Topsy-turvy debate on NSW corporal punishment Bill

"I always voted at my party’s call
And I never thought of thinking for myself at all’

- W.S. Gilbert

Children are the off-stage extras in a political pantomime that has been taking place in New South Wales. The topsy-turvy nature of the Parliamentary debate on a Bill to limit the use of parental corporal punishment would make an excellent scenario for a Gilbert and Sullivan operetta.

The law in New South Wales currently allows parents and carers to use corporal punishment to correct a child’s misbehaviour provided no more than reasonable force is used. Unlike some other Australian states, the right of parents to use reasonable chastisement is part of the common law and is not incorporated in NSW statute law.

In NSW as elsewhere the issue of corporal punishment has stirred public debate with a polarisation of attitudes between those who see smacking as a natural and effective means of disciplining children and those who view physical punishment as a form of violence and argue that children should have no lesser protection than adults from family violence.

Hon Alan Corbett, an independent member of the NSW upper house, has for four years been promoting an amendment to the law which would incorporate in statute law the right of parents to smack their children but would place limitations on that right. His latest initiative, the Crimes Amendment (Child Protection – Excessive Punishment) Bill, was introduced into the Legislative Council on 5 May 2000. It provides that parents and carers may punish their children with a smack to the body administered with the open hand but would ban:

• the use of a stick, strap or other object;
• any blow to the neck or head; and
• any blow likely to cause harm to the child for more than a short period

Alan Corbett’s original Bill has been hedged around with qualifications and exceptions in response to his broad consultations. The most recent version allows the use of a stick, strap or other object and/or a blow to the neck or head if it is administered ‘in a manner that could reasonably be considered trivial or negligible in all the circumstances’. The revised Bill also extends the definition of ‘parent or person acting for a parent’ to include other persons who in Aboriginal communities exercise special responsibilities in relation to the child.

One might have thought that such a Bill would receive widespread support as offering a compromise between total abolition of the right to hit children and the current law which fails to protect children against the possibility of injury or abuse. This has not proved to be the case. Both the governing Labor party and the opposition Liberal Coalition are opposing the Bill. In effect they are saying that parents should not only be allowed to hit their children but they should be free to hit them with a stick or strap, and to hit them round the head and face. This makes a mockery of child protection and domestic violence laws intended to protect children from violence and abuse. It also defies the U.N. Committee on the Rights of the Child which has consistently taken the view that laws which permit corporal punishment breach the Convention on the Rights of the Child.

Although Mr Corbett had been led to believe that the Labor government would support his private members’ Bill in its amended form, he learned just days before it was introduced that Cabinet had decided not to support it. During two days of debate on the Bill no government member spoke on the issue so the government’s reasons for reneging on their support for the Bill were never given. One Opposition speaker suggested that Labor’s unwillingness to support the Bill was a result of an assurance given by the Minister of Education some years ago. It is said that, when corporal punishment was banned in schools, the Labor party gave an assurance that it would not interfere with the parental right to use corporal punishment.

Because the government did not support the Bill, the opposition also decided not to support it. The first speaker for the opposition, a former NSW Attorney-General, said he would vote for the Bill, despite his party’s decision not to support it, pointing out that the law on corporal punishment was in need of clarification. The second opposition speaker indicated that the opposition did not support the Bill but proceeded to raise a number of arguments in favour of limiting corporal punishment, pointing to the unsatisfactory nature of the common law principle and the need to protect children from violence. He went on to express a personal view that he supported the Bill and that he saw a need for a clear statement that belting a child is a criminal offence. He indicated that the reason why the opposition did not support the Bill was that the government did not support it – truly Gilbertian reasoning.

Members of the minor parties – the Democrats, Greens and even the Shooters Party (not known for their liberal views) spoke in support of the Bill as did the independents in the upper house. Of ten members who expressed a view on the Bill, only three raised arguments against it. The strongest opponent was Fred Nile of the Christian Democrat Party. Another opponent said that she supported the principles behind the Bill but queried the detail.

The Bill has received the support of the Commissioner for Children and Young People and a wide range of child protection organisations, human rights bodies, legal, health and education professional bodies and the NSW Ethnic Communities Council.

The Bill, which had seemed to be dead in the water, was given a last minute reprieve when it was referred to a Standing Committee for consideration and report back. It can only be hoped that the outcome will be influenced by matters of principle rather than the political game-playing that has characterised its progress to date.

Children deserve better.