Notes - Queensland Law Society

Transcription

ISSN 1835-7199 (Print)
ISSN 1449-9207 (Online)
2009 Volume 2
fat burning:
censoring ‘junk
food’ advertising
for kids
paid maternity leave
and other forms of
parental leave
police powers and
responsibilities
new offences for
adults irresponsibly
supplying alcohol
Cut the Fat: Our look at
censoring ‘junk food’ advertising
for children
Moving Forward: Mary Westcott
addresses the long-standing argument
of Paid Maternity Leave and other
forms of Parental Leave in Australia
Serve and Protect: All you need to
know about the Police Powers and
Responsibilities Act 2000 (Qld)
Acting Responsibly: Renee
Gastaldon looks at the new offences
for adults irresponsibly supplying
alcohol to young people
Spanked: The issues and the law
surrounding parental smacking
Advanced Law: Just how does the
media shape community’s view of law
and order?
Private Eye
Resource Review
Web Weaving
Glossary
Puzzle
editor
Calista Bruschi
art features
design director Calista Bruschi
designer Amanda Edwards
designer Sonya Vanjicki
print coordinator Leanne Genn
printing Peninsula Colour Pty Ltd
advanced law Dr Rhonda Breit
breaking news Mary Westcott
Discussion Point Lucy Weber
discussion point Lisa Duncan
discussion point Renee Gastaldon
web weaving Calista Bruschi
copy and production online
proof reader Vicki Moore online assistant Kintek
advertising coordinator editorial enquiries (07) 3842 5849
Mitch Cridland (07) 3842 5921
queensland law society
president Ian M Berry
vice-president Peter C Eardley
chief executive officer Noela L’Estrange
Contributors to The Verdict express their own views and these do not necessarily reflect the opinions or views
of the Queensland Law Society. The content of any part of The Verdict should not be construed as legal or
professional advice.
Published by the Queensland Law Society
in brief
Great
excitement
conference looms...
as
It is with great excitement and enthusiasm that
I announce Mrs Barbara Holborow OAM as the
keynote speaker at this year’s QLS State Legal Educators
Conference, being held in Brisbane in July.
For 12 years Mrs Holborow was a Children’s Court
Magistrate in Syndey, and is renowned for her commentary
on the rights of young people and victims of crime.
She brings to the 2009 State Legal Educators Conference
an extraordinary experience in presiding over the toughest
children’s courts. Mrs Holborow’s tales, which are often gritty and heart breaking, have
been documented in a series of novels. Her most notable work, ‘Those Tracks on My
Face’ will form the basis of her presentation at this year’s conference, and is perfectly
aligned with the overall theme, Stories from the Front Line.
Mrs Holborow’s accomplishments also include courageous and honourable lobbying
for justice for Australia’s youth, and in 2008 she was awarded an Order of Australia
Medal. I am sure she will charm and engage delegates attending this year’s State
Legal Educators Conference.
Much planning has gone into this year’s conference, which is especially aimed at
Queensland’s legal studies, justice studies and legal administration teachers. The
conference will focus on how the knowledge and experiences of the speakers and
panellists can have a practical and inspirational impact on legal education in the
classroom.
The State Legal Educators Conference is considered a unique opportunity for
those educating the potential future members of the legal profession, as it is an
event designed to increase educators’ knowledge of the law, and distinguish legal
information that can be adapted to the classroom.
The program is available online at http://sces.qls.com.au.
Editor, The Verdict
The Verdict Vol 2. 2009 3
discussion point  junk food 
Censoring Junk
Food Advertising
on Children’s TV
by Lisa Duncan
Lisa Duncan is a Policy Lawyer at the
Queensland Law Society, who assists in
the coordination of advocacy regarding
government law reform. She has a Bachelor
of Laws with Honours and a Bachelor of
Arts majoring in Criminology from Victoria
University of Wellington.
O
ver the last few years the debate into
the role of ‘junk food’ advertising
as a possible contributor to childhood
obesity has gathered momentum. So
much so, that the Federal Government
recently introduced a Bill into Parliament
to prohibit all television advertisements
of ‘junk food’ in an effort to address public
concern regarding increasing obesity
levels.
Whether such an approach is practical has been
discussed by a variety of community and industry
groups, with the bulk of debate centring around
whether a causal connection can be established
between the advertising of ‘junk food’ and childhood
obesity. Nonetheless, the focus here is not on whether
such a connection can be established, but on whether
censorship of ‘junk food’ advertising is a justifiable
restriction on the right to freedom of expression?
4 The Verdict Vol 2. 2009
What can be broadcast on television is regulated
by various pieces of state and federal Government
legislation and different industry codes of practice
such as the Advertisers Code of Ethics.
The Broadcasting Services Act 19921 regulates
broadcasting content by ensuring commercial freeto-air broadcasters comply with the Commercial
Television Code of Practice (“CTCoP”)2 and the
Children’s Televisions Standards (“CTS”). These
pieces of legislation outline specific standards
that must be complied with in regard to
a range of broadcast content for
example advertising, program
content, and program
viewing times3.
While there is no
legislation dedicated
solely to regulating
television advertising
of food to children,
both the CTS and
the CTCoP have
provisions regarding
broadcasting content
directed at, or likely to
be viewed by, children.
Provisions
within
both
pieces of legislation provide that
advertisements for food products may
not be misleading or give incorrect information
about the nutritional value of the food or
beverage. Additionally, the CTCoP directs that
such advertisements must not encourage or
promote an inactive lifestyle combined with
unhealthy eating or drinking habits.
The Australian approach to regulation of the
broadcasting industry is mirrored elsewhere
in the world, with legislation in many countries
dictating the way food products in general are
presented to children in the media. Advertising
codes in America, Canada and New Zealand
contain rules regarding the presentation of food in
ways that promote good nutritional practices and
a balanced diet. Similarly, legislation in Ireland
and the Netherlands requires all advertisements
for fast food and confectionary products to
include statements advising of the impact of the
product on dental health and advocating that the
product be eaten in moderation. Interestingly,
while there are a number of countries that have
rules prohibiting any advertising to children
(for example Quebec and Sweden), the United
Kingdom is the only country that prohibits
particular types of food from being advertised
to children, that is ‘junk food’4. It is this type of
restriction that the Senate seeks to impose
upon Australian broadcasters.
The
Protecting
Children from Junk
Food
Advertising
(Broadcasting
Amendment)
Bill
2008
(the
“Bill”)
was
introduced
into the Senate in
September 20085. The
Bill seeks to amend the
Broadcasting
Services
Act 1992 by prohibiting the
broadcasting of any advertisements
of food or beverages, including sponsorship
announcements that identify or refer to food and
beverage manufacturers, distributors or sellers,
during periods when children’s programming is
typically screened. Further, the Bill also seeks
to amend the Schools Assistance (Learning
Together – Achievement Through Choice and
Opportunity) Act 2004 by making it a condition
of financial assistance that schools must
not display advertisements or sponsorship
announcements of companies whose principal
activity is to manufacture, distribute or sell food
and beverages. In both cases, the Bill entitles the
Vol 2. 2009 The Verdict 5
Minister to provide exemptions for the
advertising of food or beverages
that are “beneficial” to a
child’s health and well
being.
On
2
December
2008, the Senate
C o m m u n i t y
Affairs
Committee
completed its inquiry
into the Bill and
recommended that
the Bill not be passed,
stating6:
“The Committee believes
it is premature to bring
forward legislative changes
to food and beverage advertising
while the National Obesity Strategy is
being developed by the National Preventative
Taskforce and before the industry’s initiatives
in relation to responsible advertising can be
properly assessed.”
To date, the Protecting Children from Junk
Food Advertising (Broadcasting Amendment)
Bill 2008 remains before the Senate for further
consideration.
Government censorship of what can be broadcast
on television imposes on the right to freedom
of expression by prohibiting or restricting what
broadcasters can screen and what citizens are
able to view.
Freedom of expression is a fundamental human
right and encompasses the idea that every
individual should have the ability to seek, receive
and impart information. Freedom of expression
in its purest form exists without limitations and is
“as wide as human thought and imagination”7.
However, in practice, it is not an absolute right
in any country. The public expects the State to
restrict people’s rights and freedoms in
order to maintain other essential
rights and freedoms. There
are many cases where
the harm caused by
a certain expression
would
arguably
outweigh its benefit
and it becomes
necessary for the
State to regulate
that
expression.
For example, in the
interest of people
receiving a fair trial
it is necessary to limit
the information that can
be published by the media
regarding police prosecutions.
Similarly, while it is generally accepted that
society at large should have access to accurately
and realistically depicted news broadcasts,
despite the often graphic nature of their content,
it is widely believed that it is necessary to
restrict children from viewing violent fictional
programming.
The right to freedom of expression is
constitutionally protected in many countries
around the world by inclusion within a Bill of
Rights or Human Rights Charter. However,
despite a large degree of advocacy by various
commentators, at a federal level, Australia does
not have a Bill of Rights Charter. Nonetheless,
in Queensland human rights are to some degree
protected under section 4 of the Legislative
Standards Act 19928, which requires parliament
to have regard to the fundamental rights and
liberties of individuals when making laws.
Additionally, it is often argued that the right to
freedom of expression remains protected in
Australia as an implied constitutional right. Such
rights are created by fundamental doctrines that
form the foundation of a country’s constitution
and, by their nature, have the effect of requiring
parliament to have regard for them when
legislating9.
The right to freedom of expression is also
universally protected within international human
rights law under the Universal Declaration of
Human Rights (“UDoHR”) and the International
Covenant on Civil and Political Rights (“ICCPR”).
Article 19(2) of the ICCPR recognises the right
to freedom of expression as the right to10:
“...seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or
through any other media of his choice”.
However, the ICCPR acknowledges that there
will be times when it is necessary to limit the right
and, accordingly, article 19(3) permits the State
to restrict the right to freedom of expression
when the restriction is provided by law and when
it is necessary11:
• to respect the rights or reputations of others
• for the protection of national security, public
order, or public health or morals.
There is no hierarchy of human rights. No human
right is always more important than any
other human right. Accordingly,
when deciding whether it
is justifiable to restrict
one right in favour of
another, the State must
undertake a balancing
exercise, determining
what is ultimately
in the public’s best
interests.
Article
19(3) of International
Covenant on Civil
and Political Rights
represents
this
balancing exercise and,
in the case of ‘junk food’
advertising, requires the State
to consider whether censorship of
advertising is really necessary to protect public
health.
Restricting advertising in the name of public
health is not a new initiative. It has been generally
accepted that it is a justifiable restriction on
cigarette producers’ freedom of expression for
the Government to prohibit the advertising of
cigarettes entirely and to compel companies to
incorporate pictorial examples of the negative
effects of smoking upon every cigarette packet.
However, while achieving the objective of
reducing childhood obesity is a similarly
honourable and important objective, unlike
cigarette smoking, there is no direct link between
consumption of ‘junk food’ in moderation, as part
of a healthy lifestyle, and unhealthy weight gain
and its associated problems.
Even if it could be said that preventing individuals
from eating any ‘junk food’ at all was in the interest
of public health, the question becomes: would
the Government’s proposal to prohibit ‘junk food’
advertising to children be a necessary restriction
in order to reduce childhood obesity? Determining
whether a restriction is necessary is complicated
and ultimately requires a consideration into the
proportionality of the proposal; that is, does the
Government’s Bill effectively achieve its
objectives while restricting the right
to freedom of expression as
little as possible? Such an
inquiry typically involves
a consideration of:12
•the nature of the right
affected
•
the
importance of the
purpose of the
limitation
•the nature and extent
of the limitation
• the relationship
between the limitation and
its purpose
• whether there is any less restrictive means
reasonably available to achieve the purpose
the limitation seeks to achieve.
Obviously, it is senseless to restrict a fundamental
human right if no good will come of it. Accordingly,
for a restriction to be necessary, it must achieve
its objectives.
In this case, the Protecting Children from Junk
Food Advertising (Broadcasting Amendment)
Bill 2008 is designed to reduce childhood
obesity levels. Reports from the National Heart
Foundation suggest that weight problems in
children have reached epidemic levels, with the
rate of childhood obesity tripling between 1985
and 1995. The number of obese children aged
between seven and 15 years has risen from
1.4 percent of boys and 1.2 percent of girls in
1985, to 4.7 percent of boys and 5.5 percent
of girls in 199513. Similarly, the National Heart
Foundation suggests the rate of children classed
as overweight or obese has doubled during the
same period. While various commentators have
argued that there has been “no significant
change in childhood obesity levels
since 1995”14, childhood obesity
nonetheless remains an
important problem that
must be addressed
at both a state and
federal level. This
is particularly so
given the serious
health and financial
implications of the
disease.
