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Push for child punishment ban

News

Cite as: (2003) 77(10) LIJ, p.22

Parliament is urged to get behind moves to reform child discipline laws.

Children hit and injured by their parents in the name of discipline deserve the same rights as adults who are assaulted, according to Melbourne lawyer Jodie Nicholls.

For the past two years, Ms Nicholls, a senior associate at Herbert Geer and Rundle, has been part of a partnership working towards law changes that would effectively ban the hitting of children by parents and carers.

Ms Nicholls provides pro bono legal advice on the controversial issue to the Australian Childhood Foundation (formerly Australians Against Child Abuse) and the Monash University’s Child Abuse and Family Violence Research Unit.

The partnership has conducted research, carried out surveys and written reports on the need for legislative change. The next step is to harness political support.

Victorian law currently states it may be reasonable for a caregiver to hit a child, including with an instrument, as a means of discipline.

The punishment cannot be without a just cause or excuse and must not be excessive. Also, in determining what is reasonable, consideration must be given to the age, physique and mentality of the child, and also to the means or instrument used.

Ms Nicholls said this was not good enough.

“The law is inadequate in that it no longer reflects community attitudes and it does not protect the children,” she said.

“If an offender causes the same type of abuse on another adult, they often get heavier sentences than what they would with abusing a child with similar injuries ... we say that is unjust.

“The Victorian law, as it stands, provides no guidance to parents as to what is reasonable and what is unreasonable. So it is left up to the courts and judges and magistrates. And there have been occasions when they have found that hitting children with sticks and leaving bruises have been reasonable in the name of discipline.”

The partnership is striving, ideally, for the defence of “reasonable chastisement” to be abolished under Victorian law – giving children the same protection afforded to adults.

Ms Nicholls said that while this would technically ban smacking, in reality, police would not prosecute parents who gave a light smack that had not left a mark on a child.

The proposed move would go further than in New South Wales where parents have the right to physically punish their children, but not if a part of the body is harmed for more than a short period or if it is above the shoulders. The Tasmanian government is investigating the issue and has referred the matter to the Tasmanian Law Reform Institute.

Thirteen countries, mainly in Europe, have in some form banned physical punishment of children.

Ms Nicholls said the proposed Victorian changes were not an anti-smacking crusade.

“We are trying to ban harming children,” she said. “It is not about criminalising what we have called a smack ... It is about protecting children from physical harm, exactly the same as with adults.”

Ms Nicholls said a first step towards abolishing the defence, which could be more palatable to politicians, could involve legislation similar to New South Wales which defines appropriate discipline by parents or carers.

But an initial attempt to engage Victorian politicians on the issue fell flat.

The Australian Childhood Foundation recently sent letters to 178 state and federal Victorian politicians, asking for views on the physical punishment of children. Just 16 replied.

Foundation CEO Joe Tucci said that of those replies, 14 “handballed” the issue to state Attorney-General Rob Hulls. Only two MPs supported propositions in the survey.

Mr Hulls’ spokeswoman, Kate Leonard, said the Attorney-General’s department would be willing to meet with Mr Tucci after it received a firm proposal.

The government was happy to consider recommendations made by the Model Criminal Code Officers Committee (MCCOC), which were similar to current Victorian law, and also to look at other states’ legislation on the issue, she said.

In 1998 the MCCOC, which is made up of representatives from nearly all Australian jurisdictions including Victoria, recommended that if a parent assaults a child by striking in any way, it should be an offence unless the parent has acted in accordance with the proposed statutory defence.

It recommended that a parent might “lawfully correct” a child if this was “reasonable in the circumstances for the purposes of the discipline, management or control of the child” and did not involve harm through the use of a stick, belt or other object (other than an open hand) and did not cause harm that lasted for more than a short period.

“From our perspective, it’s important that the law strikes an appropriate balance between disciplining children and the need to protect children from physical abuse,” she said.

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