction of fewer people striking children and of people understanding what the
law means. There will be more monitoring. There has been a requirement placed in
the law that the CEO of the Ministry of Justice should monitor the impact of the
law, and there is to be a review two years from the law's introduction.
Ms. Noonan: I would add that for a number of years after corporal
punishment was prohibited in schools, there was quite a focus in the
professional development programs for teachers on positive, constructive and
alternative methods for discipline in schools. I think that has been a
continuing element of professional development, as well as a considerable focus
in the initial teacher training programs.
Senator Andreychuk: Welcome to the panelists. We have read many of
your reports in another committee I work on, the Human Rights Committee. I pass
on greetings from Senator Pearson, whom you both know, as I understand.
We have had a major Supreme Court decision that severely curtailed the use of
corporal punishment and certainly prohibited it for children under the age of 2
and over the age of 12. Did you have any similar Supreme Court decision before
you repealed section 59?
Ms. Noonan: No.
Senator Andreychuk: Following that up, it seems to me that the first
initial reaction was to abolish section 59, but Parliament then reinstituted a
number of sections.
Are you aware whether the courts have ruled on the difference between keeping
section 59 and what you have replaced it with? Has the court determined what the
difference between the two is?
Ms. Noonan: No. It is too early, as Dr. Hassall said. There are two
cases pending in the lower courts, but there certainly has not been a sufficient
passage of time for any of them to work their way through.
Senator Andreychuk: I was interested when you said there had been a
significant debate or discussion in the Maori community. That took place before
the repeal of section 59. If I understand, therefore, there was a consultation
and awareness of your Aboriginal community, the Maori community especially, as
to what the repeal was and how it might affect them, and then you received
feedback from them. Is that correct?
Dr. Hassall: Yes, in all sorts of ways. I have mentioned the Maori
Party, which is the political representation in our Parliament. There were
meetings up and down the country in all sorts of forums and venues. I went to
some of them. There was a very keen awareness in the Maori community of what the
implications of the law change would be.
Ms. Noonan: A number of the big tribes actually took a position on the
Senator Andreychuk: Would it be fair to say they were involved in the
process so that they could translate it to families within their communities?
Dr. Hassall: Yes.
Ms. Noonan: Yes.
Senator Andreychuk: Finally, you have made the distinction between
striking a child and holding a child, saying it is inappropriate to strike a
child, while perhaps there are instances of where holding a child would be
acceptable. I am inclined to agree with you, but you have used the example of a
child running into the street.
Which category would you put a case of, say, a 15-year-old girl who has
consistently run away from home? She has a boyfriend under a restraining order
he or his family is not abiding by and is a very well known user of hard drugs,
which he is now susceptible to and using. If her father drags her away from this
home by physically pulling her away, putting her into his truck and driving
away, would that be striking or holding, in your opinion?
Dr. Hassall: I am not a judge. Fortunately, I am not a judge. Cases
like that are very difficult to determine.
At the time that I was commissioner for children, I had many such cases come
my way where I was appealed to by parents in just the sort of situation you are
talking about. When that happens, I do not think striking, restraining or any
particular thing will really be the solution to that problem. You can say that,
whatever went on before led up to that kind of behaviour on both the parental
and young person's side.
By the time you are dealing with a truculent 15-year-old, it is too late to
be talking about how you will prevent this kind of behaviour. I just think that
is very complex and difficult. Fortunately, most 15-year-olds grow out of their
oppositional behaviour and survive. That is an amazing thing, but it does
I have four children of my own who are now adults, and they have each gone
through that turbulent stage when any parent is in a quandary as to what on
earth to do about them. I do not know it is a matter for the courts so much as a
matter for how human societies deal with their young.
Senator Andreychuk: If I were to say the fact that he dragged her
away, was able to calm her down and she actually changed her behaviour but the
father was charged with assault, am I reading into your answer that it would
have been better left as an issue to resolve in different ways? Or should there
have been interventions into the family earlier by some other method?
Dr. Hassall: I appreciate what you are saying, and we do have to look
at instances and the practicalities. However, it is really very hard to know
what would have been the best thing to do or, indeed, whether I or anyone else
have a right to intervene in this case.
I guess you need to apply the same rules of human rights to that situation as
to any other. That would be my broad approach to it.
Ms. Noonan: Our position is that there will still have to be a
case-by-case assessment, which the police will do at the level that they
intervene and decide whether to prosecute and which the courts will then decide.
Under the current New Zealand provisions, there will be a defence in that case.
Whether the courts accept it will depend on the facts of the case and the impact
of the actions, the affect they had on the young person.
It is not possible to say categorically what the outcome should be, but
generally, the commission's view about many things is that criminalization is
the end of the process and not the best automatic reaction in any given
Senator Andreychuk: Finally, for clarification, what you have just
said is as a result of the fact that your current law has the exceptions in it,
so you are saying they might be charged but there might be a defence; is that
Ms. Noonan: That would be the case under the current law. I believe
that in the case you describe, there may well have been a defence even if
section 59 had been repealed and the ability to use restraint had not been
explicitly provided for.
