Scrutiny of Acts and Regulations Committee

Alert Digest No 7 of 2008

Ministerial Correspondence

[Table of Contents]


Children’s Legislation Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 8 April 2008 by the Hon. Maxine Morand MLA. The Committee considered the Bill on 5 May 2008 and made the following comments in Alert Digest No. 5 of 2008 tabled in the Parliament on 6 May 2008.

Committee’s Comment

Charter Report

Freedom of religion or belief – Cultural rights – Discipline of young children by family day carers – Corporal punishment – Discipline which is unreasonable in the circumstances – Whether reasonable limit

Charter s.14(2) provides that a person ‘must not be restrained in a way that limits his or her freedom to have or adopt a religion or belief in observance, practice or teaching.’ Charter s. 19(1) provides that a person of a distinct cultural or religious background ‘must not be denied the right to enjoy his or her culture’ or to ‘practice his or her religion’. Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that clause 12(3) (inserting a new section 28(3) into the Children’s Services Act 1996) makes it an offence for a family day carer to subject a child being educated or cared for by the carer to: (a) any form of corporal punishment; or (b) any discipline which is unreasonable in the circumstances.

The Committee also notes that clauses 12(1) and 12(2) (amending existing s. 28 of the Children’s Services Act 1996) increase the penalty for equivalent offences that apply to proprietors and staff of children’s services.

The Committee observes that the House of Lords has held that a law limiting how children may be disciplined by teachers or carers may engage the right to freedom of religion of parents who believe that such discipline is ‘divinely-ordained in the best interests of the child’: R v. Secretary of State for Education and Employment ex parte Williamson [2005] UKHL 15. The Committee considers that clause 12 may engage the Charter right of Victorian parents who hold beliefs about discipline not to have those beliefs interfered with or to be denied the right to practice those beliefs.

The Committee also observes that the House of Lords held, in relation to a similar ban on institutional corporal punishment:

[T]he means chosen to achieve this aim are appropriate and not disproportionate in their adverse impact on parents who believe that carefully-controlled administration of corporal punishment to a mild degree can be beneficial, for this reason: the legislature was entitled to take the view that, overall and balancing the conflicting considerations, all corporal punishment of children at school is undesirable and unnecessary and that other, non-violent means of discipline are available and preferable. On this Parliament was entitled, if it saw fit, to lead and guide public opinion. Parliament was further entitled to take the view that a universal ban was the appropriate way to achieve the desired end. Parliament was entitled to decide that... a universal ban is preferable to a selective ban which exempts schools where the parents or teachers have an ideological belief in the efficacy and desirability of a mild degree of carefully-controlled corporal punishment.

(R v. Secretary of State for Education and Employment ex parte Williamson [2005] UKHL 15, [50])

The Committee considers that clause 12, to the extent that it bans corporal punishment, is a reasonable limit under Charter s. 7(2) on the rights of parents who believe in the use of such punishment.

However, the Committee is concerned that the additional ban in clause 12 on ‘any discipline which is unreasonable in the circumstances’ may be too vague to be considered a ‘law’ limiting a human right under Charter s. 7(2). The Committee observes that the European Court of Human Rights has remarked that a provision that limits a human right:

…cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

(Sunday Times v UK [1979] ECHR 1, [49])

The Committee will seek further information from the Minister as to:

    1. What types of conduct fall within the prohibition on ‘any discipline which is unreasonable in the circumstances’ in existing ss. 28(1)(b) & (2)(b) and new section 28(3)(b)?

    2. What information is available to proprietors and staff of children’s services and family day carers that will enable them to assess whether or not a particular act falls within the meaning of ‘discipline’ and whether or not a particular type of discipline is ‘unreasonable in the circumstances’?

Pending the Minister’s response, the Committee draws attention to clause 12.

Minister’s Response

Thank you for your letter of 7 May 2008 outlining the Scrutiny of Acts and Regulations Committee’s comments in relation to the Children’s Legislation Amendment Bill 2008 (the Bill).

In the extract from the Alert Digest No.5 of 2008 you sought clarification as to clause 12 of the Bill as it relates to the discipline of young children being cared for by children’s services and family day carers. Your concern that the ban in clause 12 on ‘any discipline which is unreasonable in the circumstances’ may be too vague to be considered a ‘law’ limiting a human right under the Charter has been carefully considered and a response has been prepared to address the issues cited in the two specific questions you have posed, that is

    1. What types of conduct falls within the prohibition on ‘any discipline which is unreasonable in the circumstances’ in existing sections 28(1)(b) and (2)(b) and new section 28(3)(b) of the Children’s Services Act 1996 (Act)?

    2. What information is available to proprietors and staff of children’s services and family day carers that will enable them to assess whether or not a particular act falls within the meaning of ‘discipline’ and whether or not a particular type of discipline is ‘unreasonable in the circumstances’?

Legal issue

In relation to the expression 'prescribed by law' in the European Convention on Human Rights, the European Court of Human Rights has said that the law must be adequately accessible and formulated with sufficient precision to enable the citizen to regulate his conduct. In relation to the second requirement the Court has stated:

'he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.': The Sunday Times v The United Kingdom, 2 EHRR 245.

