Good Motive, Bad Law

Grant Illingworth QC, Barrister
Specialises in public law and civil litigation, and has been in practice for over 30 years

12th July 2009,
There can be no doubt that those who promoted the recent amendment to section 59 of the Crimes Act had the best of motives for doing so. There have been far too many cases of appalling violence being used against young children in New Zealand and something had to be done. But did we do the right thing? Did the legislative amendment improve the law or make it worse? And by what yardstick can a situation of that kind be judged?
There are three reasons for concluding that the amendment was an inappropriate response to the problem. The first is that the amendment is an extremely poor piece of legal drafting in that it is calculated to create confusion rather than clarity. The second is that it criminalizes behaviour which should not be classified as a criminal offence. The third is that it fails to provide adequate protection for those whom it was designed to help.

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