Corporal punishment in New South Wales: A call for repeal of section 61AA

Background

The reasonable chastisement defence was adopted from English common law in the 1860 case of R v Hopley where the right of parents to physically punish their children was recognised, provided that the punishment was moderate and reasonable. Cockburn J made the following oft-quoted remarks:

[A] parent or a schoolmaster […] may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted beyond the child’s powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to the life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law, and if death ensues it will be manslaughter. ¹²

This quote by Justice Cockburn clarifies that physical punishment is lawful, unless it is administered ‘for the gratification of passion and rage’, which implies that physical punishment ought to be administered when not enraged, and as calmly as possible. If corporal punishment is administered in anger, this will be regarded as unreasonable. ¹³ Furthermore, the punishment should fit the crime. Punishment both in the number of strokes and the degree of the force ought to be commensurate to the severity of misbehaviour. If the two are not equally balanced, then the punishment will be deemed unreasonable. If the punishment lasts longer than what the child can endure, the punishment is unreasonable, or if it is inflicted with an implement not suited to the task, it will be unreasonable. ¹⁴

What stands out is the arbitrariness and subjectiveness in the approach to the ‘reasonable’ infliction of corporal punishment. The parent decides the level of force, the number of strokes and the length of time of the punishment. It may vary from day to day, depending on the mood of the parent doling out the punishment. There is no consistency. This arbitrariness makes the punishment unreasonable from the outset. Furthermore, as much corporal punishment happens behind closed doors in homes often presumed to be safe, it is difficult to determine both the prevalence and reasonableness of the punishment meted out. There is no foolproof objective way to measure what is ‘reasonable’, and what is not.

Section 61AA: Legalised violence

In an attempt to clarify much of the vagueness and arbitrariness of the defence, in 2002, the NSW government inserted the defence of lawful correction under s 61AA into the Act to codify the common law. ¹⁵ Subsections 61AA(1)(a) and (b) and sub-ss 61AA(2)(a) and (b) introduced specific limitations to the application of the common law defence of reasonable chastisement, which read as follows:

61AA DEFENCE OF LAWFUL CORRECTION

This section limits the application of the defence of lawful correction to be: for a child; for the purpose of punishment; and administered by a parent or legal guardian.

At the time of debating the suitability of the legislation, the NSW Attorney General remarked that the provision seeks ‘to ensure that children are protected from unreasonable punishment, without limiting the ability of parents to discipline their children in the appropriate manner …’. ¹⁶ The NSW government’s view was that ‘children should not be immune from ordinary parental discipline when the situation requires it.’ ¹⁷ Furthermore, the view was held that ‘sensible parents’ should have a valid defence but that child abusers should not. ¹⁸ The implication, it seems, is that ‘sensible parents’ will not exceed reasonable limits to violence as a means of disciplining their children. Subsection 61AA(1)(b) further limits the application of the defence with a focus on the characteristics of the child to which the physical force was applied. Therefore, corporal punishment is lawful (albeit in a restricted fashion) in the home if administered by parents or persons in loco parentis (acting for a parent).

Section 61AA(8) required the NSW Attorney General to review s 61AA to determine whether the provisions in this section continue to be appropriate for securing the policy objectives. The policy objectives were to: (i) ensure that children are protected from unreasonable punishment, without limiting the ability of parents to discipline their children appropriately; (ii) ensure that sensible parents have a defence but that child abusers do not; and (iii) codify the NSW government’s belief that excessive force is never reasonable, irrespective of whether the person administering the force uses an object. ¹⁹ This review was concluded in 2010. The NSW Attorney General recommended that the status quo should be maintained under the current NSW laws. ²⁰

However, it should be noted that discipline need not be physical to be effective. Gershoff and Grogan-Kaylor have shown that physical punishment is less effective than non-physical punishment. ²¹ Afifi et al. found in a 2016 study that physical punishment is associated with an increased likelihood of attempted suicide, alcohol abuse and drug use in adulthood. ²² Furthermore, the study found a strong link between severe physical punishment and physical and emotional abuse. ²³ This study, furthermore, indicates that physical punishment in childhood is linked to an increased likelihood of mental health and behavioural problems in adulthood. ²⁴