Obesity
sufferers have the
potential to develop
chronic diseases such
as
diabetes,
various
cancers and cardiovascular
disease, and in 2008 these
obesity-related health concerns cost taxpayers
an estimated $8.3 billion15.
In order for the Bill to achieve its objective, a
scientific link must be established illustrating that
the advertising of ‘junk food’ on television causes
or contributes to childhood obesity.
Those in favour of censoring television
advertising often argue that such a casual link
must exist given the large quantities of money
spent on advertising directed specifically at
children, encouraging them to either personally
purchase products or persuade their parents
to purchase products. To date though, no clear
link has been established. In fact, research
conducted in countries that have banned
advertising to children actually suggests it has
little to no effect on the rate of childhood obesity16.
In Quebec, for example, advertising to children
has been prohibited since 1980, yet obesity rates
in Quebec are no different to that of any other
Canadian province. Similarly, decade long bans
in Sweden and Norway have not resulted in a
significant reduction in obesity rates either.
Public health literature suggests that there are a
range of factors that contribute to a child’s weight,
including individual, hereditary, cultural, social
and environmental factors. The degree of
influence each factor has upon food
consumption and ultimately
weight
gain,
however,
is arguable. Various
health
professionals
have argued that
food
promotion,
independently
of other factors,
has a large effect
on
children’s
food
preferences,
purchase behaviour
and
consumption17.
Research commissioned
by
the
Australian
Association
of
National
Advertisers (“AANA”), on the
other hand, estimates that advertising
viewed by children contributes
to less than two percent of a
child’s food consumption18.
Nonetheless, whatever
the relative influence
of each factor, it would
seem
important
to
acknowledge
is that there are
multiple factors at
work and scapegoating television as
the major factor only
detracts attention from
the diversity of research
required to determine what
is necessary to reduce obesity
levels.
will be in a position to pay broadcasters
for advertising space. It also
creates a rather large grey
area, leaving it unclear
what foods will actually
be termed “beneficial”
to a child’s health.
What is classed as
‘junk food’ is not
easily
definable
either, and changes
depending
on
whether consideration
is given to the vitamins
and nutrients included,
calorie
content,
and
energy
provided.
For
example, it is possible that
products such as muesli bars will not
be able to be advertised as, while they aren’t
typically ‘junk food’, they do contain ingredients
that are beneficial to our health as well as those
ingredients that are not.
A restriction will also not be necessary if it limits
a right more than is required to achieve its
objective. Accordingly, if the Government wants
to reduce childhood obesity, it must do so in
such a way that censors television broadcasting
as little as possible. As the age old saying goes,
“you should not use a sledgehammer to crack a
nut”19.
Ultimately, as the Senate Committee outlines
in their report, it would seem to be a far more
reasonable and less restrictive approach to
allow the broadcasting industry to regulate their
own conduct regarding the advertising of food
and beverages to children. On 1 January 2009
the food and beverage industry implemented
The Responsible Children’s Marketing Initiative
of the Australian Food and Beverage Industry
(the “initiative”), designed to ensure a high level
of social responsibility in the marketing of food
and beverages to children20. Those companies
participating in the initiative publicly committed
to only marketing products to children under
the age of 12 years when it furthered the goal
of promoting healthy dietary choices within the
context of a healthy lifestyle. There have also
been a number of product-specific initiatives
implemented with a similar goal. While it has
been suggested that the broadcast industry will
not be able to adequately regulate itself, it would
first seem prudent to provide the industry with
the opportunity to try. Further, an evaluation of
In this case, it seems that that is exactly what the
Government is trying to do. It is acknowledged
that the Protecting Children from Junk Food
Advertising (Broadcasting Amendment) Bill
2008 limits the censorship by only prohibiting the
advertising of food and beverages during certain
times of the day. However, the Bill is nonetheless
extremely broad, banning advertising of all food
and beverages and only permitting the Minister
to provide exemptions to broadcasters for
advertising of products “beneficial” to a child’s
health. Such an exemption significantly limits the
number of producers who will be permitted to
advertise their product and, by implication, who
the industry’s progress and compliance must be
undertaken to determine if legislative intervention
is even necessary.
Ultimately it appears that the Government’s
proposed Protecting Children from Junk Food
Advertising (Broadcasting Amendment) Bill
2008 places quite an excessive restriction
on broadcasters and the food and beverage
industry’s right to freedom of expression. A
restriction that is unlikely to see any real decrease
in childhood obesity. While it is acknowledged
that the value of the speech, being commercial
advertising, is not as high as, say, the value of
political speech; citizens nonetheless have a
right to access such speech unless it can be
justifiably censored. Presently, it would seem
that there is no such adequate justification.
As noted by the Senate Committee, legislating
for the censorship of junk food advertising
is “premature”. In modern times, childhood
obesity is a relatively new health concern,
and one that requires far more research and
consideration before legislative action is taken.
To date, preliminary research in this area has
largely focused on whether a causal link can
be established between advertising and food
consumption. Consequently, there has been
little scientific evaluation of the effectiveness of
various intervention initiatives. It is here that the
Government’s attention and funding should lie,
not in attempting to eliminate one factor that may
possibly have some degree of influence on food
consumption.
Unfortunately, there is no ideal scientific
experiment to determine the effectiveness of
intervention strategies and, accordingly, public
policy must err on the caution. However, there
are a number of policy initiatives that, by their
nature, are unrestrictive and which have the
potential to make a direct impact on the obesity
epidemic. For example, the United States
Institute of Medicine has recommended that
governments engage parallel policy strategies
to work in tandem with the self regulation of
children’s television programming, including
improving food labelling systems and balancing
‘junk food’ advertising with the advertising of
healthy products21. Other policy analysts have
recommended that governments subsidise the
price of healthy foods in order to increased
access to them and fund education programs
directed at advising parents about healthy eating
and how to prevent children from prolonged
exposure to television22. While finally, it has also
been suggested that government assistance
should be provided to the development of
media literacy programs in schools to enhance
children’s analysis of marketing.
In 2004, the Australian Federal Government
funded a $116 million package aimed at
encouraging children to exercise more and
improve their eating habits, establishing after
school education programs for approximately
150,000 primary school aged children and
providing community grants to organisations
promoting healthy eating and lifestyles23.
Additionally, the Government recently convened
a National Preventative Health Taskforce with the
purpose of developing a National Preventative
Health Strategy, to be released in June 200924. It is
anticipated that this strategy will act as a blueprint
for government policy in tackling obesity-related
problems from a primary prevention perspective.
It is these types of policy initiatives that both
state and federal Government’s must continue to
focus on, in addition to ongoing research in the
area. The censorship of ‘junk food’ advertising is
not something that is currently necessary and,
consequently, nor is a justifiable restriction on
the right to freedom of expression.
Notes
1 Broadcasting Services Act 1992 available at http://www.austlii.
edu.au/au/legis/cth/consol_act/bsa1992214/
2 Commercial Television Industry Code of Practice 2004
available at http://www.acma.gov.au/webwr/aba/contentreg/
codes/television/documents/codeofpractice-july2004.pdf
3 Children’s Television Standards 2005 available at http://
www.acma.gov.au/webwr/aba/contentreg/codes/television/
documents/chstdvarn_03.pdf
Notes
Notes
4 Available at http://bob-brown.greensmps.org.au/content/
expression/protecting-children-from-junk-food-advertising.htm
5 Protecting Children from Junk Food Advertising (Broadcasting
Amendment) Bill 2008 available at http://parlinfo.aph.gov.au
6 Available at http://www.aph.gov.au/senate/committee/clac_
ctte/protecting_children_junk_food_advert/report/index.htm
7 Moonen v Film and Literature Board of Review [2000] 2 NZLR
9 (CA).
8 Legislative Standards Act 1992 available at http://www.austlii.
edu.au/au/legis/qld/consol_act/lsa1992222/
9 Available at http://www.austlii.edu.au/au/journals/
SydLRev/2005/2.html
10 International Covenant of Civil and Political Rights available
at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
11 International Covenant of Civil and Political Rights available
at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
12 These factors are outlined in legislation and case law in
New Zealand, Canada and South Africa: Moonen v Film and
Literature Board of Review [2000] 2 NZLR 9 (CA), R v Oakes
[1986] 1 SCR 103 (SCC) and the South African Constitution 1996.
16 UNCROC and the prevention of childhood obesity: The right
not to have food advertisements on television (2008) 16 Journal
of Law and Medicine 49
19 Moonen v Film and Literature Board of Review [2000] 2 NZLR
9 (CA).
20 Available at http://www.advertisingstandardsbureau.
com.au/pages/images/Responsible%20Marketing%20to%20
Children%20.pdf
21 Does TV advertising make children fat? (2006) 13(1) Public
Policy Research 54
22 Does TV advertising make children fat? (2006) 13(1) Public
Policy Research 54
23 Available at http://www.abc.net.au/health/thepulse/
stories/2004/11/25/1251181.htm
24 Available at http://www.preventativehealth.org.au/internet/
preventativehealth/publishing.nsf/Content/national-preventativehealth-strategy-1lp
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breaking  news 
by Mary Westcott
Mary Westcott (LLB (Hons) BSc) has worked
as a Parliamentary Research Officer in the
Queensland Parliamentary Library since 2005.
She has lectured and tutored in various legal
subjects. Prior to her current role she was a
solicitor at Corrs Chambers Westgarth.
breaking  news 
O
n Mother’s Day 2009, the Australian
Treasurer, the Hon Wayne Swan
MP, announced that the Australian
Government would introduce a paid
parental leave scheme to commence in
January 2011. The scheme will make
government-funded payments at the
federal minimum wage for 18 weeks to
eligible parents1. This article, which is
based on a Research Brief published by
the Queensland Parliamentary Library in
August 2008, looks at the background to
the announcement.
Over the years there have been numerous calls by
those such as the Sex Discrimination Commissioner
and the Human Rights and Equal Opportunity
Commission for a national paid parental leave
scheme. Currently however, while many Australian
employees are entitled to 12 months unpaid parental
leave and some are entitled to a period of paid parental
leave, Australia does not have such a scheme.
Maternity leave is considered by most commentators
to be the most important form of parental leave given
that a mother needs to recover from giving birth
and breastfeed her child, but paternity leave is also
considered valuable2.
‘Parental leave’ is generally used to mean both
maternity leave and paternity leave, but in some
instances it is used to describe leave which may be
taken by either parent to be a child’s primary caregiver.
Maternity leave is taken by a pregnant employee for
the birth of her child or to enable her to be the child’s
primary caregiver3. Paternity leave (sometimes called
spousal leave or partner’s leave) is leave taken by an
employee whose spouse or partner gives birth. It
can be taken in connection with the birth of a child of
the employee’s spouse or to enable the employee to
be the child’s primary caregiver4.
Employees in Queensland (other than those who have
worked for their employer for less than 12 continuous
months or who are short term casual employees or
seasonal employees or piece workers) are entitled
to 52 weeks of unpaid parental leave5. An employee
in Queensland is not entitled to parental leave (apart
from one week at the time of birth) while his or her
spouse is on parental leave6. Upon an employee’s
return to the workplace after parental leave, he or
she is entitled to return to the same position or an
equivalent position7. Some workplaces enable the
employee to return to work in a part-time role8.
In 2005, about 70 percent of mothers and 65 percent
of fathers in Australia who were employed prior to the
birth of their child were eligible for unpaid parental
leave9. The Parental Leave in Australia Survey
results show that about seven percent of fathers
took unpaid paternity leave at the time of their child’s
birth and about 57 percent of mothers used unpaid
maternity leave10.
Some employees are entitled to be paid for part or all
of their parental leave under legislation, an award, an
agreement or workplace policy11. In its 2009 report,
the Productivity Commission quoted Australian
Bureau of Statistics (ABS) figures which showed
that in 2007, 54 percent of female employees and 50
percent of male employees had access to employerprovided paid parental leave12. The length of time and
rate at which parental leave is paid varies between
employers, as do the eligibility requirements.
Some employers provide paid maternity leave but
it is conditional on the employee returning to that
workplace after the maternity leave has finished,
otherwise the employee has to repay some or all the
money or does not receive the full amount17.
The ABS reported that in Australia in 2005, 71 percent
of women between the ages of 15 and 44 were in
the workforce18. In that year, 198,000 pregnant
employees used leave for the birth and subsequent
care of children and those employees took an average
of about eight months leave19. Whilst some only took
paid leave, and others only took unpaid leave, the
greatest percentage (37 percent) used both unpaid
leave and paid leave for an average of 43 weeks20.
ABS figures also show that 41 percent of women
employed in 2005 were entitled to paid maternity
leave21. In that year, 37 percent of women who
were employed while pregnant used paid maternity
leave; the average length of the leave was 11 weeks.
