Briefing on Australia for the Committee on the Rights of
Persons with Disabilities, 9th session – April 2013
From Sharon Owen, Research Coordinator, Global Initiative
info@endcorporalpunishment.org
This briefing describes the legality and practice of corporal punishment of
children in Australia, in violation of children’s right to protection from
corporal punishment and other cruel or degrading forms of punishment. In
light of the particular vulnerability of children with disabilities to corporal
punishment by adults, the jurisprudence of the UN treaty bodies, and the
importance of eradicating this form of violence given by the UN Secretary
General’s Study on Violence against Children, we hope the Committee on the
Rights of Persons with Disabilities will:
 include the issue of corporal punishment in its List of Issues for
Australia, in particular asking what steps have been taken to ensure
that corporal punishment of children is explicitly prohibited in law;
 urge the Government of Australia, in its concluding observations on the
initial report, to ensure that federal and state legislation explicitly
prohibits corporal punishment in the home, schools (mainstream and
segregated) and all other settings and that awareness raising
campaigns, the promotion of positive, non-violent discipline and other
measures are taken to fully implement the prohibition.
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1 The right of children with disabilities not to be subjected to corporal
punishment
1.1 The Convention on the Rights of Persons with Disabilities confirms that children
with disabilities should enjoy all human rights and fundamental freedoms on an
equal basis with other children (art. 7). The Convention also states that all
persons have the rights to freedom from torture or cruel, inhuman or degrading
treatment or punishment (art. 15), to freedom from exploitation, violence and
abuse within and outside the home (art. 16) and to respect for their physical and
mental integrity (art. 17). The jurisprudence of treaty monitoring bodies, led by
the Committee on the Rights of the Child monitoring the Convention on the
Rights of the Child, is clear that these rights put an obligation on states parties
to prohibit and eliminate all corporal punishment of children, including within the
family.
1.2 As confirmed in the UN Secretary General’s Study on Violence against
Children, children with disabilities are particularly vulnerable to violence,
including corporal punishment, and corporal punishment is a significant cause of
disability among children.1 In examining implementation of the Convention, we
hope the Committee on the Rights of Persons with Disabilities will emphasise
that children with disabilities should be protected by law from corporal
punishment – violence inflicted in the name of “discipline” or punishment – in all
settings, including the home, schools and other institutions.
2 Australia’s initial report (CRPD/C/AUS/1) and the issue of corporal
punishment
2.1 Australia’s initial state party report to the Committee on the Rights of Persons
with Disabilities provides brief information on measures taken to ensure persons
with disabilities are free from exploitation, violence and abuse (paras. 87-94), on
a number of aspects relating to protecting the integrity of the person (paras. 95102) and on the rights of children with disabilities (paras. 197-201). However,
the report makes no reference to corporal punishment – the violence that may
be inflicted on children with disabilities in the guise of “discipline” – nor to the
fact that such violence is lawful throughout Australia.
3 Legality of corporal punishment of children in Australia
3.1 Corporal punishment of children in Australia is unlawful as a sentence for crime
but it is not prohibited throughout the state party in schools, penal institutions or
care settings; within the family home it is lawful in all states and territories.
3.2 Corporal punishment in the home is regulated at state level, and is lawful
throughout Australia under the right of “reasonable chastisement” and similar
provisions in the following laws: Northern Territory Criminal Code Act s27;
1
Pinheiro, P. S. (2006), World Report on Violence against Children, Geneva: United Nations. See also Krug
E. G. et al (eds) (2002), World Report on Violence and Health, Geneva: World Health Organisation. Further
information is available from the Global Initiative to End All Corporal Punishment of Children,
www.endcorporalpunishment.org, email info@endcorporalpunishment.org
2
Queensland Criminal Code Act 1899, s280; South Australia Criminal Law
Consolidation Act 1935, s20; Tasmania Criminal Code Act 1924, s50; Western
Australia Criminal Code 1913, s257, and in common (case) law in Australian
Capital Territory and Victoria. In New South Wales, according to s61AA of the
NSW Crimes Act as amended in 2001, physical punishment by a parent or
caregiver is considered unreasonable if the force is applied to a child’s head or
neck, or the force is applied to any part of the body in such a way as to cause,
or threaten to cause, harm to the child which lasts more than a short period; in
other cases the defence of “lawful correction” applies.
3.3 Corporal punishment in schools is regulated at state level. It is prohibited in
government and independent schools in Australian Capital Territory, New South
Wales, Tasmania and Victoria. It is prohibited in government schools in Western
Australia, but the use of force “by way of correction” is lawful for schoolteachers
under s257 of the Criminal Code Act and provisions for caning of boys in the
Country High School Hostels Authority Act Regulations 1962 have yet to be
repealed. It is not prohibited in Queensland, the Northern Territory or South
Australia.