Senator Andreychuk: Under New Zealand law.
Senator Merchant: I have benefited a lot from your comments because
you have had some experience and you are the first witnesses we have had from
New Zealand who have described something that you are living. This is very
helpful to us.
I am not sure if you mentioned whether, in the last year, attacks against
children have continued in the same numbers or whether there has been a
decrease. Have you said anything about that?
Second, someone suggested that in a family breakdown situation, one parent or
the other can use the children as pawns and can accuse one spouse of having
abused a child to benefit themselves. Have you had experience along those lines?
Dr. Hassall: As far as the numbers go, we cannot be sure. The numbers
are supposed to be monitored by the Ministry of Justice. They are also monitored
by the police. We had a report from the police some months after the law came
into effect, and they said that there had been no increase in the numbers of
prosecutions for assault by adults on children. Our child protection service
also said that they had had no increase in the numbers of children who came to
their attention, as a result of the law. Having said that, as in every country,
the numbers of children referred to the child protection service is very
volatile. It goes up and down according to publicity and so on.
The short answer is that the law has had no discernible effect on the
numbers. That is both for good and bad. We might have expected that there would
have been perhaps a modest increase because what was formerly permitted was no
longer permitted, but that has not been the case. I think that has happened in
every country where it has been introduced, which is interesting.
In regard to your second question, I think that is a likely occurrence, but
it happens now anyway. It is commonplace throughout the world that some parents
who have been involved in a hostile marriage breakup will use accusations of
harm against children to get at one another. I do not believe that the law
change in New Zealand has made any difference to that. Again, it is regrettable,
but it is a fact of human nature.
Senator Di Nino: I have a couple of points for clarification.
Ms. Noonan, in response to Senator Andreychuk's question dealing with
consultation with the Aboriginal communities, I believe I am quoting you
correctly when you said some of the tribes took positions. Is that a correct
Ms. Noonan: Yes.
Senator Di Nino: Could you share with us what those positions were,
and if they are all the same or different.
Ms. Noonan: I know of no tribal group that discussed the issue and
came out against the repeal, but three of the large and relatively
well-organized tribal groupings came out in support of the legislation in one
form or another after internal discussion.
Senator Di Nino: Thank you for that clarification. That is useful.
Dr. Hassall, you referred to a police report. We were given today, as part of
testimony by one of our other witnesses, a document called Three-month review
of Police activity following the enactment of the Crimes (Substituted section
59) Amendment Act 2007. Is that report you were talking about?
Dr. Hassall: Yes.
Senator Di Nino: I asked the previous witness and he was not aware of
the report. Could you share some of the other findings of this report with us?
Your brief comment, was that basically what you believed to be the result of
Dr. Hassall: Yes, it is. I do not have the report in front of me at
the moment. I did look at it some time ago. What I had to say to the committee
was essentially what I gained from the report.
Senator Di Nino: That is fair enough. We can look at it. I just want
to make sure it is the same report you were referring to so we can look at it to
further educate ourselves.
My last question deals with the testimony we received from a chief
superintendent of the RCMP, our national police force, who expressed concern
about the elimination of the provision that we are talking about in our
legislation. It may be different in yours, but I wondered if you could share
with us whether you think the same concerns apply in New Zealand.
His concern for his officers was that without the assistance of this
provision of the act, which would give some guidance, there might be uncertainty
and clouding about the discretion that the police officers may have when they
are confronted with these issues during an investigation.
Did you, during your hearings, hear anything similar from police forces in
New Zealand or subsequent to the changes of the legislation?
Dr. Hassall: That was a significant point of discussion in New
Zealand. I believe it has been resolved, and it has been resolved in a number of
ways. One is that it has been made clear that the existing police instructions
cover the point so that there are a set of instructions which do not relate
specifically to this law but which are the background instructions that
determine police discretion. Police are to exercise their discretion in a number
of ways, in a number of instances, and that is quite clear. I think, in the end,
the police did not believe that the change in the law really added or subtracted
anything from their ordinary day-to-day exercise of their duties. That seems to
have been the case. We have not had any concern expressed, that I know of, by
the police about the operation of this law. They simply got on with it.
They did express misgivings; they did contribute to the discussion; they did
ensure to their own satisfaction that these issues were covered.
Senator Di Nino: Were some of the changes that were made or the new
provisions that were put in there with the repeal of section 59 inserted
partially as a result of the concerns expressed by the police as well as others?
Dr. Hassall: I do not believe so. You are probably referring to the
piece that says here, 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 the child, where the offence is considered to be so inconsequential
that there is no public interest in proceeding with a prosecution.