Nineteen percent of pregnant employees received at
least 14 weeks of paid maternity leave22.
The statistics show great variability in the provision of
paid maternity leave between sectors, industries and
breaking  news 
unpaid leave (7%) and other reasons including not
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em
mp
plo
loye
ye
rs
rs
pa
p
are
wanting or needing to take unpaid leave
in
in
ren
nta
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A
13
13
tall le
ust
u
stra
lea
ralia
ave
lia w
ve ::
wh
ho
o p
pa
ayy
(29%)24.
•
•
•
•
occupations.
For example, 76 percent of
pregnant employees in the public sector accessed
paid maternity leave while only 27 percent of pregnant
employees in the private sector used paid maternity
leave. Only about 25 percent of women employed
in the property and business services received paid
maternity leave compared with 68 percent of pregnant
women employed in education. Sixty percent of
pregnant employees classified as professionals
were given paid maternity leave compared with 31
percent of pregnant employees who were classified
as intermediate clerical, sales or service workers23.
In 2005, 51 percent of pregnant employees used
unpaid maternity leave for an average of 32 weeks.
Almost the same proportion of women in the public
sector used unpaid leave as in the private sector.
Of the pregnant employees who did not use unpaid
maternity leave, 24 percent were ineligible because
they had worked for their employer for less than 12
months. The reasons that ‘notionally eligible’ pregnant
employees gave for not using unpaid maternity leave
include: permanently leaving the place of employment
while pregnant (26%), unpaid leave was unavailable
or unoffered (21%), ineligibility due to reasons other
than length of service (16%), inability to afford to take
The Parental Leave in Australia Survey,
conducted in 2005 to provide information
about the use of parental leave by Australian
employees25, found that 24 percent of
employed fathers used paid paternity leave
for an average of seven days and seven
percent of employed fathers took unpaid
paternity leave for an average of 14 days.
Overall, 30 percent of employed fathers used
paternity leave. The majority of employed
fathers (62 percent) took other paid leave
(e.g., annual leave, long service leave and
sick leave) for an average of 13 days26.
There are numerous international instruments
that directly or indirectly relate to women in the
workplace, but the most significant international
instruments relating to maternity leave are the
Convention on the Elimination of All Forms of
Discrimination Against Women (adopted by the
United Nations General Assembly in 197927) and the
Maternity Protection Convention 2000.
Article 11 of the Convention on the Elimination of All
Forms of Discrimination Against Women requires
states to take measures to eliminate discrimination
against women in relation to employment28.
Amongst other things, Article 11(2) of the Convention
specifically requires states to:
• prohibit dismissal on the grounds of pregnancy or
of maternity leave; and
• introduce maternity leave with pay or with
comparable social benefits without loss of former
employment, seniority or social allowances.
Australia ratified the Convention in 198329 with a
reservation concerning Article 11(2):30
The Government of Australia advises that it is not at
present in a position to take the measures required
by article 11(2) to introduce maternity leave with
pay or with comparable social benefits throughout
Australia.
In its 1999 report titled Pregnant and Productive, the
Human Rights and Equal Opportunity Commission
(HREOC)
recommended
that
the
Federal
breaking  news 
Government remove its reservation to Article 11(2)
(b) of the Convention on the Elimination of All Forms
of Discrimination Against Women regarding paid
maternity leave31, but to date, the Federal Government
has not.
The Maternity Protection Convention 2000 (which
came into force on 7 February 200232) provides that
women to whom the Convention applies are entitled
to maternity leave of at least 14 weeks33. Article 6 of
the Convention sets out the amount a woman should
be paid during maternity leave. It requires payment
to be such that “the woman can maintain herself
and her child in proper conditions of health and with
a suitable standard of living”34. The amount of the
benefits is required to be at least two-thirds of the
woman’s previous earnings35. If the woman is not
eligible for maternity leave,
the Convention requires the
member state to provide
adequate benefits out of
social assistance funds36.
The Convention also requires
its member states to ensure
that women are able to return
to their previous position, or
an equivalent position, after
their maternity leave37.
As at 20 May 2009, the
Convention had been ratified
by 17 countries; Australia
is not among them38.
Nevertheless, the HREOC
considers the Maternity
Protection Convention 2000
to be “a useful benchmark
for considering the adequacy of any proposed
scheme”39.
Over the years, there have been numerous
paid parental leave proposals in Australia. Sex
Discrimination Commissioner, Elizabeth Broderick,
was reported in the Sydney Morning Herald in May
2009 saying that she is “the fourth sex discrimination
commissioner to call for [the] introduction [of paid
parental leave]”40. In its 2002 report titled A Time to
Value: Proposal for a National Paid Maternity Leave
Scheme, the HREOC recommended the Federal
Government introduce and fund a national paid
maternity leave scheme41. The HREOC’s preferred
national model for a national paid maternity leave
scheme comprised:42
• 14 weeks of taxable payments at the lesser of the
federal minimum wage or the women’s previous
weekly earnings to be funded by the Federal
Government
• payments made fortnightly to women who have
been in paid work for 40 weeks out of the past 52
weeks with one or more employers
• the payments would mean the recipient would be
ineligible for certain government payments.
In 2007, the HREOC confirmed it remained of the
view that it was a priority for the government to
introduce a national 14 week
minimum paid maternity
leave scheme43. After its
implementation, the HREOC
suggested that:44
…
the
Australian
government
should
consider phasing in a more
comprehensive
scheme
including paid paternity
leave [of at least two weeks]
at the time of the birth, and
an extended period of paid
parental leave [38 weeks]
that could be taken by
either parent.
In
September
2007,
Democrat Senator Natasha
Stott Despoja introduced
a private member’s bill – the Workplace Relations
(Guaranteeing Paid Maternity Leave) Amendment
Bill 2007 (Cth) – into the Senate45 which proposed
the introduction of a 14 week government-funded
paid maternity leave scheme. Wages would be paid
at the minimum wage or at the employee’s average
wage if it is lower than the minimum wage. Senator
Stott Despoja said in her Second Reading Speech:46
This is not the first time I have called on the
Parliament to support the introduction of a 14 week
government-funded paid maternity leave scheme.
… I am proud to introduce … legislation that would
help address the systemic discrimination and
disadvantage women in the workforce are faced
breaking  news 
with on a daily basis, and help protect working
women from economic hardship as a result of the
birth of a child.
At the Productivity Commission’s May 2008 public
hearings for its inquiry into paid maternity, paternity
and parental leave, Senator Stott Despoja made it
clear that while her bill only concerned maternity
leave, she is in favour of parental leave. However,
she considered there was “an immediate and urgent
need to enshrine in legislation a right for women to
take time off when they have a child and for that time
to be paid time off”47.
The Australian Industry Group (Ai Group) joined with
the HREOC and the Australian Council of Trade
Unions (ACTU) to lobby for a ‘national, taxpayerfunded paid maternity leave
scheme’48.
While the
HREOC and the ACTU were
advocating 14 weeks of paid
maternity leave49, the Ai
Group was advocating 1214 weeks50. The Council of
Small Business of Australia
and the Business Council
of
Australia
supported
a
government-funded
maternity leave scheme of
14 weeks51.
The April 2008 report of
the
[South
Australian]
Select
Committee
on
Balancing
Work
and
Life
Responsibilities
recommended,
amongst
other things, that the South
Australian Government investigate the adoption
of a state-based paid maternity leave scheme52.
The Committee also recommended that the State
Government urge the Federal Government to work
towards “a model of world’s best practice in maternity,
paternity and parental leave such as that practised in
the Nordic countries”53 by:
• paying parental leave in addition to maternity and
paternity leave so that the total leave available is
one year.
The National Employment Standards (NES), which
will commence on 1 January 2010, were introduced
by the Federal Government to provide “key minimum
conditions applicable to all employees who will
be covered by the federal system”54. The matters
covered by the NES include unpaid parental leave.
The NES provide for up to two years unpaid parental
leave for an employee who:
• has worked continuously for at least 12 months
with his or her employer immediately before the
birth of a child; and
•
has responsibility for the
care of the child.
The NES provide for one
year of unpaid leave, but
an employee may request a
further 12 months of unpaid
parental leave. The employer
must agree to the extension
unless the employer has
reasonable business grounds
for refusing. An employee’s
leave must be taken in one
block55.
Under the NES, an employee
who takes unpaid parental
leave is entitled to return to
the position he or she held
prior to taking the leave or an
equivalent position56. The NES require an employer
to consult with an employee who is on unpaid parental
leave if the employer makes a decision “that will have
a significant effect on the status, pay or location of
the employee’s pre-parental leave position”57.
• implementing a government funded national paid
maternity leave scheme of 14 weeks paid leave at
the lesser of the minimum wage or the woman’s
average wage
• providing two weeks paid paternity leave at the
birth of a child
While some groups and individuals support the
introduction of a national paid parental leave
scheme iin Australia, others have argued against its
introduction.
breaking  news 
The key reasons identified by proponents of paid
parental leave (particularly paid maternity leave)
relate to the benefits for the family, employers
and the economy; and reducing inequality in the
workplace. It is generally agreed that it is beneficial
that at least a child’s mother take leave from work
for a period following the child’s birth. This enables
the mother to recover from pregnancy and birth,
provides an opportunity to establish breast feeding
(where possible), and encourages bonding between
parent and child. Some proponents argue that paid
maternity leave should be for at least six months58
because the World Health Organisation guidelines
recommend breast-feeding for at least this period of
time59.
In her Second Reading Speech on the Workplace
Relations
(Guaranteeing
Paid Maternity Leave) Bill
2007, Senator Natasha
Stott Despoja said that paid
maternity leave would “help
protect working women from
economic hardship as a
result of the birth of a child”60.
The Hon Julia Gillard MP
considers maternity leave
to be good for female
employees “because it helps
them balance work and
family life”61.
Paid parental leave is
considered by some to
provide benefits to the
economy and employers.
At a press conference in
March 2008, the Hon Julia Gillard MP commented
that maternity leave is good for employers because
it increases the likelihood of women returning to their
former workplaces thereby retaining their skills62.
It also means that turnover costs are reduced63. A
2003 survey conducted by the Equal Opportunity
for Women in the Workplace Agency showed that
businesses with paid maternity leave have an 11
percent higher return rate from maternity leave than
other businesses64.
Some consider that ‘generous paid maternity leave’65
can be used as an incentive to encourage women to
enter industries dominated by men, but facing skills
shortages. John Sutton, the national secretary of
the Construction Forestry Mining and Energy Union
(CFMEU), was quoted in the Age as saying:
“There’s this vast untapped potential of labour
supply – i.e., smart capable Australian women –
that ought to be accessed …”
In a jointly-written article in the Age in April
2008, Elizabeth Broderick (Sex Discrimination
Commissioner), Sharon Burrow (President of
the ACTU) and Heather Ridout (Ai Group Chief
Executive) said:
“Paid maternity leave is not about being nice
to working women, it is about addressing the
inequality experienced by women workers relative
to men as a result of childbirth. Nor is it a question
of the baby bonus versus paid maternity leave:
Paid maternity leave is not
a bonus, it is about a right
to paid leave for working
mothers recovering from
childbirth to help establish
breast-feeding and for allimportant bonding to occur.
Resolving this inequality
should be the key objective
of any paid maternity leave
scheme.”66
A range of arguments have
been raised as to why it was
not a good idea for the Federal
Government to introduce a
paid parental leave scheme.
The arguments related to
the cost it would impose on
the funder; its potential to
increase the gender wage gap and to be a disincentive
to employ women; and its unfairness because it is
not provided to parents who do not work and those
who do not satisfy eligibility requirements.
Some commentators had argued that paid maternity
leave should replace the government’s Baby Bonus
scheme67. The Baby Bonus is a one-off payment
of $5,000 (paid in 13 fortnightly sums), but unlike
maternity leave it does not provide a right to return to
work. Families with an estimated income of $75,000
for the six months following the birth are not eligible
breaking  news 
for the Baby Bonus68. The Courier-Mail reported
on 15 May 2008, that a senior Labor figure said it
was a “‘logical extension’ for the baby payment to be
converted into full-blown maternity leave”69.
In an article in the Sydney Morning Herald in March
2008, Pru Goward MP, a former Sex Discrimination
Commissioner, wrote about the HREOC’s 2002
proposal for a national government-funded paid
maternity leave scheme as follows:70
The decision by the government of the day [the
Howard government] to reject paid maternity leave
and instead provide a lump-sum amount available
to all who had children was a disappointing
demonstration of its misunderstanding of paid
maternity leave.
