an Advisory Notice to Schools - 22 June 2007
by Michael Drake, director of Wycliffe Christian Schools
Most of you are aware that the Bradford amendment to S59 of the Crimes Act comes into force today. It has been generally recognised that this makes parental use of force in the correction of children illegal. In exactly the same way the use of force by schools and teachers in the correction of children is now illegal.
From today, it appears that forcing a child to undergo correction at school will constitute an assault.
If the Police are consistent in following their guidelines published this week, every complaint about a punishment or correction at school will need to be investigated and, if not prosecuted, reported to a Family Violence Co-ordinator.
There is no provision in the Education Act that specifically empowers schools to correct children. Hitherto the legal basis for teachers in New Zealand schools correcting enrolled children has been that they are acting "in the place of parents". The Bradford amendment to S59 specifically excludes those acting in the place of parents from using force to punish or correct a child.
A school that forces a child to write lines, pick up paper in the playground or be detained at an interval or after school, for the purpose of punishment or correction, is likely to be committing an assault.
Schools need to note that "force" is a term not restricted to physical force: it can involve placing a child under duress whereby he reasonably believes he will suffer if he does not comply.
The Police Guidelines specifically identify as an offence the detaining of a child in a situation where punishment or correction is intended (as opposed to transient detention to end an actual act of offensive, disruptive, illegal or dangerous behaviour).
State Schools, as opposed to Private Schools, are empowered by the Education Act to stand-down, suspend or exclude pupils. But that power cannot be exercised by way of punishment or correction: it can only be exercised on the basis that the student or other students will be harmed or that other students will be subject to a dangerous example.
Similarly State Schools are empowered by the Education Act to make bylaws, but only so far as they are in compliance with the "general law" of New Zealand. Such bylaws can no longer legitimise the use of force to correct or punish children.
Private Schools' powers of correction have hitherto rested on the contractual arrangements with parents and the common law recognition that teachers are acting in the place of parents. The power to correct on the basis that teachers are acting in the place of parents is now specifically removed, and no contractual arrangement with parents could restore such a power.
We strongly advise schools to:
1. take legal advice
2. revise their discipline policies and practices
3. brief staff on safe management of children
We also recommend that as part of schools' citizenship and anti-violence programmes guidance be given children on how to lodge complaints with the Police on behalf of themselves or others who might have been forcibly detained or punished in any school.
While we are not confident Police will be as willing to intervene in state schools as they are to intervene in families, children in schools are entitled to the same even-handed application of the law as children in the home.
In so far as biblical Christian faith and practice has been specifically targeted in the propaganda used to ram this amendment through Parliament in the face of unprecedentedly overwhelming opposition to it, we have every reason to fear that Christian families and schools will be targeted while state institutions will not be subject to the same policing. The fact that the Police Guidelines deal exclusively with corrective force in families and ignore the same offence in schools where it is a daily practice, appears indicative of already entrenched discrimination in Police attitudes and practice.
That a ban on smacking should effectively extend to all forms of punishment and correction should not come as a surprise. It is not just smacking that is opposed. All forms of correction and punishment are opposed in the foolish belief that there is no God, and that as a consequence there is no right and wrong. Along with that is the equally futile belief that if only we can make the "appropriate" laws, "inappropriate" behaviour can be ended and social harmony established.
But enforcing outward compliance does not change the heart, from which, Jesus said, comes wrong (Matthew 15:19). Laws cannot make people good, so laws cannot make societies good. Only God can change the heart. The Bradford amendment gives expression to the hope that man can replace God, and by law change human nature.
Law can, and should, punish wrong and reward right (Romans 13:4). While unable to change the hearts of wrongdoers, good law does establish an orderly and safe society. Ironically, the Bradford amendment that ostensibly opposes punishment will punish parents and teachers who really have the welfare of children at heart.
Michael L Drake