New South Wales child protection law lacks clarity and definition

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.