Now, that subsection was inserted, in my view, primarily not to reassure the
police but to reassure members of the public who had been, I think, misled into
believing that there would be criminalization, that there would be widespread
prosecution of parents and so on. I do not think the police believed for a
minute that this was going to be the case.
Apart from the police instructions that I have referred to already, of course
there is the de minimis principle in law which also applies here, and I
think that in some respects that subsection 4 is just a restatement of that.
Senator Di Nino: Thank you. That was useful.
The Chair: I would like to pursue one more area myself with you, if I
may, before we let you go with our heartfelt thanks.
You described what sounds like very thorough and rational, although I am sure
they were greatly emotional moments, but a very impressive process of discussion
of this change to New Zealand's law in the Maori communities. If I am
interpreting some of what you have said, it sounds to me as if in the non-Maori
community there was perhaps more focus on a heated media debate than on the kind
of think-it-through discussion that I gather did occur in the Maori communities.
As a former journalist myself, I can say that it is often true that media
debates create a great deal more heat than light. I wish it were not true, but
it is too often true.
It has struck me quite strongly that when your change to the law took place
it came as a big bang. The law was passed and that was that. If I am wrong about
that, do please correct me. The bill before us would include a one-year period
between the time that it received Royal Assent until it actually came into
force. I understand that the object of that one-year period would be to engage
in a rather more rational period of public education — drafting of new
guidelines for the police and the Crown prosecutors and all that kind of thing.
On the strength of your experience, which do you think is likely to be more
useful — a big bang or a grace period of some duration?
Dr. Hassall: I think it depends very much on the kind of society you
have and what has happened before. When you say New Zealand passed the law with
a big bang and that was it, there was a period of almost two years from the
introduction of the bill as a private member's bill into Parliament and then its
passage through first reading and second reading and an intervention of a
parliamentary committee taking submissions and so on. There was a lengthy
process. It was very interesting.
If you are interested in the whole process, read our book. There is a chapter
there entitled "The Media.'' We felt it a good idea to include that because the
whole media involvement in this was fascinating. It began as an interest that
was about child rearing and child rearing methods long ago. That was the
rational part of it all, but once it became a political matter and was picked up
by the political journalists, it became much more fierce and untidy, if you
In these things I am not too concerned about the untidiness. Things move this
way and that, but in the end they arrive at a balance. It was very interesting
to see the editorial comments on the law. In the first place it was, "Who needs
it? It is a trivial matter. Why raise it?'' Then it went through a stage of
saying, "Well, what are these people on about?'' Then we did get most of the
major media organs saying, "This is a reasonable and reasoned thing to do.''
Finally now, a year later, they are saying, "Look, let us just get on with it
and leave it alone. It is something which is passed and is no longer very
It has become boring, as Dr. Noonan has said. It is like a lot of reforms.
When you look back on them you say, "How come we got so excited about this? It
was an ordinary thing to do.'' That may be the point we have arrived at now; but
it is, as you are suggesting, a very interesting story.
I am not an expert in these matters, but in Germany where they introduced
this, they had a substantial campaign of public education following the law, and
it may be because they had somewhat less controversy than we had preceding the
law. It rather depends on what page the public are on at the present time in
Canada as to what may be necessary to bring them up to speed.
Ms. Noonan: I would like to add one thing to that. It was interesting
looking at studies and research around the world about the abolition of corporal
punishment in schools. There is no evidence that doing it one day and
proclaiming it the next brings any less beneficial result than a period to
introduce it to allow people to get used to the idea.
There is some interesting research that came out of Scotland. It showed that
it did not make any difference. If it does not make any difference, then, from a
human rights point of view, the sooner one sees that it is not acceptable to hit
children any more than it is acceptable to hit adults, the better.
In the New Zealand context, I do not think the debate within the Maori
communities was any less fierce than the debate within the mainstream
communities. A whole lot of issues which were not simply about hitting children
were part of that debate: The role of the state, the place of the state, was it
a nanny state. There were a lot of things and it was divisive.
However, at the end of the day that is what a healthy democracy is about. We
have to ensure that people do have space to discuss the issues without simply
being pressured by particular groups or ideologies. I think that also happened.
That is reflected even in the Family First poll results that show considerably
fewer people smacking their children now than even a year ago.
One can argue about the validity of these polls but it is interesting
evidence. The two public opinion research polls we have both show a declining
trend in people hitting their children. I think that is, at least in part,
because of the whole debate that occurred in the two years that the bill was
before Parliament, during which a lot of people felt hit very hard in some ways
and felt attacked by it.
However, at the end of the day, an open democratic process usually does come
up with the right answer.
The Chair: Thank you. It has been an extremely interesting session. I
do have the book and I suspect I will read the "Media'' chapter first.
We are grateful to you. You have helped us a great deal to clarify some of
the issues and to grapple with some others. We appreciate it enormously. We
would also like to thank the technical people in Wellington who have made this
work for us. Not all video conferences go as smoothly as this one has.
Ms. Noonan: We wish you well in your deliberations.