Paid maternity leave was
not a trick way of giving
money to elite working
women. It was about giving
mothers time, in particular
some time off work after
childbirth to physically
recover and cope with
the demands of a 24-hour
feeding cycle. It also gave
our babies time – at least
a few weeks – with their
mothers. You only got the
payment if you stayed at
home.
The Hon Malcolm Turnbull
MP credits the Baby Bonus
with reversing Australia’s
declining fertility rates. He
was quoted by the ABC explaining the rationale for
the instigation of the Baby Bonus71:
Children are not a private indulgence, they are the
future of all of us.
The introduction of the baby bonus by the Howard
government was a powerful statement of the
importance of children and the commitment of the
government representing the whole community, to
support families in that very expensive period that
comes following the birth of a baby.
Until January 2011, Australia will remain as one of
only two countries in the Organisation for Economic
Cooperation and Development (OECD)72 that does
not have a national paid maternity leave scheme (the
United States is the other country)73.
Each country with a parental leave scheme organises
it somewhat differently. In examining the schemes
of other countries (as well as that proposed for
Australia), there are a number of pertinent features;
the Productivity Commission identified these as74:
• the amount of parental leave payments (i.e., how
much is paid?)
• eligibility requirements (i.e., who gets it?)
•
the length of leave
offered (i.e., how long is the
leave?)
•
the manner in which the
programs are funded (i.e., who
pays for it?)
In New Zealand, eligible
employees are able to
access paid and unpaid
parental leave. Under the
New Zealand system, both
paid and unpaid parental
leave provide employees
with job protection.
New Zealand introduced
12 weeks of governmentfunded paid parental leave
in 2002. The period of leave
was extended to 14 weeks in
2005. Since 2006, the self-employed and employee
parents who meet certain work requirements are
able to receive 14 weeks government-funded paid
parental leave75. Generally the mother receives the
paid parental leave but she can transfer all or part of
her leave to her spouse or partner (provided eligibility
requirements are met). However, if a mother is
ineligible for the leave but the father is eligible, he is
unable to use the leave76.
Employees on paid parental leave are paid the lesser
of their gross weekly rate of pay or NZ$391.28 (tax
is paid on the amount)77. Employers may increase
an employee’s entitlements by, for example, making
breaking  news 
additional payments or providing lump sum payments
upon return to work.
Eligible New Zealand parents have been able to take
unpaid leave from their place of employment since the
enactment of the Parental Leave and Employment
Protection Act 1987 (NZ)78. To be eligible for up to 52
weeks unpaid parental leave (the amount of unpaid
leave available is reduced by the total amount of
paid parental leave taken), an employee must have
at least 12 months continuous eligible service with
an employer. The unpaid leave must be taken in a
block and can be shared between the parents if both
are eligible, but must not be more than 52 weeks in
total79.
Paternity/partner’s leave is in addition to the 52
weeks of extended unpaid
leave. Employees who
have worked for the
same employer who
have at least six months
of eligible service are
able to take one week of
unpaid paternity/partner’s
leave. Employees who
have at least 12 months
of eligible service with
an employer are entitled
to two weeks of unpaid
paternity/partner’s leave.
The leave must be taken
some time between 21
days before the expected
date of birth and 21 days
after the date of birth,
unless another date is
agreed upon between employee and employer.
The New Zealand Department of Labour reviewed
the Parental Leave and Employment Protection Act
1987 (NZ) in 2005-06 to determine whether the Act
was meeting its objectives80. Amongst other things,
the study found that it is generally only mothers
who take paid parental leave and extended unpaid
parental leave. However, there was support among
both parents and employers for parental leave and
there was recognition that both job protection and
payments are important for parents at the time of the
birth of a child81. The study also found that “better
educated, higher earning women in the core labour
market, and who tend to work in the main urban
areas” were the most likely to be eligible for parental
leave while “[m]ore disadvantaged mothers in terms
of household incomes and number of children to
support are over represented amongst those missing
out on eligibility for parental leave and its associated
payment”. In relation to this, the authors noted:
A similar pattern has been demonstrated in Canada,
with research suggesting that eligibility criteria for
[paid parental leave] can reinforce rather than
reduce disadvantage in the labour market…82
Canada has an employment insurance (EI) scheme
which provides financial assistance to eligible
workers who are pregnant or caring for an infant83.
Canadians are able to receive maternity and parental
benefits for up to a maximum of 50 weeks if they are
able to show:
• their weekly earnings
have decreased by more
than 40 percent, and
• they have accumulated
600 insured hours in the
last 52 weeks or since their
most recent claim
The basic EI payment,
which is taxable, is 55
percent of an employee’s
‘average
insured
earnings up to a yearly
maximum
insurable
amount of $41,100’. That
is, a parent can receive a
maximum of C$435 per
week84.
Maternity benefits are
paid for a maximum of 15 weeks to the birth mother
or surrogate mother. Benefits can be paid from eight
weeks prior to the expected date of the baby’s birth85.
If an employee works while receiving maternity
benefits, earnings are deducted on a dollar for dollar
basis from her benefits86.
Parental benefits are payable for a maximum of 35
weeks. The benefits can be shared by both parents
or paid to just one parent87. If an employee works
while on parental benefits, the employee may earn
the higher of $50 per week or 25 percent of the
amount of weekly benefits before earnings will be
deducted dollar for dollar from benefits88.
breaking  news 
Since 2002, employees in Iceland who have worked
for at least six consecutive months prior to the birth of
the child, have been entitled to at least three months
parental leave at 80 percent of their average pay89.
A further three months of leave can be taken by
either parent although, generally, the mother takes
six months leave and the father takes three months
leave. With employer approval, an employee can
take 12 months leave at half pay90. Parental leave is
financed by social insurance91.
Fathers in Iceland use a greater proportion of parental
leave (35 percent) than fathers in other OECD
countries. Some consider that the paid parental
leave scheme “has improved the status of women
in the workplace as young men now pose [an] equal
‘risk’ as women of having to take time off when they
have children”92.
In January 2008, the
Deputy Prime Minister and
Minister for Employment
and
Workplace
Relations93, the Hon Julia
Gillard MP, announced the
Productivity Commission
would hold an inquiry into
a national paid parental
leave scheme94. During
2008, the Productivity
Commission
sought
submissions
and
comment on its Issues
Paper, either in writing
or at its public hearings
or community consultations95. Its report, which was
publicly released on 12 May 2009, recommended
that the Australian government introduce a statutory
taxpayer-funded paid parental leave scheme which
provides paid parental leave at the adult federal
minimum wage (currently $543.78 per week) for a total
of 18 weeks that can be shared by eligible parents,
with an additional two weeks of paternity leave for the
father (or the same sex partner) who shares in the
daily primary care of the child. The payment would
be taxable and taken into account when determining
whether a person is eligible for certain income-tested
welfare payments. To be eligible for paid parental
leave, a person would have to be the child’s primary
carer and have worked for at least 10 months of
the 13 months prior to the expected date of birth or
adoption for at least 330 hours96.
While the Australian Government has promised
to implement the Productivity Commission’s
recommendation with respect to paid parental leave
of 18 weeks at the federal minimum wage for the
primary carer, it opted not to adopt the Commission’s
recommendation regarding two weeks of paternity
leave.
To be eligible for the paid parental leave (PPL)
scheme, the primary carer:97
• must have an adjusted taxable income of $150,000
or less in the financial year prior to the date of the
birth or the adoption of the child;
• must have worked
continuously with one or
more employers for at least
10 of the 13 months before
the expected date of birth
or adoption; and
• must have worked at
least 330 hours in those 10
months (equivalent to about
a full day of work each
week).
The
Government
estimates that about
148,000
people
will
be eligible for the
Paid Parental Leave
scheme (PPL) each
year.
Employers will
pay parents the PPL
payments and the government will reimburse them.
Parents who receive PPL will not be eligible for the
Baby Bonus (except in the case of multiple births)
or Family Tax Benefit Part B during the PPL period.
Parents will, however, continue to be able to access
employer-funded paid parental leave98. The scheme
is expected to cost approximately $260 million per
annum99. The Government has promised to introduce
the requisite legislation before the next election100.
breaking  news 
Notes
Notes
1 “Interview with Laurie Oakes”, Today on Sunday, Channel 9, 10
May 2009, downloaded 19 May 2009 from website at http://www.
treasurer.gov.au/DisplayDocs.aspx?doc=transcripts/2009/074.
htm&pageID-004&min=wms&Year=&DocType=2.
2 See, for example, Australian Government, Productivity
Commission, “Paid Parental Leave: Support for Parents with
Newborn Children”, Productivity Commission Inquiry Report, No 47,
28 February 2009, pp xviii-xix.
3 See, for example, section 17 of the Industrial Relations Act 1999
(Qld).
4 See, for example, section 17 and 18 of the Industrial Relations Act
1999 (Qld). The term ‘paternity leave’ is not used in the Queensland
Act; the terms are ‘short parental leave’ and ‘long parental leave’.
5 Section 18 of the Industrial Relations Act 1999 (Qld). Similar
provisions apply in other Australian jurisdictions, but there are some
slight differences between the eligibility requirements in the different
jurisdictions.
6 Section 25(1) of the Industrial Relations Act 1999 (Qld).
7 Section 32 of the Industrial Relations Act 1999 (Qld).
8 Section 29B(1) of the Industrial Relations Act 1999 (Qld) provides
that an employee on parental leave may apply to the employer
to return to work on a part-time basis. Employees must not
unreasonably refuse an application: section 29D(2) of the Act.
9 Whitehouse G, Baird M and Diamond C., “Highlights from
the Parental Leave in Australia Survey, December 2006”, 2006,
downloaded 28 April 2008 from http://www.polsis.uq.edu.au/index.
html?page=55767.
10 Whitehouse G, Baird M, Diamond C and Hosking A., The Parental
Leave in Australia Survey: November 2006 Report, p11, Tables 6 and
7.
11 Human Rights and Equal Opportunity Commission (HREOC), A
Time to Value: Proposal for a National Paid Maternity Leave Scheme,
Sydney 2002, p28, downloaded from http://www.humanrights.gov.au/
sex_discrimination/paid_maternity/pml2/Atimetovalue.pdf.
12 Australian Government, Productivity Commission, “Paid Parental
Leave: Support for Parents with Newborn Children”, Productivity
Commission Inquiry Report, No 47, 28 February 2009, p xvi.
13 Apart from those which are footnoted, the examples provided
are from Australian Government, Productivity Commission, “Paid
Parental Leave: Support for Parents with Newborn Children”,
Productivity Commission Inquiry Report, No 47, 28 February 2009,
Table 3.2, p 3.6.
14 BHP Billiton, “Introduction of Standardised Paid Parental
Leave”, 8 May 2009, downloaded 19 May 2009 from website
at http://www.bhbbilliton.com/bb/investorsMedia/news/2009/
introductionOrStandardisedPaidParentalLeave.jsp.15
Directive No 5/08: Paid Parental Leave, July 2008, p3.
16 “Paid parental leave at Myer”, Myer Media Release, 27 March
2008, downloaded 23 June 2008 from http://www.myer.com.au/
whatson/media/Paid%20Parental%20Leave%20Release.pdf.
17 Rumble, C., “Maternity pay up but there’s a catch”, Age, 20
August 2006. Star City Sydney Hotel and Casino, for example,
provides six weeks paid maternity leave of which three weeks is
paid at the start of the leave and the remaining three weeks is paid
upon the employee’s return to work.
18 Australian Bureau of Statistics (ABS), 4102.0 – Australian Social
Trends, 2007, “Maternity Leave Arrangements”, issue released 7
August 2007, p1, downloaded 11 February 2008.
19 ABS, “Maternity Leave Arrangements”, p2, Table: Women
employees (a): selected characteristics by use and duration of
leave related to birth – 2005. This leave was not necessarily paid
or unpaid maternity leave; leave also includes holiday leave, long
service leave and leave without pay.
20 ABS, “Maternity Leave Arrangements”, p1.
22 ABS, “Maternity Leave Arrangements”, pp 3-4.
24 ABS, “Maternity Leave Arrangements”, pp 3-5.
25 The survey findings are based on about 3,500 responses to a
survey from parents with young children: “Highlights from The
Parental Leave in Australia Survey”.
26 Whitehouse G, Baird M, Diamond C and Hosking A., The Parental
Leave in Australia Survey: November 2006, Table 7, p11.
27 United Nations Division for the Advancement of Women
Department of Economic and Social Affairs, “Convention on
the Elimination of All Forms of Discrimination Against Women”,
downloaded 16 June 2008 from http://www.un.org/womenwatch/daw/
cedaw/.
28 The Convention on the Elimination of All Forms of Discrimination
Against Women is available at http://www.un.org/womenwatch/daw/
cedaw/.
