Call to change smack laws
By Helen Kempton, November 21, 2010

TASMANIA'S new Commissioner for Children wants the State Government to amend the law governing the physical chastisement of children in the wake of another abuse trial which raised legal questions about what constitutes "reasonable" discipline in the home.

New Children's Commissioner Aileen Ashford wants changes to laws.

Tasmania is the only state which gives parents the explicit right to physically correct a child using "any force that is reasonable in the circumstances".

However, community views about what is reasonable vary significantly.

The Commissioner for Children says the State Government needs to look at amending the legislation to make the safety and wellbeing of children paramount.

Commissioner Aileen Ashford said the issue had not progressed since 2003 when a Tasmanian Law Reform Institute report found the state's existing law was unclear.

"The institute put up two options for reform: to prohibit the use of physical punishment or clarify the law by further defining what type and/or degree of punishment is reasonable or unreasonable," Commissioner Ashford said.

"I urge the Government to seriously consider amendments to the legislation.

"This is particularly important as Australia is a signatory to the UN Convention on the Rights of the Child, which clearly obliges member states to adopt measures to protect children from all forms of violence."

The UN has already recommended that all corporal punishment and all other "cruel and degrading forms of punishment" of children be stopped.

On Friday a Supreme Court jury in Burnie found an Ulverstone couple who introduced a corporal punishment regime to control their children guilty of ill-treating their three-year-old daughter.

The court was told they hit the toddler with a stick, with plastic pipe, made her keep her nose to a "dot" on the wall, left her in cold water for extended periods and left her in wet and soiled bed sheets as a punishment for wetting the bed.

The court was told she was emaciated when taken to hospital with a head injury in July 2008.

The Government considered amending the law back in 2003.

At the time, political commentator Richard Herr conducted a telephone survey to gauge community attitudes about smacking.

Overwhelmingly, the 1000 Tasmanians interviewed did not support a government proposal to ban parents punishing their children by smacking.

Tasmanian parents stated strongly they did not want the option of corporal punishment put out of their legal reach.

Dr Herr found four out of five Tasmanians thought smacking one's child was permissible at least in certain circumstances.

However, the survey did not test what these circumstances were.

A street poll of community opinion conducted by the Sunday Tasmanian this week showed views on physical discipline varied markedly between Generation Y and their older counterparts, particularly those with children.

The parents questioned said a good smack was a reasonable form of discipline but they all agreed that using sticks or belts could be "going too far" and even abuse.

The two young people questioned both felt smacking was not OK in any circumstances.

The critical issue for Tasmanian lawmakers is to define the grey area between child abuse and a ban on any corporal punishment.

During the Burnie trial, Greg Richardson, defence counsel for the accused man, asked the jury to deem what constituted ill-treatment and question if the discipline regime introduced by the couple as they tried to control six children in their three-bedroom home was outside the bounds of what society thought acceptable.

He said the couple had exhausted all other options of controlling their behaviour. Time out, reward cards and taking away treats had not worked and the couple resorted to physically chastising the children.

"You have to ask if the discipline used is so far outside the realm of what society deems reasonable to end up in criminal charges," Mr Richardson told the jury.

The couple had been visited by Department of Human Services in their home and the department knew a stick was being used to try to control the behaviour of the youngest children.

Former department worker Darren Tomlinson told the court he had told the couple corporal punishment was not effective.

He said the couple tried other options but went back to physical discipline as a last resort.

"Reasonable force" has been used as a defence in some high-profile legal cases in Tasmania.

In 1992, the reasonable chastisement defence was used to defend serious physical attacks on two children.

The court was told the children were chastised with cattle prods, stockwhips, dog leads, hearth brushes, shearing belts and sticks, and had been tied up in a shed like a dog.

Former Tasmanian Greens leader Peg Putt, who introduced a Bill to ban the use of corporal punishment in Tasmanian schools in 1999, said it was no longer appropriate to use harsh corporal punishment at home.

Ms Putt said child abuse had been excused in Tasmania in the past as strict corporal punishment.

"That is not OK," she said.

"People tend to freak out at the idea that legislating against corporal punishment in the home will mean parents can no longer give their child a quick smack to stop them running into the road.

"This needs to be addressed by Parliament, but politicians shy away from the issue because there are such varying views in society about what is appropriate and what constitutes abuse.

"I am not unsympathetic to the fact that some parents have trouble coping. But that is not an excuse for abuse.

"If parents are not coping they need to be helped."

Dr Herr said he could not say with certainty that attitudes toward corporal punishment would have changed between 2003, when he conducted his poll, and today.

But he said community awareness of the potential consequences of abusive corporal punishment was higher today.

In 2007, lobby group End Physical Punishment of Children (EPOCH) was established and its patron former Chief Justice of the Family Court Alastair Nicholson said in his first speech in Hobart that smacking was used by some as a euphemism for child abuse and assault.

EPOCH was headed by former Tasmanian Children's Commissioner Patmalar Ambikapathy, who also had strong views about physical punishment in the home.

Mr Nicholson called for political leadership to change community attitudes and for the law which gives Tasmanian parents permission to discipline their children by the use of force to be repealed.

He also wanted to remove the common law defence of "reasonable chastisement".

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