AustLII Home | Databases | WorldLII | Search | Feedback

Alternative Law Journal

Alternative Law Journals (AltLJ)
You are here:  AustLII >> Databases >> Alternative Law Journal >> 2000 >> [2000] AltLawJl 114

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Editors --- "Youth Affairs: Physical punishment - legitimising child abuse" [2000] AltLawJl 114; (2000) 25(6) Alternative Law Journal 310

YOUTH AFFAIRS
Physical punishment - legitimising child abuse?

The Corbett Bill - a step in the right direction

On 5 May 2000, New South Wales Legislative Council MP, the Hon. Alan Corbett introduced into the Legislative Council the Crimes Amendment (Child Protection - Excessive Punishment) Bill. The Bill which had been criticised by Rev. the Hon Fred Nile MLC as an inappropriate interference with the rights of parents to discipline their children, sought to amend the Crimes Act 1900 (NSW) by providing a statutory defence of lawful correction, and to make certain examples of extreme physical discipline unlawful.

The amendments would introduce a new s.61AA into the Crimes Act:

(1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the discipline, management or control of the child, but only if:
(a) the physical force was applied by the parent of the child or by a person acting for a parent of the child; and
(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
(2) The application of force is not reasonable if:
(a) the force is applied by the use of a stick, belt or other object (other than an open hand or other than in a manner that could reasonably be considered trivial or negligible in all the circumstances), or
(b) the force is applied to any part of the head or neck of the child (other than in a manner that could reasonably be considered trivial or negligible in all the circumstances), or
(c) the force is applied to any part of the body of the child in such a way as to cause, or threaten to cause, harm to the child that lasts for more than a short period.

While concern has been expressed that the Bill proposes to outlaw parental physical discipline, the effect of s.61AA(1) is to provide a clear statutory defence to be used to a charge of assault where reasonable force is applied. Statements from Rev. Nile and others, that the Bill amounts to an 'anti­ smacking' or 'anti-spanking' Bill are therefore misleading and inaccurate.

The Bill also clearly articulates situations which will not be regarded as 'reasonable'. Subsection (2) accords with the recommendations made by the Scottish Law Commission, namely that the law should set a standard of reasonableness, but also state that certain methods of punishment are so undesirable or unacceptable, that they ought to be prohibited by law.[1] Similarly, subsection (2) clearly clarifies the terms 'lawful correction' and 'reasonable application of physical force' by indicating certain forms of physical punishment which are not acceptable.

Physical punishment and the UN Convention on the Rights of the Child

The United Nations Committee on the Rights of the Child (CROC) has recommended the prohibition of physical punishment. The Committee's report from its 8th session (24 and 25 January 1995) states:


The Committee recommends that physical punishment of children in families be prohibited in light of the provisions laid down in articles 3 and 19 of the Convention. The Committee recommends that the provision of articles 19, 28, 29 and 37 taken together with the principle of the best interests of the child require that public educational campaigns be launched to emphasise the child's rights to bodily integrity. Such measures would assist in creating a climate of opinion so as to change societal attitudes to the non-acceptance of the use of physical punishment in the family and to the acceptance of the legal prohibition of the physical punishment of children.[2]

Relevant articles under CROC in relation to the use of physical punishment on children include:

Article 3 -All actions are to be in the best interests in the child, and State parties are to ensure the care and protection of children as is necessary for their wellbeing;

Article 5 -Parents and carers have the right to provide appropriate direction and guidance to their children.

Article 19 - Children are to be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.

Article 28-School discipline is to be administered in a manner consistent with the child's human dignity.

Article 37-No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.


International experience

Six million children are growing up in eight European countries where there are explicit bans on physical punishment by parents and all other carers. These countries are Sweden (1979), Finland (1984), Denmark (1997), Norway (1987), Austria (1989), Cyprus (1994), Croatia (1998) and Latvia (1998).[3] In the UK in 1998, the government was forced to deal with the issue following a decision from the European Court of Human Rights which found that the law in Britain failed to provide adequate protection to a child who had suffered repeated and severe beatings with a cane (A v The United Kingdom).[4]

In A’s case, A’s brother reported that A had been beaten by his stepfather-to­ be with a garden cane. The man was subsequently charged with assault occasioning actual bodily harm. He relied on the common law defence of reason­ able chastisement and was found not guilty by a jury.

A then applied to the European Court of Human Rights, which found that there had been a violation of the boy's rights under Article 3 of the European Convention on Human Rights (ECHR), which states that: 'No one shall be subjected to torture or to inhuman or degrading treatment'.

The Court found that UK law failed to protect A from the severe beatings, and that states are required to take measures to protect children against such

treatment. Accordingly, the Court found that the UK was in breach of Article 3 of the Convention.

The relevance of the UK experience is significant. While Australia is not a party to the ECHR, the wording of Arti­ cle 3 of the Convention is almost identical to Article 37(a) of CROC, to which Australia is a party. Accordingly, the decision of the European Court of Human Rights that the common law was inadequate to afford protection to children against such inhuman or degrading treatment, is particularly relevant in an Australian context, as neither is such protection afforded in Australia. Section 61AA of the Corbett Bill would af­ ford children in New South Wales protection against the treatment which came under scrutiny in the case of A v The United Kingdom, and other extreme forms of physical punishment.

Where to now for the Corbett Bill?

In October, the NSW Legislative Council Standing Committee on Law and Justice strongly recommended that the Legislative Council support the passage of the Crimes Amendment (Child Protection - Excessive Punishment) Bill. The Committee further recommended that the NSW government undertake a major education campaign prior to the Bill commencing, which would inform parents of the standards of what is acceptable and what is not acceptable punishment, and suggest alternative discipline strategies. While opponents of the Bill, which included the Christian Democratic Party, the NSW Council of Churches, the Christian Community Schools Ltd, the Salvation Army and the Centre for Independent Studies, will continue to assert that such legislative initiatives are an unwanted intrusion on the rights of parents to assault their children with sticks and belts, the Bill, if passed, will prevent punishments which are cruel, degrading, abusive and inconsistent with a child's dignity.

The legislation falls short of outlawing all physical punishments of children - actions which would be regarded as criminal assault if committed against anyone else in the community. One can only hope that the Corbett Bill is a first step towards the eventual recognition that excluding children from the protection of the criminal law is in itself an abuse.

Louis Schetzer

Louis Schetzer is Director of the National Children s and Youth Law Centre, Sydney.


[1] The Scottish Law Commission's Report on Family Law, May 1992, paras. 2.67-2.105.

[2] United Nations Committee on the Rights of the Child, 8th Session, 24 and 25 January 1995, Report to Government of the United Kingdom.

[3] Protecting Children, Supporting Parents-A Consultation Document on the Physical Punishment of Children, English Department of Health 1998, Paragraph 2.12.

[4] A v The United Kingdom, European Court of Human Rights, September 1998.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/114.html