29 Australia ratified the Convention on 27 August 1983: Office of the
United Nations High Commissioner for Human Rights, “Status of
Ratifications of the Principal International Human Rights Treaties, as
of 9 June 2004”, downloaded 4 June 2008 from http://www.unhchr.
ch/pdf/report.pdf.
30 United Nations Treaty Collection [as of February 2002],
Declarations and Reservations, downloaded 12 February 2008 from
http://www.unhchr.ch/html/menu3/b/treaty9_asp.htm.
31 Recommendation 44.
32 LO, C183 Maternity Protection Convention 2000.
33 Article 4 of the Maternity Protection Convention 2000.
34 Article 6(2) of the Maternity Protection Convention 2000.
37 Article 8 of the Maternity Protection Convention 2000.
38 “Convention No C183”, downloaded 20 May 2009 from http://
www.ilo.org/ilolex/cgi-lex/ratifce.pl?C183
39 HREOC, A Time to Value: Proposal for a National Paid Maternity
Leave Scheme, Sydney, 2002, p119.
40 Katharine Murphy, “Leave for New Dads a Step Still Too Far”,
Sydney Morning Herald, 13 May 2009, downloaded 20 May 2009 from
website at http://business.smh.com.au/business/dfederal-budget/
leave-for-new-dads-a-step-still-too-far-20090512-b1yf.htm.
Leave Scheme, p xvii.
42 REOC, A Time to Value: Proposal for a National Paid Maternity
Leave Scheme, p xv-xvi.
43 See, for example, HREOC, It’s about time: Women, men, work and
family, Sydney, 2007, pp83-84.
44 HREOC, It’s About Time: Women, Men, Work and Family, Sydney,
2007, pp 83-85.
45 The Bill is an updated version of a Bill introduced by Senator
Stott Despoja in 2002.
46 Senator Stott Despoja, Workplace Relations (Guaranteeing
Paid Maternity Leave) Amendment Bill 2007 (Cth), Second Reading
Speech, Senate Parliamentary Debates, 13 September 2007, pp6-7.
47 Productivity Commission, Public Hearing Transcripts, Sydney 20
May 2008, p372.
48 “Unions, business and HREOC: paid maternity leave vital for
Australia’s economy and working families”, Media Release, 8 April
2008.
49 Nickless, R. “Support for paid maternity leave grows”, Australian
Financial Review, 9 April 2008.
50 Productivity Commission, “Paid Maternity, Paternity and Parental
Leave: Public Hearings”, Sydney, 20 May 2008, p346.
51 Egan C, “Goward attack: mums betrayed”, Sydney Morning
Herald, 23 March 2008 and Schneiders B, “Maternity leave stalls
promotion”, Age, 4 June 2008.
breaking  news 
Notes
Notes
52 The recommendations are on pp 11-15 of the Report of the Select
Committee on Balancing Work and Life Responsibilities, House of
Assembly, Parliament of South Australia, 9 April 2008, downloaded
11 June 2008.
53 Report of the Select Committee on Balancing Work and Life
Responsibilities, p13. The report elaborates on some aspects of the
Nordic model that the Committee considered beneficial to balancing
work and life responsibilities.
54 Australian Government, Department of Education, Employment
and Workplace Relations, Discussion Paper: National Employment
Standards Exposure Draft, 2008, p2.
55 Sections 14, 16-18 and 21-22 of the NES.
56 Section 29 of the NES.
57 Section 28 of the NES.
58 For example, the Construction Forestry Mining Energy Union and
the Commonwealth Public Sector Union.
59 World Health Organisation, “Nutrition: The World Health
Organisation’s infant feeding recommendation”, downloaded 19
May 2009 from http://www.who.int/nutrition/topics/infantfeeding_
recommendation/en/index.html.
60 Senator Stott Despoja, Workplace Relations (Guaranteeing
Paid Maternity Leave) Amendment Bill 2007 (Cth), Second Reading
Speech, Senate Parliamentary Debates, 13 September 2007, p7.
61 Hon Julia Gillard MP, “Transcript: Sydney Press Conference:
Myer paid maternity leave”, 27 March 2008, published 28 March
2008, downloaded 19 May 2008 from http://mediacentre.dewr.gov.au/
mediacentre/AllReleases/2008/March/.
62 Hon Julia Gillard MP, “Transcripts: Sydney Press Conference:
Myer paid maternity leave”.
Leave Scheme, p49.
64 Equal Opportunity for Women in the Workplace Agency, “Paid
maternity leave – the business case: Attract and retain talented
staff”, downloaded 16 April 2008 from http://www.eowa.gov.au/
Developing_a_Workplace_Program/Employemnt_Matter_Resources/
EM_5_Resources/EOWA_Paid_Mat_Leave_Info/The_Business_Case.
htm.
65 Schneiders, B., “Blokey union seeks baby leave for dads”, Age,
13 May 2008.
66 Broderick E, Burrow S, Ridout H., “Maternity scheme is overdue”,
Age, 8 April 2008.
67 See, for example, Productivity Commission, Public Hearing,
Sydney, 20 May 2008, p345.
68 Australian Government, Centrelink, “Who Can Get the Baby
Bonus?” last modified 25 February 2009, downloaded 26 May 2009
from website at http://www.centrelink.gov.au/internet/internet.nsf/
payments/qual_how_maty.htm.
69 Porteous C, “Baby Steps: Budget puts maternity leave on
agenda”, Courier-Mail, 15 May 2008, p1.
70 Goward P, “Paid leave for mums a given”, Sydney Morning
Herald, 23 March 2008.
71 “Means testing baby bonus too expensive: Turnbull”, ABC News,
2 May 2008.
72 The OECD comprises 30 countries: Australia, Austria, Belgium,
Canada, Czech Republic, Denmark, Finland, France, Germany,
Greece, Hungary, Iceland, Ireland, Italy, Japan, South Korea,
Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland,
Portugal, Slovakia, Spain, Sweden, Switzerland, Turkey, United
Kingdom and the United States. The aim of the organisation is to
improve the economic position of its members and to assist nonmember countries.
73 Productivity Commission, p27.
74 Productivity Commission, Attachment A: Paid and unpaid
parental leave in Australia, pp 27-30.
75 Department of Labour, Parental Leave in New Zealand 2005/2006
Evaluation, May 2007, p1.
Evaluation, p61.
77 Department of Labour, Fact Sheet: What paid and unpaid leave is
available and when does it start? last updated on 25 October 2007,
see http://ers.govt.nz/parentalleave/employees/what-is-availableprint.html.
78 Unpaid leave for women employees was introduced in the early
1980s: Department of Labour, Parental Leave in New Zealand
2005/2006 Evaluation, May 2007, p1.
79 Department of Labour, Fact Sheet: What paid and unpaid leave is
available and when does it start?
Evaluation, p57.
Evaluation, p57.
Evaluation, p58.
83 “Employment Insurance Maternity and Parental Benefits”, last
modified 30 July 2007, downloaded 17 June 2008 from http://www1.
servicecanada.gc.ca/en/sc/ei/benefits/maternityparental.shtml.
84 “Employment Insurance (EI) and Regular Benefits: How much will
you receive?” last modified 18 January 2008, downloaded 30 May
2008 from website at http://www1.servicecanada.gc.ca/en/ei/types/
regular.shtml.
85 “Employment Insurance (EI) and Maternity, Parental and Sickness
Benefits: Maternity benefits”.
Benefits: Working while on maternity, parental and sickness
benefits”.
Benefits: Parental benefits”.
88 The thresholds are higher in some economic regions of Canada:
“Employment Insurance (EI) and Maternity, Parental and Sickness
Benefits: Working while on maternity, parental and sickness
benefits”.
89 “Paid maternity and paternity leaves in Iceland”, published 6
February 2006, see http://www.icelandinfocus.com/index.php?/
article/paid_maternity_and_paternity_leaves_in_iceland/.
90 “Paid maternity and paternity leaves in Iceland”.
91 OECD, p124. Social insurance in Iceland is financed through
premiums on wages paid by employers to the State Treasury.
92 “Paid maternity and paternity leaves in Iceland”.
93 Hon Julia Gillard MP is also the Minister for Education and the
Minister for Social Inclusion.
94 Dibben K. “Inquiry on paid baby leave”, Sunday Mail, 20 January
2008, p17.
95 Transcripts of the hearings and copies of written submissions
to the Productivity Commission are available on the Productivity
Commission website: http://www.pc.gov.au/inquiry/parentalsupport.
96 Australian Government, Productivity Commission, “Paid Parental
Leave: Support for Parents with Newborn Children”, Productivity
Commission Inquiry Report, No 47, 28 February 2009, pp xxxix-xlv.
There were also recommendations made with respect to payment of
superannuation and other matters.
97 Hon Julia Gillard MP, Minister for Education, Minister for
Employment and Workplace Relations, Minister for Social Inclusion
and Deputy Prime Minister, “BUDGET 2009-10: Rudd Government
Delivers Paid Parental Leave”, Media Release, 12 May 2009,
downloaded 20 May 2009
98 Hon Julia Gillard MP, “BUDGET 2009-10: Rudd Government
Delivers Paid Parental Leave”, Media Release, 12 May 2009.
99 Hon Kevin Rudd MP, Prime Minister, “Rudd Government to
Introduce Paid Parental Leave”, Media Release, 10 May 2009,
downloaded 25 May 2009
100 Stephanie Peatling, “And Baby Makes Two Leave Payments for
Parents”, Sydney Morning Herald, 12 May 2009.
in the community
“The key to doing well was working together
as a team. By the time Saira and I reached
Vienna, we had learnt to work very well together.
Without the help of our coaches and the other
two team members, Saira and I would have
struggled,” Nicholas said.
Therese Wilson and Mary Keyes from Griffith
Law School coached the pair, and said the
drive and commitment of Nicholas and Saira,
as well as the respect they showed other teams
and arbitrators competing was a credit to the
law school.
“We are proud of their consistently high
performances in all of the moots,” Ms Wilson
said.
Two Griffith Law School teams have made
it to the semi-finals in separate prestigious
international moot and client counselling
competitions in April.
Nicholas Rudd and Saira Khan earned
equal third place at the annual Willem C. Vis
International Commercial Arbitration Moot in
Vienna. The competition for law students from
across the World is aimed at fostering the study
of international commercial law and arbitration
for resolution of business disputes.
The pair contested each general round of the
forensic and written exercises, and competed
in a sudden death round where they were
narrowly defeated by Victoria University in
Wellington, New Zealand who took out the
overall victory.
Nicholas also received an honourable mention
in the individual oralist awards, bestowed upon
fewer than five percent of the compettion’s
participants.
Competing in the Louis M. Brown International
Client Counselling Competition in Las Vegas,
Karyn Bell and Lisa Loi had just three weeks
to prepare when they were invited to compete
when another team withdrew.
The competition provides law students with the
opportunity to learn and practise interviewing
and counselling skills. Teams from 19 countries
participated in this year’s event.
With coach Jeff Giddings, Karyn and Lisa were
given a one-sentence memo from which they
had to research and prepare a mock client
meeting about a negligently prepared will.
“We had a 45 minute interview with the client,
where we asked questions in order to provide
appropriate preliminary legal advice, followed
by a post meeting reflection where we looked
at further action and task lists,” Karyn said.
It is the fifth time Griffith University has
represented Australia in the competition in the
past 12 years.
law week poster competition
The winner is...
The Queensland Law Society received a surprising response to this year’s Law Week
Poster Competition, run as part of the Law Week celebrations across the State. An
initiative of the QLS Schools and Community Education Service (SCES), the annual
competition calls for students in both
primary and secondary schools to
design a poster using the theme ‘the
law and your community’. Year 6
student, Emma Irwin was the overall
winner of this year’s competition,
with her creative and colourful entry,
and her poster became the official
Queensland Law Society Law Week
poster, displayed during national
Law Week celebrations (11-16 May)
and on the SCES website (sces.
qls.com.au). Coordinator of the
Schools and Community Education
Service, Ms Calista Bruschi, said the
poster competition was to engage
students at all levels in learning
more about the law. Queensland Law
Society President, Mr Ian Berry,and
Chief Executive Officer, Mrs Noela
QLS
CEO
Noela
L’Estrange
and
President
L’Estrange presented Emma with her
Ian Berry present winner
award.
Emma Irwin with her
THE
FINALISTS...
certificate and framed
artwork.
law week poster competition
in the community
Students benefit from conference in the North
Townsville’s St Anthony’s Catholic College
combined with the James Cook University
Faculty of Law to host more than 400 legal
studies students from schools across North
Queensland at the inaugural JCU/St Anthony’s
Legal Studies Students Conference in April.
