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Excessive Punishment Bill adds clarity

By Patrick Parkinson - posted Thursday, 15 February 2001

Parliament has a fundamental duty to all citizens to ensure that the law is clear enough that they can know what the law requires of them. It is inevitable that some laws are very complex. Tax law is an example, Corporations Law is another. It is appropriate in such cases for people to rely on professional advisers. Most are in business, and such advice is a legitimate business cost.

In areas of law that regulate the lives of ordinary citizens, clarity is especially important, because people cannot be expected to consult lawyers about everything they do. It would be unacceptable if the laws of speeding were so vague that drivers were advised only to drive at a speed which is "reasonable in the circumstances". People should not be exposed to criminal prosecution if they fail to adhere to vague laws. I may believe that I am driving at a reasonable speed; a police officer may disagree. The criminal law should not be dependent on people’s opinions. It should be clear.

The current law of reasonable chastisement is not clear. It depends on the opinion of the magistrate, judge (or occasionally, jury). The careful review of the reported cases in The National Child Protection Council report, "Legal and Social Aspects of the Physical Punishment of Children" (1995) demonstrates how uncertain the law is. It depends on what a court considers to be reasonable. A defendant will only find out what the court thinks is reasonable when she is in the dock facing criminal charges. This is morally unacceptable.


Mr Corbett’s Bill makes the law much clearer. It is very carefully drafted to meet all the objections which Honourable Members have previously raised. Although it necessarily uses technical language to deal with those issues, it translates into a clear enough message:

  • Smacking with an open hand is reasonable discipline.
  • Punching a child, kicking a child, or using a weapon on a child, such as a stick or belt, is not acceptable.
  • Belting children around the head or neck is not acceptable.
  • If you engage in unreasonable discipline there is a risk you will be prosecuted, but not if the breach is trivial.

The purpose of the law can readily be explained to people. It is to prevent serious injury to children because sometimes parents injure their children through using excessive force. Parliament has a moral duty to ensure that the law is clear and reasonable. In my view, this Bill is as clear as it can be in the circumstances and is entirely reasonable.

  1. Prosecutorial discretion
  2. It must be emphasised that this Bill clarifies the defence of lawful correction. It is a defence to a prosecution. There will be no need for a defence unless there is a prosecution, and there will be no prosecution unless the case is sufficiently serious that prosecution is considered necessary. In most cases, if not all, prosecution will occur because the child has in fact been injured.

    The obvious question to ask then is why have this Bill at all? In a case where actual bodily harm has been caused to a child, no-one would argue that the discipline is reasonable. The answer is that this Bill is about preventing injury to children. Its purpose is primarily educational. It is much better to prevent serious injury to a child than to prosecute a parent for causing brain damage to a child by belting them around the head. For the child, prosecution is too late. The damage has been done. Sometimes the damage to children from excessive punishment is psychological. In time, the physical wounds may heal, but the terror from being assaulted by a parent who is meant to protect you may cause long-term psychological damage. One of children’s most fundamental needs is to feel safe. They will not have that security if they are constantly ill-treated and exposed to excessive, arbitrary or dangerous physical punishment.

    The importance of the Bill then, is in sending clear messages, preventing serious injury to children, and ensuring that parents who want the best for their children by disciplining them, do not do so in a way which causes lasting psychological harm. Excessive and arbitrary punishment can ultimately destroy the health of a parent-child relationship. No-one, surely, wants that.

  3. Interpretation of the Bill

I have read the various comments in the debate on this Bill. I offer the following observations:

  • The law is absolutely clear: the Bill treats smacking as lawful and reasonable chastisement.
  • There is no possibility that a parent could be prosecuted for smacking a child.
  • There is no possibility that a parent could be prosecuted for threatening to smack a child.
  • A parent would be very unlikely to be prosecuted for hitting a child with a wooden spoon if no lasting injury results, however a wooden spoon is a stick or other object within the meaning of subsection (2)(a).
  • The Bill leaves open the possibility that a parent could be prosecuted for smacking a very young baby (for example, a baby under 6 months old). The force must be reasonable having regard to the age of the child. I cannot imagine any member of the House could defend hitting a helpless baby. Any parent who feels the need to do so is likely to be a parent who has serious psychological problems which may lead him or her to cause serious injury to the baby.

I know that the press do not always report responsibly or report fully all the details necessary to understand what happened. This is why it is so important not to misrepresent the effect of the Bill. It does not ban smacking and it does not attack parents’ rights. It clarifies the existing law and that is good for everyone.

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This article has been extracted from Professor Parkinson’s submission to the NSW Crimes Amendment (Child Protection – Excessive Punishment) Bill Review Committee.

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About the Author

Professor Patrick Parkinson is a Pro-Dean of Law at the University of Sydney. He chaired the Review of the Children (Care and Protection) Act 1987 that led to the enactment of the Children and Young Persons (Care and Protection) Act 1998.

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