2 October 2009

ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: CRIMES (REASONABLE PARENTAL CONTROL AND CORRECTION) AMENDMENT BILL

1.     We  have  considered  whether  the  Crimes  (Reasonable  Parental  Control  and Correction) Amendment Bill (the ‘Bill’), a Member’s Bill in the name of John Boscawen MP, is consistent with the New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’). The Bill was introduced into the House of Representatives on 26 August 2009 and is currently awaiting its first reading.

2.     We have concluded that the Bill does not appear to be inconsistent with the rights and freedoms affirmed in the Bill of Rights Act.  In reaching this conclusion, we have considered potential issues of consistency under ss 9 and 19(1) of that Act.

PURPOSE OF THE BILL

3.     The Bill repeals and re-enacts s 59 of the Crimes Act 1961 (the ‘Crimes Act’) to re-establish a defence for the use of reasonable force by a parent of a child or a person acting in the place of the parent of a child for the purpose of “correcting the behaviour  of  the  child”.    Thus,  the  Bill  would  permit  a  defence  for  the  use  of reasonable force by parents or those acting in their stead for these purposes:

•	preventing or minimising harm to the child or another person
•   preventing  the  child  from  engaging  or  continuing  to  engage  in  conduct  that constitutes a criminal offence
•   preventing  the  child  from  engaging  or  continuing  to  engage  in  offensive  or disruptive behaviour
•	performing the tasks incidental to good care and parenting, or
•	correcting the behaviour of a child.

The defence will only arise in cases that rise to the level of assault, meaning instances involving more than de minimis force.

4.     The Bill also repeals existing s 59(4), which affirms that the Police have discretion not to prosecute complaints where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.  In its place, the Bill identifies the following non-exhaustive set of circumstances in which the use of force is deemed unreasonable:

•	where it is inflicted by any means that is cruel or degrading,
•   where it causes the child to suffer injury that is more than transitory and trifling, unless the person applying the force has reasonable grounds to believe force is necessary to prevent death or serious harm to the child or another person, or

•   where it is inflicted by any weapon, tool, or other implement, unless the person applying the force has reasonable grounds to believe force is necessary to prevent death or serious harm to the child or another person.

5.     Further,  the  Bill  amends  the  Education  Act  1989  to  permit  the  use  of  corporal punishment in early childhood services or registered schools against a student or child, if it is administered by a person who is the parent or guardian of that student or child.

PRELIMINARY CONSIDERATIONS

6.     There is a considerable amount of debate, both domestically and internationally, about the human rights  implications of the use of corporal  punishment in parental and educational situations and, in particular, the availability of a defence of justification for the use of reasonable force for correcting a child’s behaviour.

7.     To date, no New Zealand Court has addressed the consistency of provisions that permit the use of reasonable force against a child for the purposes of correction with the Bill of Rights Act or New Zealand’s international obligations.  We have considered, therefore, the comments of the United Nations Committee on the Rights of the Child (‘CRC’), which monitors New Zealand’s compliance with its obligations under the Convention on the Rights of the Child (‘UNCROC’), as well as the judgments of overseas courts that have addressed this issue.

8.     Article 37, paragraph (a)  of UNCROC requires States to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment. This is complemented and extended by Article 19, which requires States to take all appropriate measures, including legislative action, to protect children from all forms of violence while in the care of parents, guardians or any other person.

9.     The CRC has consistently recommended that States prohibit all forms of corporal punishment, in the family and in other settings.  Prior to the repeal of s 59 of the Crimes Act, New Zealand was continuously asked to take such action1, with the CRC commenting in response to New Zealand’s second report under UNCROC that ‘the Convention  requires  the  protection  of  children  from  all  forms  of  violence,  which includes  corporal  punishment  in  the family’.2      The  CRC  recommended  that  New Zealand should “(a) [a]mend legislation to prohibit corporal punishment in the home” and “(b) [s]trengthen public education campaigns and activities aimed at promoting positive, non-violent  forms of  discipline and  respect for children’s right to human dignity and physical integrity, while raising awareness about the negative consequences of corporal punishment.”3 These recommendations were subsequently

1 See, for instance, Concluding Observations of the Committee on the Rights of the Child: New Zealand, UN Doc CRC/C/15/Add. 71 (24 Jan 1997), para 25; and Concluding Observations of the Committee on the Rights of the Child: New Zealand, UN Doc CRC/C/15/Add. 216 (27 Oct 2003), paras 29-30.

2   Concluding  Observations  of  the  Committee  on  the  Rights  of  the  Child:  New  Zealand,  UN  Doc
CRC/C/15/Add. 216 (27 Oct 2003), paras 29-30

3 At para 30.

endorsed by the Committee Against Torture in its considerations of New Zealand’s
fourth report under the Convention Against Torture.4

10.   New Zealand has not been alone in the debate surrounding parental use of force for correction of a child.  Overseas, Courts have differed in their approach and in their conclusions.