The conference was especially coordinated for
students studying legal studies in secondary
school, and provided valuable information on
current legal issues and real life accounts from
members of the local legal community, as well
as lecturers in Law at James Cook University.
Officially opened by Pro Vice Chancellor
of Law, Business and Creative Arts at the
university, Professor Robin Woellner, the
conference also featured a keynote address
on the Drug and Murri Courts from Magistrate
Stephanie Tonkin.
Head of Department SOSE and Business
Education at St Anthony’s Catholic College
said an important objective of the conference
was to provide Year 12 students with an area of
interest which could be investigated further for
their major research assignment.
“This includes issues such as Customs
and Border Protection services, player
conduct provisions in sport, criminal forensic
investigation, international criminal courts, and
the Coroner’s Court,” said Ms Imarisio.
The conference included speakers such as
Senior Sergeant Lloyd Arthy of Townsville’s
Forensic Police, Dr Chris Davies who lectures
in Sports Law at James Cook University, and
Mr Dom Rucci and Mr Grant Nissen of the
Australian Customs and Border Protection
Service.
Students also welcomed the session tackling
the legal issues faced by today’s youth, and
in particular the obligations of attending
events such as Schoolies. With many
students nearing the end of formal schooling,
the information provided in this session
encouraged responsible decision making whilst
celebrating their academic achievements.
“The positive response from students, together
with the support and encouragement from the
Townsville community in putting this conference
together has been wonderful,” Ms Imarisio said.
discussion  point 
Responsible
Service
Tough new legislation
for adults supplying
alcohol to minors
by Renee Gastaldon
Renee Gastaldon works within the General
Distribution Research team of the Parliamentary Library. She completed a law and
applied science degree at QUT in 1999,
graduating with first class honours and a
university medal in law. Renee has expertise in corporate law, banking and finance,
local government and town planning law.
I
n September 2008, the Queensland Legislative
Assembly passed the Liquor and Other Acts
Amendment Act 2008 (Qld), making a number
of amendments to the Liquor Act 1992 (Qld)
including the provisions addressing the
practice of adults irresponsibly supplying
alcohol to young people under 18 years of age
at private premises.
The issue of supplying alcohol to young people
under 18 years of age (minors) at private premises,
is sometimes referred to as ‘secondary supply’ of
alcohol to minors, and typically involves parents,
older friends or older siblings supplying the alcohol.
The issue of adults supplying alcohol to minors at
private premises predominantly arises in the context
of young people’s parties and the annual Schoolies
Week celebrations1. It has received considerable
media attention, and been the subject of community
discussion, for some time. More notable recent
events include:
•• school students attending unsupervised
‘pre-Schoolies’ celebrations at North
Stradbroke Island accompanied by 19
cartons of spirits and beer worth about
$2,000, which they claim had been bought
for them by their parents2
•• students being dropped off at their
Schoolies Week units by their parents with
‘bootloads’ of alcohol3
Some of the discussion about secondary supply
involves how Australian families can appropriately
balance the practice of introducing children to alcohol
before they reach 18 years of age, with the need to
protect young people from the harm they face when
irresponsibly supplied with alcohol.
In relation to the timing of the passage of the Act and
the impending 2008 Schoolies Week celebrations,
the Hon Andrew Fraser MP, said “this new law is
particularly timely as we head towards our annual
Schoolies celebrations… It will mean
that there is no question about the fact
that loading up 17-year-old kids with
a week’s supply of alcohol and saying
‘good luck’ is out of the question”4.
In a survey conducted by the Sunday
Mail by Queensland Health prior to the
Act, one third of parents admitted they
intended supplying their underage
children with alcohol for Schools
Week 2008, saying they would do so
because they trusted their children,
or because, by supplying the alcohol,
they believed they could control how
much their child had to drink5.
the issues relating to adults supplying alcohol to
minors at private premises.
The Australian Government Department of Health
and Ageing report Alcohol Consumption Patterns
Among Australian 15-17 Year Olds from 2000 to
20047 discussed the alcohol consumption patterns
of teenagers aged 15 to 17 years, based on the
findings of five national surveys conducted as part
of an evaluation of the National Alcohol Campaign
launched in February 2000.
The report found that, in 2004, teenagers rated their
parents’ rules on drinking alcohol as follows8:
•• 19 percent say ‘very strict’
•• 20 percent feel their parents are ‘strict’
•• 36 percent believe their parents have
‘moderate’ rules on drinking alcohol
••
11 percent have ‘few rules’
••
4 percent are bound by ‘no
rules’ at all from their parents
For teenagers who had, in 2004,
consumed alcohol in the three
months prior to the February survey,
the report found that the situations in
which they had consumed alcohol,
with or without adult supervision,
were at a friend’s house (35 percent),
at a party (33 percent), at home with
their parents or their parents’ friends
(30 percent), and at home with their
own friends (13 percent)9.
In April 2007, the Queensland Parliamentary Library
published Our Binge Drinking Culture, considering
the issue of binge drinking in Australian culture by
examining various studies which showed the patterns
of alcohol consumption across different groups in the
community, together with the effects of (and possible
reasons for) alcohol misuse6. Detailed consideration
was given to young people, and to young women in
particular. The ‘secondary supply’ issue was also
addressed.
Teenagers who drank at a friend’s house or at a party
were more likely to have consumed alcohol at higher
risk (friend’s house: 42 percent, party: 45 percent)
than lower risk levels (friend’s house: 31 percent,
party: 24 percent). Those who drank at home with
their own friends were also more likely to have done
so at higher risk (17 percent) than lower risk (11
percent) levels. In contrast, teenagers who drank at
home with their parents or their parents’ friends were
more likely to have done so at lower risk (37 percent)
levels10.
Adults supplying alcohol to minors at
private premises
Most teenagers, in 2004, obtained their alcohol as
follows11:
Two reports providing information on minors
consuming alcohol at private premises best highlight
•• provided/bought by older friends or siblings
(42 percent)
•• provided by parents to drink under
supervision (38 percent)
In relation to the ‘secondary supply’ issue, the report
stated:
[Teenagers who obtained alcohol from older
friends or siblings] were … more likely to be higher
risk drinkers, while those who consumed alcohol
under parental supervision were more likely to be
younger, to report that their parents had strict rules
on drinking and to drink at lower risk levels …
The relationship between parental supply and
supervision, and the prevalence of risky teenage
drinking is clearly important. With respect to
supply, teenage reports on parental provision of
alcohol suggest that the majority of parents who
do provide alcohol to their teenagers are doing so
in a way that does not appear to be associated
with higher risk drinking. …12
In a report produced by the
Cancer Council of Victoria for the
Government’s National Drug Strategy,
the Australian Secondary School
Students’ Use of Alcohol in 200513,
detailed the results of a national survey
on the use of alcohol by Australian
secondary school students. In terms
of parents supervising the drinking of
underage young people, the report
stated:
These findings suggest that many
parents are not supportive of their
children being in unsupervised drinking situations
and that parents are exercising caution when
providing alcohol to their children. The results also
imply an acceptance by parents of drinking by their
adolescent children. While the question on adult
supervision does not provide information as to the
extent of this supervision, it appears that students
who responded to this question… believed an adult
was overseeing their drinking behaviour.
Arguments for and against ‘secondary
supply’ at private premises
Diversity in parental opinion about the appropriate
introduction of young people to alcohol has been
seen as one of the challenges authorities face in
dealing with risky underage drinking14. It would be
fair to say that this diversity also reflects the opinions
of those in the broader community.
The publication Our Binge Drinking Culture, stated
that parents have a range of opinions regarding
the most desirable relationship between alcohol,
themselves and their children15. These include:
•• a view that ‘at least alcohol is not as bad
as illicit drugs’, and that at least parents are
more familiar with alcohol than they are with
other drugs
•• support for the use of alcohol by teenagers
under parental supervision
•• a total ban on alcohol used by underage
teenagers
There are reports that some parents feel ‘powerless
and overwhelmed by the issue of underage drinking’
and that alcohol can be the ‘flashpoint
for insecurities about parenting’.
This may partly stem from conflicting
information available to parents,
some of which advises that the longer
children are kept away from alcohol
the better, and other information
which supports a gradual, supervised
introduction to alcohol.
In other
instances, parents who themselves
misuse alcohol may have difficulty
in reinforcing positive behaviours
towards alcohol by their children.16
Arguments accepting
parents supplying alcohol to their
underage children
The Australian Alcohol Guidelines17 state that drinking
by young people is very common in Australia, although
there are many young people who do not drink. There
is a range of views about the optimal age to start
drinking. A number of cultural groups in Australia
introduce children to very diluted alcohol at a young
age. It goes on to state that helping young people to
learn about drinking and the effects of alcohol within
a safe and supportive environment can help them to
manage their drinking in ways that minimise the risk
to themselves and others, both when they are young
and throughout their adult years.
Traditionally, it has been considered the right of
parents to decide when and how their children first
try alcohol. The ‘Mediterranean model’ of introducing
alcohol to young people where they are gradually
allowed to drink small amounts in the presence of
their parents, has been popular with many parents.
However, the concerning levels of binge and
underage drinking in Australia suggests that this has
not worked18.
Some believe it is for parents to set rules for their
children that are consistent with their own use of
alcohol, and that it is people other than parents who
should be banned from supplying alcohol to minors19.
One commentator said about the criticism directed at
parents who supply alcohol to their children:
No parent wants their underage teenagers to drink.
Few parents relish the thought of them heading
off to a party knowing that they might be drinking.
Very few actively encourage their teenagers to
drink alcohol – an activity deemed to be adult,
but which falls between legal and
cultural cracks.
Teenagers are doing it, whether
their parents want them to or
not.
The voices criticising loudest …
have been those of people who
are raising children of a different
age or who are in a subset
unexposed to it. It is easy to sit
under judgement of other parents
from afar. Is it better to have a
teenager drinking alcohol provided
at home, or to do it on the sly? Is it better to provide
a supervised, safe venue, or send a teenager
elsewhere? Is it better to teach moderation, or
close eyes and hope they are sensible? These
are questions that torment teens’ parents.20
It has also been said that alcohol consumption by
17-year-olds during the Schoolies Week celebrations
[had been] blamed squarely on parents for providing
their children with booze. Forget about context, or
that most parents realised their teens would obtain
alcohol and wanted to have a say in what was
consumed; forget that most parents agonise over the
drinking dilemma; or that by-and-large this generation
of mums and dads have swung away from the
autocratic approach of their parents and try to listen
and be fair: critics are quick to judge the parents of
teens as bad, bad, bad21.
Parents have pointed to the pressures they face
in dealing with the issue of supplying alcohol to
their children, saying ‘at the same time we have
deregulated our approach to alcohol, another cultural
shift has occurred in our attitudes to parenting. We
want to be friends with our teenage children, not
only parents. With more liberal attitudes to raising
families, we don’t want to be the “daggy” parents who
forbid alcohol at our teenagers’ birthday parties. I
think we have lost the plot, as we bend not only to
the McDonald’s drive-in pester power of four-yearolds, but also to the ferocity of the 16-year-old’s
accusations of being “uncool” parents. And we worry
that other parents will think we are backward’22.
Arguments against parents supplying
alcohol to their underage children
Some opponents to parental introduction of minors
to alcohol argue that parents who allow their children
small amounts of alcohol in an
attempt to instil safe drinking habits
may be setting them on the path to
becoming binge drinkers23.
An article in the Courier Mail
stated:
There is no excuse for parents
to give their teenage children
alcohol. Let’s be frank here. The
legal drinking age is 18, so to
offer alcohol to adolescents and
children below this age is breaking
the law. Being at home makes no difference.
To suggest, as some parents do, that giving alcohol
early to teenagers ‘bloods’ them and teaches them
how to handle grog, is palpably irresponsible. It
is simply indefensible and an abrogation of good
parenting. …
There is a direct and causal link between early
alcohol consumption and binge drinking. Just
about any parent, if they were to be accused of
being instrumental in encouraging binge drinking, is
likely to throw up their hands and plead innocence.
Wrong. Research into binge drinking is showing
that this initiation is traceable to parents. …
So much for those well-meaning ‘cool’ parents
who supplied their teenage children with slabs
of alcohol for Schoolies, and the promise of a
thumping ‘good time’.24
Liquor law reform in Queensland
In March 2005, the Queensland Government
released the Brisbane City Safe Action Plan, a
17-point plan to address issues, particularly violence,
related to alcohol consumption on premises trading
after 1am in the Brisbane City Council area25. One
recommendation in the Plan was for the Liquor Act
1992 (Qld) to be reviewed to ensure it reflected
current community attitudes, including concerns
about alcohol abuse and binge drinking. The review
was undertaken by the Liquor Licensing Division of
the Office of Liquor, Gaming and Racing.
