Regarding Rights

Academic and activist perspectives on human rights

Corporal Punishment and Children: Why is there a legal discrepancy in Australia between the use of physical force against children, and the use of physical force against adults?

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Children at the UNRWA Summer Games 2011.  Source: UN Photo / Shareef Sarhan

Children at the 2011 UNRWA Summer Games
Source: UN Photo / Shareef Sarhan

By Nikola Stepanov

The recent Royal Australasian College of Physicians (RACP) Position Statement Physical Punishment of Children illuminates the ongoing discrepancies in many nations, including Australia, between the legal rights of adult persons and the legal rights of children.

In seeking to ensure children are protected from the potential harms of corporal punishment, the RACP made several reasonable, evidenced-based arguments[1] including:

  • That current Australian practice allowing the corporal punishment of one’s own children is  inconsistent with the rights of other persons in society (including other children), and is  incongruent with basic human rights;
  • That physical punishment is an outdated practice;
  • That there are other, more effective ways of disciplining a child; and
  • That there may be adverse, long-term consequences to the child and that this outweighs any counter-claims of short-term effectiveness or compliance due to physical punishments.

The RACP Position Statement raises an important question about why children in Australia do not enjoy the same right not to be harmed as adults and whether this discrepancy is based on any valid moral or legal premise. As of 2012, 33 international states had prohibited all forms of corporal punishment, including in the home and in schools. A further 18 governments are also publicly committed to considering prohibitions, including our Asian neighbours Sri Lanka, Taiwan, Bangladesh, and Thailand.[2] Concerningly, a formal commitment from the United States and Australia appears to be absent.

Currently in Australia the use of non-consensual physical force, including harming another adult or another person’s child, may open up a liability under the tort of trespass. That the force was a form of punishment for some wrong is not an acceptable defence. However, as noted in the RACP Statement, using physical force against one’s own child is acceptable in all jurisdictions provided the level of force is reasonable and for the purpose of correction. [3]

This discrepancy highlights a fundamental flaw in our nation’s occasionally ad-hoc approach to implementing and enforcing those basic human rights (as defined in various United Nations instruments) to which all persons have a claim, and to which Australia has formally agreed.

Although the notion of personhood and the characteristics defining what makes a human being a person are frequently debated at a theoretical level, it is generally accepted that most living human beings have enough of the characteristics of “personhood”—such as sentience and a vested interest in their own future—to have a claim to basic human rights.[4] At international law, children have the same claim to basic protections and rights as other persons.[5] This status provides the rationale for the position that children enjoy the same claim to “rights” as adults such as the right not to be harmed or killed. [6]  Furthermore, children occupy a special moral status in society that recognises their vulnerability, the significance of their special relationships with family, their potential as persons, and their limited cognitive ability to make decisions about their own care and needs.[7]  This unique  status affords them the right to basic protections as well as extra protections as noted in Article 19 s1 of the United Nations Convention on the Rights of the Child:

Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Moreover, the convention places responsibility on states to ensure that these rights are protected and facilitated, stating at Article 19 s2:

Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.[8]

This extension of basic human rights to include extra rights for children is reflected in other declarations, including the 1924 Geneva Declaration of the Rights of the Child and the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959.

Human rights, however, are aspirational in nature, aiming to bring about “the accomplishment of particular social or moral goods”.[9]  Whilst all persons, including children, have the same moral claim to human rights, the potential to actualise or realise those claims may be limited by factors such as a nation’s financial resources, political will, or the physical environment.[10] Therefore, legally promoting and facilitating human rights is dependent on each nation’s ability to or interest in conferring responsibility to enforce human rights by way of laws and legislations.[11] Many developing nations lack the resources or the political and legal structures to make basic human rights enforceable.[12] This is not the case in Australia, however, particularly within the context of enforcing the right of children not to endure corporal punishment from their parents. Furthermore, many nations that have prohibited or will seek to prohibit the corporal punishment of children are less well-placed in comparison to Australia.

The RACP Position Statement offers a challenge to our current practices and our approach to enforcing human rights.

If we accept that current practices in Australia are permissible then we are accepting a position that is incongruent with many other nations and with the various conventions on the rights of children. Furthermore, we are identifying that there is something about being a child that reduces or sets aside their claim to the basic rights enjoyed by other persons. This position must be reasonably justified in order to explain why Australia continues to allow practices that are at odds with numerous human and child rights declarations and frameworks, and the emerging empirical evidence of the harms of corporal punishment.

Alternatively, we should face squarely the full moral and legal impact of what we are doing and seek to address such obvious inconsistencies with our international and domestic human rights obligations.


[1] The RACP Position Statement includes references to a number of national and international published articles in well-ranked journals to support their claims, as well as a number of Commissioner’s Reports.

[2] Global Progress. (2012) Global Initiative to End All Corporal Punishment of Children. Available from: http://www.endcorporalpunishment.org/pages/frame.html. Date accessed August 27 2013. Corporal punishment prohibited in all settings: Albania, Austria, Bulgaria, Congo, Costa Rica, Croatia, Cyprus, Denmark, Finland, Germany, Greece, Hungary, Iceland, Israel, Kenya, Liechtenstein, Luxemburg, Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Moldavia, Romania, South Sudan, Spain, Sweden, Togo, Tunisia, Ukraine, Uruguay, Venezuela.

[3] RACP, n 1; Gawlik J, Henning T & Warner K. (2002). Physical Punishment of Children. Tasmania Law Reform Institute. Hobart; Australian Institute of Family Studies, Corporal Punishment: Key Issues. Date accessed August 27 2013.

[4] Singer, P. (2011). Practical Ethics: 3rd Edition. Cambridge: Cambridge University Press.

[5] ‘Child’ is defined in Article 1 of Convention on the Rights of the Child as ‘every human being below the age of 18 years’.

[6] Freeman, M. (1985). The Rights and Wrongs of Children. London, Francis Pinter; Wald, M. S. (1979). “Children’s Rights: A Framework for Analysis.” U.C.D Law Review 12(255); Rodham, H. (1979). “Children’s Right’s: A Legal Perspective.” In P. B. Vardin, I. (Ed.), Children’s Rights:Contemporary Perspectives. New York: The Teacher’s College Press.

[7] Kerridge, I., M. Lowe and C. Stewart (2013). Ethics and law for the health professions. Leichhardt, The Federation Press.

[8] Australia signed the Convention on the Rights of the Child in 1990, and was an active contributor in the development of the convention with delegates including former Chief Human Rights and Equal Opportunity Commissioner, Brian Burdekin. Details available from:  http://www.info.dfat.gov.au/Info/Treaties/Treaties.nsf/AllDocIDs/E123F4F71DCAE3E7CA256B4F007F2905

[9] Freeman, M. n 6. 1985. p 37.

[10] Singer, P. n 4. 2011.

[11] Freeman, M. n 6. 1985; UN n 5; Wald, M. n 4. 1975.

[12] Singer, P. n 4. 2011.

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