Scrutiny of Acts and Regulations Committee
Alert Digest No 7 of 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.
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  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:
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:
The Committee will seek further information from the Minister as to:
Pending the Minister’s response, the Committee draws attention to clause 12.
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
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.
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
28 May 2008
The Committee thanks the Minister for her response.