New South Wales child protection law lacks clarity and definition

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).