The Report on Liquor Reform in Queensland was
released in December 200726. It presented three
strategies underlying liquor reform in Queensland,
namely legislative reform to the
Liquor Act 1992 (Qld), licence type
and fees restructure, and building
safer drinking cultures. The paper
considered the ‘secondary supply’
issue27 and stated a proposal
to make it an offence under the
Liquor Act 1992 (Qld) to recklessly
supply alcohol to minors. The
offence would be punishable by a
maximum penalty of $3,000.
A Regulatory Impact Statement/
Draft Public Benefit Test was
released for public consultation in February 2008,
and over 8,400 submissions were received. The
Government’s final policy positions on the liquor
reforms were contained in the Outcomes of the
RIS/DPBT public consultation process for the liquor
reforms, released in April 2008.
The final outcomes of the review of the Act were
published in Final Outcomes – Review of the Liquor
Act 1992 and released in late October 2008.
Safe Youth Parties Taskforce
The Queensland Government established the Safe
Youth Parties Taskforce in May 2005 following
community concern about disruptive youth parties.
The Taskforce tabled a report in Queensland
Parliament in 2006 titled Safe Celebration – A Report
into Out-of-Control Youth Parties in Queensland28
which discussed the key issue of underage alcohol
consumption, including the provision of alcohol by
parents to children.
The Taskforce agreed with the community’s call for
more to be done to inform parents of their responsibility
to ensure the health and safety of their children, and
the existing liquor laws29. The Taskforce also noted
that despite the various prohibitions concerning
young people and alcohol, underage young people
‘find it relatively easy to obtain alcohol’ with the vast
majority being provided by their parents to drink
under supervision or by older friends or siblings. A
comparatively smaller proportion is provided alcohol
by their parents to drink without supervision30.
The report recommended that the Queensland
Police Service reports any child protection concerns
associated with parental neglect of children who are
repeatedly underage drinking to the Department
of Child Safety, and that relevant
Queensland
Government
departments
develop
an
awareness strategy to inform
parents, young people and
party hosts of their rights and
responsibilities when hosting or
attending a youth party, including
responsibility to provide adequate
supervision of children in their
care and issues associated with
underage drinking31.
2006 Post-Schoolies
Ministerial Forum
Following reports of the Class of 2006 ‘being one of
the drunkest Schoolies crowds on record’, a forum
was held on the Gold Coast in December 2006.
Police were reported as saying that the levels of
intoxication were, in some cases, extreme32. Police
were also reported as saying that the practice of
parents supplying alcohol to their children to drink in
their units had become more common in recent years
and, as a result, more alcohol was being consumed
by schoolies. Some parents were even restocking
the fridges in their children’s units mid-week.
The forum was called by the then Fair Trading
Minister, the Hon M Keech MP. The Minister pointed
to some parents who had contributed to the problem
of a proportion of young people at the celebrations
being affected by alcohol by supplying full-strength
and strong, ready-mixed drinks to their children,
many of whom had limited experience with the
consumption of alcohol. The Minister also stated
that recommendations from the forum could be used
in the review of the Liquor Act 1992 (Qld)33.
Position in Queensland regarding
‘secondary supply’
Previously, supplying alcohol to underage teenagers
in a private setting was not an offence under the Liquor
Act 1992 (Qld). Instead, prohibitions concerning
minors were limited to regulating the presence of
minors at premises to which a licence or permit
under the Act related; prohibiting the sale of liquor to
minors; prohibiting, on premises where a licence or
permit related, the supply and consumption of liquor
to minors; prohibiting, on a street or place adjacent to
premises where a licence or permit
related, or in a public place, the
supply of liquor to minors; prohibiting
a minor being sent to premises to
which a licence or permit related
with a view to the minor being
supplied with liquor; and minors
falsely representing themselves to
be 18 years of age or older with the
intent of being supplied with liquor or
entering premises to which a licence
or permit related.
to the minor at a private place in a manner that is
inconsistent with the ‘responsible supervision’ of the
minor.
In terms of private places, a ‘responsible adult’
for a minor is a parent, step-parent or guardian of
the minor, or an adult who has parental rights and
responsibilities for the minor35. Accordingly, any other
adult who supplies alcohol to a minor at a private
place who is not a parent, step-parent or an adult
guardian with parental rights and responsibilities for
the minor, will commit an offence, even if the supply
might otherwise be considered ‘responsible’.
Under the new legislation, relevant factors in
considering whether the supply of liquor to a minor is
consistent with ‘responsible supervision’ include:
•• whether the adult is unduly intoxicated
•• whether the minor is unduly
intoxicated
••the age of the minor
••whether the minor is consuming the
liquor supplied with food
••whether the adult is responsibly
supervising the minor’s consumption
••the quantity of liquor supplied and
the period over which it is supplied
The review of the Act addressed
the ‘secondary supply’ issue, and
amendments have been made to
both the Liquor Act 1992 (Qld) and the Police Powers
and Responsibilities Act 2000 (Qld). In addition, a
‘strong marketing campaign’ would take place to
send a clear message to adults about the risks of
irresponsibly supplying alcohol to minors34.
Premier Anna Bligh MP has been
quoted as saying ‘It’s part of the
Government’s
determined
effort
to crack down on binge drinking,
particularly among younger Queenslanders. …
[When] mum or dad buys a ute full of beer for their
teenager they obviously need clearer guidelines on
what is acceptable … In a time of growing concern
about the culture of teenage binge drinking, the law
needs to be clear and unequivocal’36.
New offences for irresponsibly
supplying alcohol to minors at private
places
New powers for police officers to
seize and forfeit liquor from minors
at private places
A new section (s156A) was inserted into the Liquor
Act 1992 (Qld) directed at making it an offence, in
certain circumstances, for an adult to supply alcohol
to a minor at a private place. An offence occurs if
an adult, other than a ‘responsible adult’ for a minor,
supplies liquor to the minor at a private place, or if
a responsible adult for a minor supplies alcohol
Two new provisions (sections 53A and 53B) inserted
into the Police Powers and Responsibilities Act
2000 (Qld), provide police officers with power, in
certain circumstances, to seize and forfeit liquor from
minors at private places. The provisions operate in
conjunction with the Liquor Act 1992 (Qld).
The new powers will be available if a police officer
is lawfully at a place, other than a place to which a
licence or permit under the Liquor Act 1992 (Qld)
relates, finds that a minor at the place has possession
or control of liquor (whether in opened or unopened
containers), and reasonably suspects that the minor
is not being responsibly supervised by a responsible
adult for the minor.
If that criteria is satisfied, the police officer may seize
the liquor, including any container, and dispose of it in
the way the officer considers reasonably necessary.
The police officer may continue to stay at the place
and re-enter the place for the time reasonably
necessary to remove the seized thing, even though
to do so would otherwise be trespass. The seized
items will be taken to be forfeited to the State.
The new powers also provide that if the police officer
is exercising their power outside a vehicle that is not
being used as a dwelling, the police officer’s powers
will include the power to enter the
vehicle to exercise a power under
the section within the vehicle.
‘Secondary supply’
in other Australian
jurisdictions
New South Wales is the only
other
Australian
jurisdiction
with legislation prohibiting the
supply of alcohol to minors
at private premises in certain
circumstances.
Under the Liquor Act 2007 (NSW), a person must not
supply liquor to a minor on any premises other than
licensed premises unless the person is a parent or
guardian of the minor. A maximum penalty of 100
penalty units ($11,000)37 or 12 months imprisonment
(or both) applies.
A key difference between the New South Wales
provisions and Queensland’s is that in New South
Wales there is no requirement for the supply of alcohol
to a minor (whether by or with the authority of the
minor’s parent or guardian) to occur in a responsible
manner. It has been stated, in December 2007,
that there had only been one prosecution under the
New South Wales provision since its introduction in
199638.
The Victorian Government stated recently that it is
re-examining the issue of ‘secondary supply’. In May
2008, there were reports that parents in Victoria could
be banned from providing alcohol to their children’s
friends within 12 months39. Victorian Police deputy
commissioner Kieran Walshe reportedly said:
It’s up to individual parents to make decisions about
whether their children are served, or are allowed to
take, alcohol and it shouldn’t be done for them by
somebody else.40
Instead, parents would be able to notify other parents
conducting a party that their child was permitted to
drink in moderation. Parents would also still be
able to serve alcohol to their children in their own
home41.
On 10 March 2008, the Federal Government
announced a new strategy to address binge drinking
by young Australians. The three parts to the program
include:
•• $14.4 million to invest in
community-level initiatives to
confront the culture of binge
drinking, particularly in sporting
organisations
•• $19.1 million to intervene
earlier to assist young people
and ensure they assume
personal responsibility for their
binge drinking
••
$20 million to fund
advertising that confronts young people
with the costs and consequences of binge
drinking42
The Ministerial Council on Drug Strategy has been
charged with developing a framework for nationally
consistent legislation governing alcohol supply to
minors. The Federal Government will also consider
ways to support parents in developing positive
attitudes towards alcohol in their children, providing
them with clear help and guidance43.
Notes
Notes
1 Liquor and Other Acts Amendment Bill 2007 (Qld), Explanatory
Notes, p2.
2 Giles, D., ‘$6,000 fine for booze parents’, Sunday Mail, 20 April
2008, p3, and Stolz, G., ‘Alert for Straddie invasion – Bingedrinking brats too much for islanders who want pre-Schoolies
parties stopped’, Courier Mail, 15 September 2008, p10.
3 See ‘Message in a bottle’, Gold Coast Bulletin, 14 December
2006, p1; Bartsch, P., ‘Night of madness – Parents blamed for
drunkest Schoolies crowd on record’, Sunday Mail, 26 November
2006, p15; Campbell, S., ‘Driven to danger. Police outrage:
parents buy the alcohol and taxi teenagers to end-of-year binge’,
Cairns Post, 21 November 2006, p1.
4 Hon A Fraser MP, Treasurer. ‘Historic new liquor laws pass
through Parliament’, Ministerial Media Statement, 10 September
2008; Wardill, S., ‘Bar’s open at home – Law cracks down in time
for Schoolies, but parents get rights’, Courier Mail, 28 August
2008, p9.
5 Healy, S., ‘Survey to guage Schoolies concerns’, Sunday Mail,
24 August 2008, p2; Vogler, S., ‘Binge fears ignored – Third of
parents give teens booze’, Sunday Mail, 14 September 2008, p12.
See also ‘Parents must stop kidding themselves’, Gold Coast
Bulletin, 15 September 2008.
6 Gastaldon, R., ‘Our Binge Drinking Culture’, Queensland
Parliamentary Library Research Brief No 2007/11, April 2007.
7 King, E., Taylor, J., and Carroll, T., Alcohol Consumption
Patterns Among Australian 15-17 Year Olds from 2000-2004,
Research Report, March 2005, http://www.alcohol.gov.au/internet/
alcohol/publishing.nsf/Content/resource-consumption-15-17year-olds/$FILE/nac_youth.pdf.
alcohol/publishing.nsf/Content/resource-consumption-15-17year-olds/$FILE/nac_youth.pdf, pp 73-75.
alcohol/publishing.nsf/Content/resource-consumption-15-17year-olds/$FILE/nac_youth.pdf, pp 64-65.
alcohol/publishing.nsf/Content/resource-consumption-15-17year-olds/$FILE/nac_youth.pdf, pp 67.
13 White, V., Hayman J., Australian Secondary School Students’
Use of Alcohol in 2005, June 2006, http://www.health.gov.au/
internet/drugstrategy/publishing.nsf/Content/85D7B21B3E3A993E
CA2572250007755F/$File/mono58.pdf.
14 Allen, E., ‘Binge drinking teenage curse’, Courier Mail, 18
March 2006, p58.
Parliamentary Library Research Brief No 2007/11, April 2007, pp
29-30.
Parliamentary Library Research Brief No 2007/11, April 2007, pp
29-30.
17 National Health and Medical Research Council, ‘Australian
Alcohol Guidelines: Health Risks and Benefits’, October 2001,
p15, http://www.nhmrc.gov.au.
18 Australian Drug Foundation, Drug Info Clearinghouse, ‘What is
‘secondary supply’?’ Fact Sheet, June 2008, http://www.druginfo.
adf.org.au.
19 ‘State already cool on teen alcohol fines’, Age, 25 March 2008.
20 Fynes-Clinton, J., ‘Drunk with hysteria’, Courier Mail, 27
September 2007, p35.
21 Fynes-Clinton, J., ‘Drunk with hysteria’, Courier Mail, 27
September 2007, p35.
22 ‘The booze beast’, Age, 10 June 2007, p1.
