This paper presents a commentary on the Crimes Amendment (Child Protection – Excessive Punishment) Bill 2000, which received its Second Reading speech in the NSW Legislative Council on 5 May 2000 and was subsequently referred to the Standing Committee on Law and Justice for inquiry and report. The object of the Bill is not to abolish the common law right of parents to physically punish their children altogether. Instead, it seeks to assist parents and the courts by defining what does not constitute reasonable lawful correction.

The paper’s main findings are as follows:
 

• many issues have been raised by the Bill, not least the philosophical differences that exist about the extent to which the state may legitimately intervene in family life (page 1);

• where the conflicting rights of parents and children are at issue, it is necessary to consider the underlying principles which inform the law (page 2);

• there has been a gradual reduction of the once nearly absolute rights and authority of fathers over children. In particular, it is against the background of the rise of the child-centred welfare principle and changing community standards generally that the Bill’s proposals should be considered (page 4);

• in NSW the common law defence of lawful correction applies where an adult who is a parent or a person in loco parentis (acting in the role of a parent) is charged with a statutory offence of assault under the Crimes Act 1900. For practical purposes, these statutory assaults can be said to have superseded the offences of assault at common law upon which they are founded conceptually (page 4). The defence can also be presumed to apply in relation to offences committed under section 227 of the Children and Young Persons (Care and Protection) Act 1998 (page 12);

• the distinction made at common law between assault and battery remains relevant. Common law assault consists in acting intentionally or (it seems) recklessly so as to put a person in fear of the immediate application of unwanted physical force against his or her person. A battery, on the other hand, consists in the intentional or reckless application of force to the person of another without consent (page 6);

• the defence of lawful correction exists at common law in NSW, as it does in Victoria, South Australia and the ACT. In broad terms, the defence says that a parent or a person acting in a parental role (in loco parentis) can administer moderate corporal punishment to the child if that course is reasonable in all the circumstances (page 6);

• since 1995 a teacher in NSW can no longer rely on the defence of lawful correction where he or she resorts to the use of physical force ‘to punish or correct’ a child (page 10);

• part of the difficulty in assessing the operation of the defence of lawful correction is that in practice charges of assault in the context of correcting a child rarely come before the courts. Indeed there appear to be no reported cases in recent times in NSW; nor is any relevant statistical evidence available to indicate how often these cases appear before the lower courts (page 13);

• in January 2000 the UK Department of Health released a consultation document canvassing options for reform along similar lines to those proposed under the Bill titled, Protecting Children, Supporting Parents (page 14); in February 2000 the Scottish Executive Justice Department issued for the same purpose The Physical Punishment of Children in Scotland: A Consultation (page 17). In Australia, a similar approach was adopted in the Model Criminal Code Officers Committee’s 1998 report on Non Fatal Offences Against the Person (page 21);

• a number of questions can be raised concerning the Bill’s drafting with a view to asking how well it achieves its stated intention of clarifying what is a complex area of the law (pages 22-36);

• by defining ‘child’ as ‘a person under 18 years of age’ the Bill does not seek to set either a lower or upper age limit within the 0-18 range in relation to which the defence of lawful correction would not apply at all (page 35);

• it has been said of the defence of lawful correction that ‘This is an emotional issue over which there are keenly felt opposing positions’. This was reflected in the Second Reading debate for the Bill (pages 37-42); and

• it can be asked what impact the Bill is likely to have? Should it be viewed as ‘a way of fighting a worrying rise in what should only be described as assault’? Or is it more likely to operate not so much as a law that will be employed on a regular basis to prevent abuse, but as something like a standard by which parental practice may be guided? (pages 42-43)