11.   The European Court of Human Rights (‘ECHR’) upheld a challenge to a criminal provision providing a defence of justification for the use of reasonable force by a parent  for  ‘reasonable  chastisement’.5       In  the  context  of  that  case,  the  ECHR observed  that  a  state  should  take  positive  steps,  including  the  enactment  of appropriate legislation, to ensure that children are not subject to torture or cruel and inhumane treatment by private persons.  However, the ECHR stopped short of ruling that all instances of corporal punishment would breach Article 3 of the European Convention of Human Rights. 6

12.   The  Canadian  Supreme  Court,  however,  rejected  a  similar  challenge  under  the Canadian  Charter  of  Rights  and  Freedoms  (‘Charter’).7       The  Court  questioned whether parental use of force constitutes state action attracting the protection of the Charter and held that, in any event, the defence would not permit conduct that was sufficiently severe to meet the ‘cruel and unusual’ threshold.   The Court noted Canada’s obligations  under UNCROC, but stated that it did not explicitly require States parties to ban all forms of corporal punishment.8

13.   Since these judgments, the CRC has issued a general comment on the protection of children from corporal punishment under UNCROC.9    The CRC noted that ‘in many States there are explicit legal provisions in criminal and/or civil (family) codes that provide parents and other carers with a defence or justification for using some degree of violence in ‘disciplining’ children’.10   The CRC emphasised that:

4   Conclusions  and  Recommendations  of  the  Committee  Against  Torture:  New  Zealand,  UN  Doc
CAT/C/CR/32/4 (2004), para 6(e)

5 A v United Kingdom (1998) 27 EHRR 611

6  Article 3 provides that ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or
punishment’.

7 Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004 SSC 4, [2004]
1 S.C.R. 76 (The Court considered, inter alia, whether the availability of a defence for the use of reasonable force for parental correction violated the rights to freedom from cruel and unusual treatment and freedom from discrimination under sections 12 and 15 of the Charter, respectively.)

8  The House of Lords also considered the application of the obligations imposed by UNCROC and the recommendations of the CRC to laws governing the use of corporal punishment in Regina v Secretary of State for Education and Employment ex parte Williamson [2005] UKHL 15, at 30-34.  The House of Lords noted that while particular instances of corporal punishment may, depending upon their nature and circumstances, reach the high threshold of inhuman or degrading treatment (under Article 3 of the European Convention on Human Rights), not all such punishment reaches that standard.

9 UN Committee on the Rights of the Child, General Comment No. 8 (2006)

10 At para 31

[…] the Convention requires the removal of any provisions (in statute or common – case law) that allow some degree of violence against children (e.g. ‘reasonable’ or ‘moderate’ chastisement or correction), in their homes/families and in any other setting.

14.   Other international human rights bodies have emphasised that corporal punishment is incompatible with international human rights law.  For instance, the Human Rights Committee, which offers the authoritative interpretation of the International Covenant on Civil and Political Rights (‘ICCPR’), has emphasised that the prohibition on the use of cruel, inhuman, or degrading treatment or punishment "must extend to corporal punishment, including excessive chastisement ordered ... as an educative or disciplinary measure."11     The present UN Special Rapporteur on Torture, Manfred Nowak, has also observed:

Since corporal punishment in all its forms ... whether imposed by State authorities or by private actors, including schools and parents, has been qualified by all relevant intergovernmental human rights monitoring bodies as cruel, inhuman or degrading punishment, it follows that, under present international law, corporal punishment can no longer be justified, not even under the most exceptional situations.12

POTENTIAL ISSUES OF CONSISTENCY WITH SECTION 9 OF THE BILL OF RIGHTS ACT

15.   Section 9 of the Bill of Rights Act provides that ‘[e]veryone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment’.

16.   We note that while ss 8 to 11 of the Bill of Rights Act come under the heading ‘Life and Security of the Person’, there is no specific right to security of the person in the Act itself.  In this respect, the Act departs from the text of the ICCPR, which requires that States guarantee ‘security’ of the person in addition to rights against torture and degrading treatment.   The Act also differs from the Charter, which similarly affirms
‘life, liberty and security’ in addition to rights against cruel and unusual punishment.

17.   As such, we have confined our analysis specifically to whether the Bill reaches the high threshold applicable under s 9 of the Bill of Rights Act.

Application of Section 9

18.   The Bill of Rights Act only applies to acts done by the legislative, executive or judicial branches of the government of New Zealand or in the exercise of a public function according to law (see s 3 of that Act).  The Act does not apply to the actions of private citizens.  There is some question whether the Bill involves the type of state action that attracts the protection of s 9.

