Maxim on Repeal of "Section 59"

This Bill will affect how parents can physically discipline their children by repealing section 59 of the Crimes Act. The Bill has generated a lot of public attention and has been the subject of heated debate. Debate, however, has not generated a coherent understanding of the current legal situation or the practical implications of such a law change. Supporters of repeal say that their intention is not to criminalise parents for what they call “trivial” smacking. Their intentions however are, to put it bluntly, irrelevant. What matters is what the law will say.

Currently, section 59 gives parents, or those in the place of parents, a defence to charges that could result from a parent’s use of physical force to discipline their child. The defence is a limited one; any force used must be “reasonable in the circumstances” and used “by way of correction”. If section 59 is repealed, the law will say that ordinary smacking constitutes an assault to which parents will have no defence. The Police have confirmed that this will be the case. This is because the law defines “assault” very widely. Assault is a criminal offence for which parents could be charged if they do not have the protection of section 59. Other occasions in which parents touch their children for disciplinary reasons, such as putting an unwilling child into a chair for a five minute “time-out”, will also constitute assault.

Many of those supporting repeal also say that the defence needs to be removed to prevent child abuse. However, child abuse is already illegal and is not protected by section 59. An analysis of cases involving section 59 shows that in the vast majority of cases, the limits of the defence are applied sensibly.