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".

In September 1998, the Australian Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General examined the common law defence of lawful correction of children. They recommended, as a minimum, the Scottish Law Commission’s proposal to limit the conduct that amounts to reasonable correction, but that the law should not criminalise corrective smacking by a parent or guardian, so long as the force is reasonable.

In September 1998, a full hearing of the European Court of Human Rights unanimously stated that the United Kingdom law allowing parents to inflict reasonable physical chastisement under the defence of lawful correction does not provide adequate protection for children. The court determined that

"Children and other vulnerable individuals, in particular, are entitled to State protection in the form of effective deterrence against serious breaches of personal integrity".

The British Government has accepted that the current law fails to provide adequate protection to children and should be amended. The same common law defence of lawful correction currently exists in New South Wales.

In January 2000, the Department of Health (England) consultation paper, entitled "Protecting Children, Supporting Parents", which deals with the physical punishment of children stated:

The Government fully accepts the need for change. The harmful and degrading treatment of children can never be justified … however, we do not consider that the right way forward is to make unlawful all smacking and other forms of physical rebuke and this paper explicitly rules out this possibility. There is a common sense distinction to be made between the sort of mild physical rebuke which occurs in families and which most loving parents consider acceptable, and the beating of children. The law needs to be clarified to make sure that it properly reflects this common sense distinction.

The Crimes Amendment (Child Protection – Excessive Punishment) Bill 2000 clarifies the law, but, consistent with the previous statement on mild physical rebuke, is not anti-smacking. The Bill permits parents to smack their children, although this should not be taken to mean that I endorse physical punishment over other non-physical methods of control. Rather the bill provides examples of what will be considered unreasonable force, and thus limits the legal use of physical force to mild rather than potentially harmful methods, in keeping with the standards of most members of the community in Australia.

When discussing the desirability of appropriate alternatives for disciplining children, the 1996 position paper of the Canadian Paediatrics Society stated that it does not countenance the use of implements as a means of disciplining children. The American Academy of Pediatrics, in its policy statement entitled "Guidance for Effective Discipline" in the April 1998 issue of "Pediatrics Volume 101, No. 4", stated:

Other forms of physical punishment such as striking a child with an object, striking a child on parts of the body other than the buttocks or the extremities, striking a child with such intensity that marks lasting more than a few minutes occur, pulling a child's hair, jerking a child by the arm, shaking a child, and physical punishment delivered in anger with intent to

cause pain, are unacceptable and may be dangerous to the health and wellbeing of the child. These types of physical punishment should never be used.

The boundaries defined in the bill are within the limits proposed by those respected paediatric organisations. The bill has widespread support from peak medical bodies, key community service organisations and children's advocates, legal associations, a range of religious and education groups and ethnic communities.

Having addressed the need for the bill, I now turn to its substance.

New section 61AA (1), to be inserted into the Crime Act 1900, codifies the current common law defence of lawful correction (discipline).

New section 61AA (2) delineates three elements of force, used in the correction of a child, which would be considered unreasonable, hence the defence of lawful correction would not be available. Consistent with recommendations made by the Australian Model Criminal Code Officers Committee report of September 1998, the three unreasonable uses of force are where:

1. the force is applied by the use of a stick belt or other object (other than an open hand), or
2. the force is applied to any part of the head or neck, or
3. the force is applied to any part of the body of the child in such a way as to cause harm or threaten to cause harm to the child that lasts for more than a short period.

For points 1 and 2, if the physical force could reasonably be considered trivial or negligible in all the circumstances, parents will retain the defence of lawful correction. The exception ensures that parents will not have to fear being prosecuted for trivial matters. One proposed amendment, to which I agree, removes the original words "or threaten to cause harm" as they serve no useful purpose.

The use of a strap, cane, electrical cord or other implement can result in multiple bruises, welts and abrasions on the skin. Given the severe nature of injuries suffered by children reported by expert paediatricians, it is vital that the use of implements is discouraged. The application of physical force by an open hand is meant to be considered in terms of what a parent would normally be understood as doing in giving a child a corrective smack. It is not meant to include the back of the hand, the edges of the open hand in such a way as might deploy a karate chop or any other thrusting motion of the fingers to the body of the child.

Much medical evidence indicates the great risks involved in hitting children on the head or neck. Striking by any means, even with an open hand, can result in bruises on the face, injuries to the mouth or gums, the loss of teeth, or perforating the eardrum. Severely shaking a child's head or belting a child across the head can result in haemorrhages, spinal and internal injuries, brain damage, delays in motor development and possibly death.

The bill does not define "harm". This concept is used in other legislation, such as the Children and Young Persons (Care and Protection) Act 1998 and is also reviewed in the Model Criminal Code.

A proposed amendment recommended by the Law and Justice Committee replaces the current Section 61 AA (4). The proposed new words protects those who would need to manage, control or restrain a child by means of physical contact or force for purposes other than punishment (eg pulling or pushing a child away from danger). This ensures that teachers, child care workers and others can in certain circumstances use physical force.

Section 61 AA (5) provides definitions: "child" (a person under the age of 18 years), "de facto spouse" (as per section 4 (1) (b) of the Property (Relationships) Act), "parent" (any person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to children) and "person acting for a parent" (as those people will require express authority from a parent to apply physical force). Incidentally, provision is also made that acknowledges the special relationships existing within Indigenous communities.

Another proposed amendment extends the definition of a person acting for a parent to those to whom the parent has entrusted the care and management of the child and will omit the current age limit of 18 (in order to protect siblings who use physical discipline from prosecution).

If the bill is passed, there will be a 12-month interval before it becomes law. During that time government departments affected by the provisions of the bill will have time to adjust their policies and procedures and to appropriately train staff. The Law and Justice Committee also recommended a major community education campaign.

The Law and Justice Committee found that "The Bill provides parents with a guide to what is acceptable, normal discipline", and that it "is an advance on the common law, which at present gives no guidance to parents on acceptable/ non-acceptable discipline. The Committee does not accept the arguments that the child protection laws currently existing are sufficient to make this Bill unnecessary; child protection laws do not set clear standards for all parents on physical discipline."

"For many parents the Bill will make no difference at all, because it reflects their current standards. For a minority of parents, this legislative standard may force them to consider modification of their methods of physical discipline."

"The purpose of this Bill is to set a standard, not to be the source of prosecutions."

The Crimes Amendment (Child Protection – Excessive Punishment) Bill 2000 provides a law giving greater protection to children. Simultaneously, it values the role parents, other relatives and carers play in the life of the child: educating them in the vulnerabilities of children and supporting their ability to discipline children by giving clear indications of what is or what is not reasonable, rather than excessive, correction. The bill does not seek to remove from parents their primary responsibility of guiding a child's growth and development in a reasonable way.

The Bill must now return to Parliament for debate on its future – that is, whether it will or will not become part of the laws for this state. This will be a purely political decision. Whatever the outcome however I am confident that this bill and the report of the Law and Justice Committee provides model legislation and a comprehensive rationale for legislative change for all states and territories in Australia. It is a good bill and worthy of bipartisan support.