Richard Ekins, the University of Auckland finds the Government position incoherent and unlawful
New Zealand Law Journal December 2009
Some MPs may have hoped that they were protecting “good parents” when they voted to enact s 59(4). The government may continue to assert that the subsection directs Police not to prosecute light smacking. If it presses this assertion then at some point it risks unlawfully interfering with Police in operational matters and/or unlawfully purporting to suspend anAct of Parliament. However, what Parliament intended when it enacted s 59 – the proposal for action that was open to reasonable legislators at the time of enactment – was to remove any justification for the use of force for the purpose of correction and to affirm that police need not prosecute inconsequential assaults.Whatthismeansis that Parliament intended precisely to criminaliseparentsfor lightsmacking.Theamended section neither bars police from prosecuting any particular case, nor limits private prosecutions. Arguably, any Police policy not to prosecutelightsmackingisunlawful.If thegovernmentwishes to protect“goodparents” from the criminal law then it cannot rely on s 59(4) but must instead invite Parliament to enact legislation specifying when and how reasonable force – a light smack – for the purpose of correction is justified.