19.   It is arguable that the creation of a defence of justification for the use of reasonable force against children for correction constitutes a failure by the state to discharge its

11  UN Human Rights Committee, General Comment No. 20, para 5. See also Report of the Committee against Torture, UN GAOR, UN Doc. A/50/44 (1995), para 169 (declaring that the "continuing application" of corporal punishment "could constitute in itself a violation of the Convention").

12  Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN GA A/HRC/10/44, 14 Jan. 2009, para 37.

duty to protect  vulnerable citizens from abuse and violence.   In that regard, the availability of the criminal defence can be seen as an action of the state.  This was the approach taken by the ECHR in A v United Kingdom, as discussed above.13

20.   Further, while certain aspects of the Bill are restricted to purely private conduct, it is clear that the Bill is broad enough to capture individuals who are performing a public function.  The inclusion of individuals ‘acting in the place of a parent’ captures legal guardians appointed by the state or any individual acting in loco parentis on behalf of the state.  For instance, employees of facilities that care for children with disabilities or individuals looking after children placed in the care of the State would fall within the plain meaning of a ‘person acting in place of a parent’.

21.   In addition, the Bill amends the Education Act to permit corporal punishment at child care facilities and educational institutions.  The availability of corporal punishment to respond to unacceptable behaviour during the course of educational instruction, even if administered by a parent who is called in for that purpose, involves a public function.

22.   In light of the above, we have concluded that the Bill attracts the protection of s 9 of the Bill of Rights Act.  With that conclusion in mind, we turn to the substance of the Bill and whether it is consistent with that provision.

Consistency of the Bill with Section 9

23.   As noted, s 9 of the Bill of Rights Act is directed at the prohibition of torture and cruel, degrading, or disproportionately severe treatment or punishment.

24.   It is clear that the Bill does not provide a defence of justification for the use of force that constitutes torture.  In addition, as noted, the Bill explicitly prohibits the use of force if it is applied in a manner that is cruel or degrading.  The remaining question is whether   the   Bill   sanctions   the   use   of   force   in   a   manner   that   constitutes
‘disproportionately severe treatment’ within the meaning of s 9.

25.   The Supreme Court has held that for s 9 to be engaged, the treatment must reach the very high threshold of outrageousness.14    The right will not be triggered unless the treatment  is  ‘so  excessive  as  to  outrage  standards  of  decency’.15      Once  s  9  is engaged, there is no scope for justification within the meaning of s 5 of the Bill of Rights Act.16

26.   There is an argument that the use of force for the purpose of correction is by its very nature disproportionately severe treatment.  If the use of corrective force is per se disproportionately severe, it follows that there would be no possible interpretation of the  Bill  that  would  both  give  the  defence  of  justification meaning  and  permit  an

13  Cf Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004 SSC 4, [2004] 1 S.C.R. 76 (questioning whether parental correction constitutes treatment or punishment by the state)

14 Taunoa v Attorney-General [2008] 1 NZLR 429 (SC), 476, 501, 529, 544 and 552

15 Puli'uvea v Removal Review Authority (1996) 2 HRNZ 510, 523

16 See for example R v Hansen, [2007] 3 NZLR 1 (SC), 83

interpretation consistent with the Bill of Rights Act.  In other words, the Bill cannot be applied in a manner consistent with the Bill of Rights Act because the very conduct it seeks to permit is itself inconsistent with that Act.

27.   There is support for this argument, particularly given New Zealand’s obligations under international  human  rights  treaties,  including  UNCROC,  as  well  as  the  current domestic prohibition on the use of corrective force against children.  We note that the
2007 amendment to the Crimes Act to enact the current s 59 explicitly provides that the use of force for correction cannot be justified.

28.   The Bill, however, only permits the use of force that is ‘reasonable’ and prohibits the use of force in a non-exhaustive set of circumstances, including in any manner that it cruel or degrading.  This wording appears sufficiently flexible – particularly given the requirement of the Courts to interpret legislation consistently with the Bill of Rights Act (see s 6 of that Act) – to enable the Bill to be read in such a way that any treatment that is disproportionately severe would also be unreasonable under the Bill and therefore still prohibited under the criminal law.

29.	This  was  the  approach  taken  by  the  Supreme  Court  of  Canada  in  Canadian
Foundation.17   The Court ‘read down’ an enactment creating a defence for the use of
‘force by way of correction..., if the force does not exceed what is reasonable under the circumstances’.  Specifically, the Court held that the term ‘reasonable’ could be interpreted to limit the defence to situations in which force would actually serve a corrective purpose.  The Court held that the following prohibitions – covering both situations where force could be used as well the type of force administered – could be read into the legislation:

•   the use of force against children under two and over twelve years of age
•	the use of force against children incapable of learning from it (for example because of disability)
•   where the force used involves objects, such as rulers or belts
•   where the force used involves blows or slaps to the head, and
•   where the force used raises the apprehension of bodily harm.

