New South Wales child protection law lacks clarity and definition

It has been stated that a good law is one that the vast majority of the community will accept as reasonable and necessary. With this in mind, in May 2000, I introduced a Bill to NSW Parliament, the Crimes Amendment (Child Protection – Excessive Punishment) Bill 2000.

The Bill does not prevent a parent smacking their child, but it does discourage more harmful forms of corporal punishment. The bipartisan Law and Justice Committee examined the Bill in great detail and unanimously supported it, subject to minor amendments, which I am very happy to support and to which I will refer in this paper.

Parents or others charged with assault of their child at present in NSW can plead the defence of lawful correction, if they were exercising punishment as a part of disciplining a child. It permits physical force in a manner that is "reasonable" considering all the circumstances. This has been generally determined by reference to the nature of the alleged misbehaviour; whether a proper or reasonable instrument was used; the age, maturity and other physical characteristics of the child; the location of the blows; and the extent of the harm or injury caused. The bill assists in the judicial interpretation of what is meant by "lawful correction" by clearly defining what is not reasonable correction. This in turn provides clear guidance to parents and guardians, and will minimise the risk of physical harm or injury to children when they are being physically punished.

Many uncertainties in judicial interpretation stem from the case-by-case development of the common law criteria in this area over the past 140 years and varying interpretations of the common law by different courts in various common law jurisdictions. This has led to uncertainty about the legal limits and boundaries that apply to the physical punishment of children. Even when courts make clear pronouncements, decisions are not generally made known to parents and may still not be applied in similar circumstances.

The lack of clarity has been examined and discussed both here and abroad for many years.

In 1992, the Scottish Law Commission said:

"Any examination of the relevant cases will show that standards and values vary so widely that no rule of thumb definition can be extracted … the parenting public could not be expected to be finely tuned to the detail of judicial decision on such matters."

The Scottish Law Commission recommended that the law should both "set a standard of reasonableness" and should state that correction was not lawful if it was inflicted with an implement or inflicted in such a way as to risk or cause injury or inflicted to cause pain and discomfort lasting more than a very short time.

In Australia, the 1995 discussion paper entitled the "Legal and Social Aspects of the Physical Punishment of Children" commissioned by the Commonwealth Department of Human Services and Health (under the auspices of the National Child Protection Council) concluded:

"The case law regarding the defence of lawful correction currently does not provide clear guidance as to the legal limits of physical punishment."

In 1996 the legislative review unit reviewing the Children (Care and Protection) Act 1987 acknowledged that the definition of "assault" as one of the criteria in determining child abuse is "too vague". It raised a number of questions as to what may or may not constitute an assault on a child and suggested that

"the Act needs at least to define certain kinds of corporal punishment which are unacceptable to the community".