It should also be noted that corporal punishment is increasingly recognised internationally as physical abuse and a violation of children’s rights. ²⁵ Hence, the global push to eliminate corporal punishment. ²⁶ The CRC was particularly critical of this type of legislation in s 61AA, which effectively legitimises the assault of children under the guise of legislative reform. ²⁷ In General Comment No 8, it noted that

in many States there are explicit legal provisions in criminal and/or civil (family) codes that provide parents and other carers with a defence or justification for using some degree of violence in ‘disciplining’ children. For example, the defence of ‘lawful’, ‘reasonable’ or ‘moderate’ chastisement or correction has formed part of English common law for centuries, as has a ‘right of correction’ in French law. … The Committee emphasizes that the Convention requires the removal of any provisions (in statute or common - case law) that allow some degree of violence against children […] in their homes/families or in any other setting. ²⁸

As General Comment No 8 preceded the NSW review by some 4 years, it is both surprising and unfortunate that the government ultimately decided to keep the status quo rather than reform the law.

What is so ‘reasonable’ about reasonable chastisement?

Although NSW attempted to clarify the application of lawful correction in legislation, there are still some provisions that are unclear and vague. Section 61AA, for instance, does not define the term ‘reasonable’. The NSW Attorney General affirmed, during the Parliamentary Debates, that, ‘[d]etermining what is reasonable in all the circumstances requires consideration of various factors, such as the nature of the child’s misbehaviour, the type of force used, and the child’s age and maturity.’ ²⁹

Subsection 61AA(1)(a) limits the defence to a parent of the child or a person in loco parentis. As corporal punishment is outlawed in NSW schools and care facilities, the presumption is that the defence will be limited to parents (step and foster parents included), and family members like aunts, uncles and grandparents. Furthermore, sub-s 61AA(1)(b) states that personal attributes such as the child’s age, health and level of maturity should be taken into account, as well as any other attributes. It is unclear whether this section implies that very young children and much older children should not be physically punished. Why else would the age of a child matter? If this is the case, this section should clearly state that the defence of reasonable chastisement should be limited, for example, to children between two and 13 years of age as has occurred in the Canadian Supreme Court. ³⁰ The question then emerges as to whether it would be unreasonable to physically punish a child who could formulate an argument clearly and coherently, instead of a child who does not understand what they did wrong due to a lack of maturity. Which of the two is the more unreasonable: the child who is too young to understand the message that the parent meting out the physical punishment is trying to convey, or the child who is old enough to understand the nuances of physical as opposed to non-violent punishment?

Section 61AA(2) states the circumstances in which the administering of corporal punishment would be regarded as unreasonable: to any part of the head or neck of the child, or any other part of the body of the child in such a way that the punishment (blows or strikes) is likely to cause harm that lasts for more than a short period. The Act does not give a clear indication of what is meant by ‘a short period’. Because the law is unclear, it can offer parents no guide on what society views as acceptable and appropriate physical punishment. The law only states that the punishment must be ‘reasonable’. The term is vague and indeterminate.

Section 61AA(3) states that the instances where force is considered unreasonable are not limited to those mentioned in s 61AA(2). In the 1955 case of R v Terry – which sets out the current law applicable in Victoria regarding the defence of reasonable chastisement – the defendant was charged with the murder of an infant girl of 19 months due to blows that she received from the defendant. ³¹ The Supreme Court of Victoria held that if a child is incapable of understanding and appreciating the correction, they should not be subjected to physical punishment. ³² Indeed, if a child is mature enough to understand what they did wrong, then it stands to reason that one could discuss the perceived transgressions and consequences with the child, which will eliminate the need for physical punishment regardless of the child’s age. The court stated that the punishment must:

(i) be moderate and reasonable;

Furthermore, the timing between the misbehaviour and the punishment, and the repetition of the punishment, is also relevant. ³⁴

Actions and implements that have been held to be unreasonable include the following: ³⁵

a hard blow with a closed fist; ³⁶

The word ‘unreasonable’ is imprecise and does not provide clear guidance as to what is unlawful and what is not. ⁴⁰ It is a vague term that means different things to different people depending on the circumstances. ⁴¹ Some may argue that a light tap on the buttocks is reasonable, while others might regard smacking with a wooden spoon or beating with a leather strap or broom handle acceptable. ⁴²