3.4 In the penal system, corporal punishment is prohibited as a sentence for crime
in all states and territories. It is unlawful as a disciplinary measure in penal
institutions in New South Wales, Northern Territory, Queensland, South
Australia, Tasmania and Victoria, but it is not explicitly prohibited in Australian
Capital Territory and Western Australia.
3.5 With regard to alternative care settings, corporal punishment is lawful in
childcare centres in the Northern Territory and Tasmania, in residential centres
in the Northern Territory, Tasmania, Victoria, Western Australia and Australian
Capital Territory, and in foster care in the Northern Territory, Tasmania, Western
Australia and Victoria.
3.6 In summary, in order for children – including children with disabilities – to be
protected in law from all punitive assault, legislation should be enacted to (i)
explicitly repeal the legal defences for the use of corporal punishment in
childrearing in all states and territories, and (ii) explicitly prohibit corporal
punishment in all schools in Queensland, the Northern Territory, South Australia
and Western Australia, in penal institutions in Australian Capital Territory and
Western Australia, and in all forms of alternative care throughout the state party.
4 Children’s vulnerability to corporal punishment in Australia
4.1 While we have not identified research specifically relating to children with
disabilities, numerous research studies, reports and less formal polls attest to
the nature, prevalence, social acceptance and consequences of corporal
punishment of children generally in Australia. For example, a 2009 study looked
at all identified child homicides in New South Wales from 1991 to 2005 (165
homicides by 157 offenders). It found that the most common cause of death was
physical punishment, which accounted for 36% (59 deaths) over the 14 year
period. In almost three in four cases, children had been beaten, thrown or
shaken to death by their parents/carers. Children below the age of one are more
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likely to be killed than older children. The average age of the 59 children killed
through physical punishment was 1.5 years.2 A Government review of “domestic
discipline” cases under section 280 of the Criminal Code – which allows parents
to use “reasonable force” on their children – found that of the 134 cases of
“excessive discipline” in 2006-7, more than half (80) involved the use of
implements, including cattle prods. In 85 cases children were hit on the head, in
36 cases they were punched, in 13 kicked.3
4.2 In telephone interviews with a representative sample of 720 adults in 2006, 45%
believed it was reasonable to leave a mark on a child as a result of physical
punishment; one in 10 believed it was appropriate to use implements such as
canes, sticks, belts, or slippers to punish a child; 14% supported the use of a
wooden spoon. Two out of five (41%) believed that smacking a child is effective
in shaping his or her behaviour, while one in ten believed that smacking a
teenager is an effective way of discipline.4
4.3 A survey of parents in Queensland, conducted by the Parenting and Family
Support Centre, University of Queensland, found that 71% smacked their
children occasionally.5 In a 2011 online poll of more than 4,000 people, 85% of
parents admitted smacking their children.6 In a 2012 online poll of more than
12,000 people, 92.47% replied “no” to the question “should smacking a child be
a criminal offence?”7
5 Recommendations by human rights treaty monitoring bodies and
during the Universal Periodic Review
5.1 The Committee on the Rights of the Child has three times recommended that
corporal punishment of children be prohibited by law in homes and schools
throughout Australia – in 1997 in concluding observations on the state party’s
initial report, in 2005 on the second/third report, and in 2012 on the fourth
report.8
5.2 In 2008, the Committee Against Torture recommended the adoption of
legislation prohibiting corporal punishment at home and in all other settings.9
Nielssen, O. et al. (2009), “Child homicide in New South Wales from 1991 to 2005”, Medical Journal of
Australia, 190 (1), 7-11
3 Department of Justice and Attorney General (2008), Review of Section 280 of the Criminal Code
4 Tucci, J., Mitchell, J. & Goddard, C. (2006), Crossing the Line: Making the case for changing Australian
laws about the physical punishment of children, Ringwood, Victoria, Australia: Australian Childhood
Foundation
5 Reported in Herald Sun, 19 May 2007
6 Reported in news.com.au, 12 September 2011
7 Reported in The Daily Telegraph, 4 February 2012
8 10 October 1997, CRC/C/15/Add.79, Concluding observations on initial report, paras. 15 and 26; 20
October 2005, Concluding observations on second and third report, CRC/C/15/Add.268, paras. 5, 35 and 36;
19 June 2012, CRC/C/AUS/CO/4 Advance Unedited Version, Concluding observations on fourth report,
paras. 7, 8, 43, 44, 45 and 46
9 22 May 2008, CAT/C/AUS/CO/1, Concluding observations on third report, para. 31
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5.3 Australia was examined in the first cycle of the Universal Periodic Review in
2011. The Government rejected the recommendation to “introduce a full
prohibition of corporal punishment within the family in all states and territories”.10
Briefing prepared by the Global Initiative to End All Corporal Punishment of Children
www.endcorporalpunishment.org; info@endcorporalpunishment.org
February 2013
10
24 March 2011, A/HRC/17/10, Report of the working group, para. 86(75); 31 May 2011,
A/HRC/17/10/Add.1, Report of the working group: Addendum
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