30.   In applying Canadian Foundation to the New Zealand context, we have been mindful of the limitations around using s 6 as an interpretive tool.  The role of s 6 was set forth succinctly by Justice Tipping in Hansen (addressing the difference between the New Zealand and United Kingdom contexts):

[…] the approach of the United Kingdom Courts appears to be more ‘adventurous’ than that in New Zealand.  The same point could be rendered by saying that the English Courts, in their different and more complicated supranational environment, seem to have felt it appropriate to strike the balance between the judicial and the legislative roles in a rather different way.   I myself have previously emphasised that the finding of alternative meanings under s 6 must follow a legitimate process of construction; s 6 must not be used as a concealed legislative tool.  The Courts may interpret but must not legislate.18

17 2004 SSC 4, [2004] 1 S.C.R. 76

18 at 55

31.   With these considerations in mind, we note that the test in the Bill has two limbs.  The use of force must be reasonable and it must be for one of the exhaustive list of purposes.  We consider that there is scope for a Court to determine that particular types of force used in addition to those described in new section 59(2), such as blows or   slaps   to   the   head,   are  unreasonable.      However,   the  consideration  of reasonableness for the purposes of the Bill is not confined to the type of force used but will also apply to all circumstances of a particular case, including age, characteristics, purpose and context.

32.   As such, if the force used is not reasonable in the circumstances of a particular case, it  will fail to meet the test and will not be justified.   For example, if the age or characteristics of the child mean that corporal punishment would never be effective then the use of force would not be reasonable.  This could potentially cover smacking infants and children with intellectual disabilities (on the basis that corporal punishment has no corrective value given their cognitive limitations).  There is also research available which indicates that smacking teenagers is ineffective (as corporal punishment as a form of correction can induce aggressive and antisocial behaviour). While we are aware of the limitations of s 6, our view is that a Court would necessarily interpret the Bill to include some or all of these prohibitions on the use of force.

33.   We recognise that this is a finely balanced question.  We note that while the Bill may be at odds with guidance from international human rights treaty bodies, the Bill of Rights Act is limited in scope and only covers conduct sufficiently outrageous to constitute ‘torture or cruel, degrading or disproportionately severe treatment’.

34.   Further, we note that s 6 of the Bill of Rights Act will require the Bill to be interpreted, if possible, in a manner that is consistent with that Act.  As such, the limitation on the use  of  force  to  instances  in  which  it  is  reasonable  in  the  circumstances  will substantially narrow the application of the Bill to only those instances in which force would actually achieve the purpose of correction.  Specifically, our conclusion relies on our determination that a Court would be unlikely to permit the defence to be used in instances in which force is used for the purpose of correction against infants, teenagers and children with diminished mental capacity.

POTENTIAL  ISSUES  OF  CONSISTENCY  WITH  SECTION  19(1)  OF  THE  BILL  OF RIGHTS ACT

35.   We have also considered the Bill for consistency with s 19(1) of the Bill of Rights Act, which affirms the right to freedom from discrimination on the grounds set out in s 21 of the Human Rights Act 1993.  These grounds include age, which is defined as any age commencing with the age of 16 years.

36.   Clause 5 of the Bill specifies instances in which the reasonable use of force by a parent, or person in place of a parent, against a child is justified.  The Bill does not, however, define the term ‘child’.

37.   The Crimes Act also does not contain an explicit definition of ‘child’. However, it contains  a  number  of  offences  against  children  that  specify  varying  ages  of applicability.  For example, s 194 (assault on a child) applies to acts against children under the age of 14, s 132 (sexual conduct with a child) applies to acts against

children under the age of 12, and s 195 (child cruelty) applies to acts against children under 16.

38.   We consider that s 194 is the primary ground under which a prosecution may lead to the use of s 59.  This is evidenced by a recent report detailing police activity since the enactment of the Crimes (Substituted Section 59) Amendment Act, which noted that eleven of the fifteen charges laid during that period were of ‘assault against a child’.

39.   In light of this, we consider that the term ‘child’ for purpose of the Bill would be defined as a person under 16 (or younger).  On this basis, any distinctions that the Bill creates between individuals on the basis of age are not prohibited in terms of anti- discrimination standards and, therefore, the Bill is not inconsistent with s 19(1) of the Bill of Rights Act.

CONCLUSION

40.   We have concluded that the Bill does not appear to be inconsistent with the rights and freedoms affirmed in the Bill of Rights Act.  This advice has been prepared by the Public Law Group and the Office of Legal Counsel.

Jeff Orr
Chief Legal Counsel
Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Crimes (Reasonable Parental Control and Correction) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New
Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the
Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter.