Right: The United Nations Committee on the Rights of the Child includes, in its definition of corporal punishment, forcing a child to sit in an uncomfortable position for a long period.
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Background information
The Victorian Charter of Human Rights
The Victorian Charter of Human Rights Act 2006 includes as a right to 'Protection from torture and cruel, inhuman or degrading treatment.' There are those who are concerned that the corporal punishment of children could be regarded as 'degrading treatment' and thus parents' capacity to use physical punishment on their children could be challenged under the Act.
The Act also includes the provision that 'Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.' There are those who consider this protection could also be used to challenge parents' use of corporal punishment on their children.
Definition of corporal punishment
Corporal punishment is defined as the use of physical force towards a child for the purpose of control and/or correction, and as a disciplinary penalty inflicted on the body with the intention of causing some degree of pain or discomfort, however mild. Punishment of this nature is referred to in several ways, for example: hitting, smacking, spanking, and belting.
Although most forms of corporal punishment involve hitting children with a hand or an implement (such as a belt or wooden spoon), other forms of corporal punishment include: kicking, shaking, biting and forcing a child to stay in uncomfortable positions (United Nations Committee on the Rights of the Child, 2006). The desired outcome of physical punishment is child compliance with adult directives.
Corporal punishment and the law
The degree of physical punishment that a parent or carer can use with a child is subject to legal regulation in Australia. In most states and territories, corporal punishment by a parent or carer is lawful provided that it is carried out for the purpose of correction, control or discipline, and that it is "reasonable" having regard to the age of the child; the method of punishment; the child's capacity for reasoning (i.e., whether the child is able to comprehend correction/discipline); and the harm caused to the child.
Corporal punishment that results in bruising, marking or other injury lasting longer than a 24-hour period may be deemed to be 'unreasonable' and thus classified as physical abuse. As an example, the New South Wales Crimes Act 1900 establishes that corporal punishment is unreasonable if the force is applied to any part of the head or neck of a child or to any other part of the body of a child in such a way as to be likely to cause harm to a child that lasts for more than a short period. Corporal punishment that is unreasonable in the circumstances may lead to intervention by police and/or child protection authorities.
Corporal punishment by Australian parents under the law
In relation to corporal punishment by parents, it remains lawful for parents in all jurisdictions to use reasonable corporal punishment to discipline their children. New South Wales is the only state to have made legislative amendments concerning corporal punishment by parents. In 2001, New South Wales introduced the Crimes Amendment (Child Protection Physical Mistreatment) Act. The Act states that physical punishment should not harm a child 'more than briefly' and specifies the parts of a child's body that can be subject to force. While the New South Wales amendment sought to constrain parental use of corporal punishment, it does not ban the use of corporal punishment altogether.
In some jurisdictions a parent's right to use corporal punishment is provided for in legislation, for example New South Wales, while in others it is provided for by the common law ("judge-made law") for example Victoria. All Australian states and territories condone (in principle) the use of force by a parent, by way of correction, towards a child.