The potential limit raised by the Committee relates to disciplinary measures that may be required by a person's religious belief, but which may be prohibited by the provision. The Committee does not identify any specific religious practice in relation to the discipline of children in respect of which the Committee considers there may be some doubt as to whether it would be regarded as 'unreasonable in the circumstances'. Identifying all such practices, assuming any exist, would be an impossible task and a flexible provision is required in order to ensure effective protection of children.

Types of conduct

There has been an obligation on proprietors and staff members of children’s services not to subject any child being cared for or educated by the service to unreasonable discipline since the Children’s Services Act (Act) came into force on 1 June 1998. From 25 May 2009 it is intended that this obligation will also apply to family day carers.

‘Discipline’ is defined as ‘punishment inflicted by way of correction and training (Macquarie dictionary, 4th Ed.) The term ‘discipline’ is well understood by the sector to mean conduct used to manage children’s behaviour, particularly that with a punitive or corrective element. Regulation 20(2)(e) of the Children’s Services Regulations 1998 (Regulations) requires that the proprietor ensure that the policy of the service with regard to behaviour management is available for inspection at the children’s service. To formulate this policy, proprietors of children’s services need to consider methods of managing behaviour or ‘disciplining’ children which may be used by the staff members directly involved in caring for and educating the children at the service.

The reasonableness of any disciplinary measures will always depend on the circumstances (excepting corporal punishment, which is prohibited outright). For example, the physical restraint of a child may be reasonable when the child’s safety or the safety of others is at risk from the child’s behaviour, but not in other circumstances. Flexibility is necessary in this requirement to allow staff to respond appropriately in emergency and high-risk situations.

Reasonable disciplinary procedures guide children to behave appropriately in a way which respects children’s dignity and their stage of development, and does not compromise their safety. Discipline would usually be considered unreasonable if it involved leaving a child unsupervised by staff, including by using ‘time out’; excluding a child from the children’s service; or humiliating, embarrassing or frightening a child.

Information available

    • Children’s Services Licensing Operational Guide – this guide was published by the Department of Human Service in 1998, to assist everyone who owns, operates, manages or works in a children’s service to comply with the Act, and to suggest good practices and procedures. The guide contains a section on behaviour guidance, including information about responding to ongoing unacceptable challenging behaviour. The guide points out a number of disciplinary measures which would in most circumstances be considered unreasonable, including ‘time out’, leaving a child unsupervised by staff, and exclusion from the service, as well as suggesting acceptable practices. The guide also contains information about developing a behaviour guidance policy, and provides a sample policy. A revised version of this guide will be published with the new regulations in May 2009.

    • Behaviour management policy – All services are required to have a behaviour management policy, which is expected to provide a strategy for responding to children’s inappropriate or challenging behaviour in a way that is reasonable and that ensures parental / guardian involvement, and where appropriate the involvement of other professionals. A centre’s behaviour management policy would be expected to give clear guidance to staff as to the reasonableness of disciplinary procedures in different circumstances. It is expected that, from 25 May 2009, family day care services will also be required to have a behaviour management policy, which will provide guidance to family day carers in this area.

    • Information from the Department’s staff, who are authorised under the Act to monitor and provide support, assistance and information to the sector, indicates they adopt a graduated response to breaches of Section 28 of the Act. For example, if an authorised officer observed potentially unreasonable disciplinary practices during a monitoring visit, they would in most cases initially work with the proprietor and/or staff member to attempt to improve behaviour management at the service. Prosecution of a proprietor or staff member under section 28 is only one of a range of sanctions available to the Department, and would usually only be considered in cases of repeated or extremely unreasonable discipline.

    • National Standards for Family Day Care – these standards provide guidance for family day carers on how interactions with children in their care should be managed. Standard 3.3.2 states that the dignity and rights of the child must be maintained at all times, which means using child management techniques which do not include physical, verbal or emotional punishment (including punishment which humiliates, frightens or threatens a child). Further, when isolation is used as a method of managing unacceptable behaviour, the standards state that the isolation, whether on a chair or in a room, should only be for two or three minutes.

    • Practice notes – a suite of 6 practice notes about behaviour guidance are being developed and will be finalised and available to the sector prior to section 28(3)(b) coming into force. This includes a practice note relating to discipline of children, in which disciplinary practices which the Department considers unreasonable in most circumstances is discussed, including ‘time out’ and restraint. Other unreasonable practices such as yelling, withholding food and drinks, and dragging a child, will be listed. The suite also includes a practice note on acceptable strategies to guide children’s behaviour, and one on developing a behaviour guidance policy.

As is evident from the information above the concept of ‘discipline which is unreasonable in the circumstances’ is well understood by the children’s services sector and has been well supported with resources to guide staff to manage children’s unacceptable behaviour appropriately.

Taken as a whole there is enough information and guidance to allow persons operating in the children’s services sector to understand what is and what is not reasonable when disciplining young children. I therefore feel that the Bill should go forward in its current form without amendment to clause 12 or the related provisions in Section 28 of the Act.

I trust this addresses the concerns of the Committee and I thank you for drawing this matter to my attention.

Maxine Morand MP
Minister for Children and Early Childhood Development

28 May 2008

The Committee thanks the Minister for her response.

Committee Room
6 June 2008

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