Because the law does not give clear guidance regarding what is considered acceptable physical punishment, it may be easier for punishment that begins with reasonable force to escalate to unreasonable physical punishment in the heat of the moment. ⁴³ It has been noted that: ‘So long as the law permits physical punishment of children subject to the proviso of unreasonableness, the law will be obliged to give such genuine beliefs mitigatory weight.’ ⁴⁴ Corporal punishment is morally unacceptable because it denies children the right to physical integrity in the same way that it is guaranteed to adults. Furthermore, allowing corporal punishment to be administered breaches international human rights treaties and obligations. ⁴⁵ The Canadian Criminal Code provides for the defence of reasonable correction by teachers and parents, stating:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. ⁴⁶

The Canadian provision goes further in that it provides the defence to schoolteachers but also does not define ‘reasonable force’. It is worth noting that the Canadian provision does not provide criteria as to what is acceptable physical force in the same way that s 61AA does. However, the Canadian Supreme Court recognised that the term ‘reasonable force’ ought to be clearly defined and set out a range of inappropriate conduct:

(1) Corporal punishment of children under two or teenagers are not permitted.

It has been argued that many Canadian parents saw this decision as permission to use corporal punishment rather than limiting the scope of s 43. ⁴⁹

Convention on the Rights of the Child

The Convention ⁵⁰ was developed as a result of the 1979 International Year of the Child. ⁵¹ When Australia ratified the Convention in 1990, every child in this country became entitled to the protections set out in the UN Convention on the Rights of the Child. ⁵² Article 19 (1) notes that States Parties should take appropriate steps to protect children from mental and physical violence, ill-treatment and exploitation by parents and persons in loco parentis.

Article 19 is described as the ‘core provision’ in the protection model of the Convention. ⁵³ It is complemented by other provisions in the Convention which also protect the mental and physical well-being of children, such as the prohibition against torture and cruel, inhuman and degrading treatment or punishment in article 37(a). It is argued here that a law which aligns with articles 19 and 37(a) of the Convention is preferable to a law that legalises physical violence against children in the way exemplified by s 61AA. Furthermore, in 2006, the CRC adopted General Comment No 8, which addressed the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment. ⁵⁴

Ratification of the Convention required the signatory State to ensure that its laws, as they impinge on the lives of children, are aligned with the rights set out in the Convention. ⁵⁵ The incorporation of the provisions of the Convention into domestic legislation has, at best, been a piecemeal endeavour, and, at worst, has been blatantly ignored in Australia. ⁵⁶ The government has acknowledged that it has an obligation to comply with the Convention under the Human Rights and Equal Opportunities Act 1986 (Cth). ⁵⁷ This failure to implement the Convention means that Australian children lack many basic protections and human rights that other groups have long taken for granted. ⁵⁸

Conclusion

Due to their age, it is lawful to assault children provided it is ‘reasonable’ and done to correct misbehaviour, so says s 61AA of the Crimes Act 1900 (NSW). However, international instruments make it clear that no amount of violence to children is ‘reasonable’.

Australian scholars observe that decision-makers are tasked with reflecting community standards in their decision-making. ⁵⁹ This requires the substantial use of discretion, which has led to the appearance of inconsistency. ⁶⁰ Furthermore, it is arguably unclear as to the nature of the message that the law conveys to the community concerning the rights and responsibilities of parents and carers if administering corporal punishment. At the same time, it is unclear as to what the law is communicating to individual parents regarding acceptable physical force. ⁶¹ However, none of the issues just mentioned is as detrimental as what the law says to the child and the value of their human rights when faced with physical violence. This arbitrariness and vagueness are contrary to the principles of the rule of law. For that matter, parents and children (as well as law enforcement and the judiciary) require certainty, such that the law applies consistently to all citizens.

Full prohibition of corporal punishment in Australia is possible. It would prove efficacious to begin by removing the defence of lawful correction from the Crimes Act 1900 (NSW). In this way, we will be one step closer to ridding all Australian jurisdictions of the legalised violence against children.