So much for the scaremongering about “uncertainty” in the current section 59 of the Crimes Act coming from those advocating corporally punishing children. The Human Rights Commission has released a legal opinion condemning the previous law for its uncertainty and backing the current law.
Most significantly, the Commission’s legal opinion states:
Critics of the legislation consider that the law is now so uncertain that many parents don’t know what they can or can’t do and risk prosecution for every slap, no matter how trivial, administered to a child in their care.
Before it was amended, under s.59 parents, or those acting in loco parentis, were justified in using force “by way of correction” towards a child if the force was “reasonable in the circumstances”. The reasonableness of the force was a question of fact. Section 59 now allows parents (or someone acting in that role) to use reasonable force for a variety of purposes including (inter alia) the prevention of harm to the child or others or to perform the normal daily tasks that are incidental to good care and parenting. It does not, however, permit the use of force for the purpose of correction. There is also an avoidance of doubt provision, which confers discretion on the Police whether or not to prosecute if the offence is considered so inconsequential that there is no public interest in proceeding with a prosecution.
Legal certainty is particularly important in human rights law. Any legal constraints on a right must be sufficiently “accessible, precise and foreseeable” so that individuals are aware of the consequences of their actions. The guiding principle is that individuals must be able to regulate their conduct with a reasonable degree of certainty as to the legal consequences of acting one way rather than another. The earlier original version of s.59 which stipulated that force must be “reasonable under the circumstances” provided any better guidance than the present legislation. The subjectivity that inevitably dictated what parents considered permissible and the different interpretations of what is “reasonable” meant that parents were acquitted of disciplining their children even when they had used belts, hose pipes and pieces of wood to do so.
While the only way to import greater certainty would be to abolish s.59 entirely, even this may not be the complete answer since it will always be open to the police to decide whether or not to prosecute at common law. The Commission prefers a provision such as the amended s.59 which favours the child as the more vulnerable party.
Children are completely dependent on adults to give effect to their rights. Society has a duty to ensure those rights are respected.
Children have the same right to respect for their human dignity and physical integrity as everybody else including the right not to be subject to violence in the guise of corporal punishment.
While parents have responsibilities and duties, as well as the right, to provide appropriate direction and guidance, the wording of s.59 does not remove those rights, responsibilities or duties, but rather shapes how they should be exercised.
Another good reason to Vote Yes.