23 Creswell, A., ‘Parents warned on drinks for teens’, Australian,
4 January 2007, p3.
24 Bantick, C., ‘Binge war begins on homefront’, Courier Mail, 14
April 2008, p16.
25 See http://www.liquor.qld.gov.au.
26 Queensland Government. Treasury, ‘A Report on Liquor
Reform in Queensland’, December 2007, http://www.olgr.qld.gov.
au/.
Reform in Queensland’, December 2007, pp 7-8.
28 Safe Parties Youth Taskforce. ‘Safe Celebration – A Report into
Out-of-Control Youth Parties in Queensland’, March 2006, http://
www.police/gov.au/.
Out-of-Control Youth Parties in Queensland’, March 2006, p23.
30 Safe Parties Youth Taskforce. ‘Safe Celebration – A Report
into Out-of-Control Youth Parties in Queensland’, March 2006, pp
32-34.
Out-of-Control Youth Parties in Queensland’, March 2006, p8 and
p11.
32 Bartsch, P., ‘Night of madness – Parents blamed for drunkest
Schoolies crowd on record’, Sunday Mail, 26 November 2006,
p15.
33 Ellem, R., ‘Crackdown dawns: Loopholes to close under liquor
review’, Gold Coast Bulletin, 27 November 2006, p1.
34 Hon A Fraser MP, Treasurer. ‘Historic new liquor laws pass
through Parliament’, Ministerial Media Statement, 10 September
2008. The Act was assented to on 19 September 2008.
35 Liquor Act 1992 (Qld), s5.
36 Wardill, S., ‘It’s her round: Bligh recycles booze plan’, Courier
Mail, 21 April 2008, p3.
37 One penalty unit in New South Wales is $110 (Crimes
(Sentencing Procedure) Act 1999 (NSW), s17).
Reform in Queensland’, p7.
39 ‘Police back booze ban for children’, Age, 12 May 2008.
42 Hon K Rudd MP, Prime Minister. ‘National binge drinking
strategy’, Media Release, 10 March 2008.
43 Hon N Roxon MP, Minister for Health and Ageing. ‘Rudd
Government pushes further on binge drinking through COAG’,
Media Release, 23 March 2008.
new  resources  
DVD Movies
Despite its title, Beat the Rap, is not a resource about escaping punishment. This interactive DVD explores issues of law, freedom, violence, alcohol, road rules, teenage
romance and racism in Australia’s multicultural society. Developed by the Refugee and
Immigration Legal Service (RAILS), in collaboration with young people from south east
Queensland, Beat the Rap is an innovative resource that can be used by various groups
to address and understand legal rights and responsibilities, as well as cultural values and
conflicts. Unique in its approach, the DVD integrates original music scores with a short
drama highlighting a number of legal and cultural issues. A slide show explores the themes
of the drama and poses questions about the issued raised. There are also links to the
RAILS website where greater cultural awareness in the community is promoted.
Perspectives on
Muslim Life
Seminar DVDs
The TC Beirne School of Law’s Centre for Public, International and Comparative Law
hosted a public forum discussing the areas of Queensland law posing difficulties for
Muslims living in Qld. A panel of local and interstate lawyers, together with Muslim
community leaders, shared their perspectives and discussed ways Muslims and non-Muslims could harmonise both sets of laws. The Perspectives on Muslim Life Legal Issues
forum focussed on family law, religious practice and education, inheritance, finance and
commerce, and adjustments for refugee and migrants. The seminar highlighted that despite an understanding of the Australian legal system, and compliance to the law, there
were some areas of Australian law that presented additional challenges for Muslims.
Books
Justice
Behind Bars
If you’ve ever wondered what legal rights exist within Queensland’s legal system, Kobie Mulligan’s book Justice Behind Bars is an interesting approach to understanding the
Queensland Prison System. Mulligan states that whilst going to prison means a loss of
certain privileges, it should not mean a loss of rights. Justice Behind Bars attempts to
break down community stigmas related to those who serve time on the ‘inside’, and replace them with a human element. Mulligan has gone to great lengths to introduce and
explain the legislation, the prisons and life on the inside, opportunities for prisons, and
what it can be like for prisoners returning to the community. It is an interesting read.
The Queensland Law Society’s Schools and Community Education Service has copies of these
new additions available to borrow from their Resource Library. To find out how you can borrow
these resources, or to find out what other resources are available, please visit:
http://sces.qls.com.au/resources/
Parental Smacking
The Issues and the Law
by Nicolee Dixon
Nicolee Dixon is the Senior Research
Officer at the Queensland Parliamentary
Library. Nicolee has a BA and LLB (Hons)
from the Australian National University and
an LLM from the Queensland University of
Technology.
I
n most jurisdictions, including in
Queensland, the law enables parents to
raise a defence of ‘reasonable discipline’ or
other equivalents if charged with assaulting
their children. In Queensland, section 280 of
the Criminal Code is the relevant legislative
provision, allowing parents to use such force
as is ‘reasonable under the circumstances’
to correct or discipline their child. Recently,
considerable media attention has been given
to parents’ ‘right’ to smack a child, particularly
in light of legislation passed in New Zealand
in 2007 prohibiting parents from physically
punishing their children.
Numerous organisations at national and
international levels, including United Nations and
human rights bodies, seek to end the physical
punishment of children, including in the home, in
all countries. Both sides of the debate regarding
whether parents should be allowed to smack their
children tend to hold strong beliefs and can point
to various studies and research tending to support
their respective arguments.
Around 23 countries, mostly European, have
prohibited or are in the process of prohibiting,
corporal punishment completely. Most Australian
jurisdictions have banned physical punishment in
places outside the home, including in government
schools, correctional services institutions, and in
alternative child care and foster parent settings1.
In Queensland, a strong advocate for banning the
physical punishment of children, but still allowing
parents to engage in the occasional light smack,
is former State Attorney-General and Minister for
Justice and the Arts, the Hon Dean Wells MP. Mr
Wells observed that the Minister for Police had
made available to him indicative statistics for 20052006 showing there were 699 separate charges of
assault laid against parents in respect of assaults
against their own children. He noted that 388 of
the charges involved serious assaults of some
kind and 14 were grievous assault charges2.
According to those who wish to ban smacking,
even a smack is a point on the continuum of the
physical abuse of a child3. With the Australian
Institute of Health and Welfare finding that the
number of substantiations of incidents of child
abuse and neglect across the nation rose by 45
percent between 2002-2003 and 2006-20074,
no parent wishes to be seen as abusing his or
her child. Those who consider smacking to be a
legitimate form of discipline point to the fact that
some of the research about its impact on children
has tended to lump the light occasional smack
together with actions that amount to physical
abuse of a child – violence which would horrify
most parents5. There are others who nevertheless
point out that, while the laws retain ambiguities
in terms of phrases such as ‘reasonable force’,
there will be some parents who will think that slaps
leaving marks and truly hurting their children are
‘reasonable’6.
A facet of any debate about physical punishment
of children is the growing unease in the community
about whether today’s children are lacking in
discipline and are becoming increasingly scathing
of parental authority7. It may be that there are
parents who provide no guidance of discipline
of any sort to children, as illustrated by recent
incidents of young teenagers roaming the streets
and engaging in violence8. The challenge for
most parents is that they do not want to be seen
as bringing up unruly children but neither do they
wish to be seen as abusing them by administering
a smack.
Origins of laws regarding ‘reasonable punishment’ of
children
In terms of the legality of smacking a child, the
common law has long allowed a defence of
‘reasonable punishment’ to a charge of assault. It
appears that this defence had its origins in judicial
remarks by Chief Justice Cockburn in England
who stated that by ‘the law of England, a parent…
may for the purpose of correcting what is evil in
the child, inflict moderate and reasonable corporal
punishment, always, however, with this condition,
that it is moderate and reasonable’9. What is
‘moderate and reasonable’ is for the courts to
determine according to the circumstances of the
case. Views about this have changed over time
as attitudes of society have altered10.
Former Chief Justice of the Family Court of
Australia, the Hon Alastair Nicholson, recently
said that the ‘reasonable chastisement’ defence
has its roots in common law and has remained
unchanged in almost all legislation. However,
there has been enormous social change in so
many areas since this law was first introduced,
particularly regarding the care of children11.
A leading case on the common law position in
Australia is the 1955 Victorian case of R v Terry12.
Justice Sholl pointed out that there are strict limits
to the right of a parent to inflict reasonable and
moderate corporal punishment on his or her child
for the purpose of correcting the child in wrong
behaviour. Such limits are: the punishment must
be moderate and reasonable, it must have a proper
relation to the age, physique and mentality of the
child, and it must be carried out with a reasonable
means or instrument13.
The law about smacking children in Queensland
Under section 245 of the Queensland Criminal
Code (the Code):
A person who strikes, touches… the person of
another, … without the other person’s consent,
or … attempts or threatens to apply force of
any kind to the person of another … under
such circumstances that the person making the
attempt or threat has actually or apparently a
present ability to effect the person’s purpose, is
said to assault that other person.
There are however, a number of defences to a
charge of assault. One defence relates to the use
of reasonable force towards a child. Section 280
of the Code provides:
It is lawful for a parent or a person in the place of
a parent, or for a schoolmaster or master, to use,
by way of correction, discipline, management
or control towards a child or pupil under the
person’s care such force as is reasonable under
the circumstances14.
Once a parent has raised the defence to a charge
of assault that the force administered to the child
was by way of correction, discipline, management
or control, and that it was reasonable under the
circumstances, the prosecution has to prove that
the force was unreasonable. There is no indication
as to what is considered ‘reasonable under the
circumstances’ in section 280, but some guidance
can be obtained from the common law. A caveat
on consideration of the cases is that many of
them are from earlier times and, possibly from a
different generation’s viewpoint about discipline
of children. More recent cases seem to indicate
less tolerance of heavier forms of force against a
child15.
In R v H16, the respondent mother was convicted
of assault occasioning bodily harm on her nine
year old son while she was armed with a tree
branch. The boy received bruises to his body.
The boy had been described during the court
proceedings as difficult to manage, and as having
exhibited some violence previously towards his
mother. The events preceding the attack with the
branch were that the boy and two other children
had vandalised cars, causing distress in a small
community in which the family lived. The boy’s
father (estranged from the mother) wrote a victim
impact statement that was rejected by the trial
judge after reading it. The mother was placed on
a good behaviour bond. The Attorney-General
appealed that the penalty was inadequate.
The Court of Appeal dismissed the AttorneyGeneral’s appeal, with Chief Justice de Jersey
stating that the court would not interfere with the
good behaviour bond penalty and impose an
order and a counselling requirement instead. His
Honour said of his findings:
None of this is intended to send any signal to
the community that this sort of unrestrained
lack of discipline on the part of a parent is
acceptable. But in circumstances where there
is no evidentiary basis for a conclusion that the
[mother] needs ongoing counselling, or that
there is any risk of recurrence of this sort of
misbehaviour on her part,… the good behaviour
bond… cannot be condemned as so far out of
the range as to warrant disturbance on this
appeal17.
In terms of the message that the community should
draw from the case, Chief Justice de Jersey said
that ‘this sort of ill-disciplined response by a parent
to a child is intolerable’18.
Arguments For and Against Smacking Children
A number of arguments have been raised for
and against parents being allowed to smack a
child as a form of administering discipline. Most
people would agree that discipline is an important
foundation for the development of a child’s selfdirection and competence. At the end of the day,
there appears to be a consensus that discipline
and child rearing should ideally be carried out by:
Those who have warm, nurturing relationships
with [children]. Discipline should be directed
toward a child’s welfare and should be
developmentally appropriate; it should not be
an expression of a caretaker’s anger. Some
caregivers use spanking as a method of discipline,
and it is from this point that philosophies diverge
greatly and the controversy regarding possible
benefits or adverse consequences of corporal
punishment persists19.
The various standpoints can be prejudiced by
factors like childhood experiences, religion,
family traditions, regional attitudes, and education
levels20. Another complicating factor has been the
strong position taken by groups promoting their
own personal and political agendas for or against
physical punishment.
As for whether physical punishment has harmful
effects on children, the academic and community
debate is considerable.
Those opposing
physical punishment point to the possibility of it
producing individual and social negative effects,
such as aggressive or anti-social behaviours, or
criminal involvement. Those supporting physical
punishment claim that such findings are based on
uncertain evidence and are refined by common
experience21.
Arguments Against
Advocates for banning the use of physical
punishment by parents argue that children who
are hit by their parents may become aggressive
and be more likely to hit other children and, later
in life, other family members; they may suffer from
mental health problems, such as low self-esteem
and depression; they may become anti-social and
engage in delinquent behaviour; and they may not
perform well at school22.
Professor of Sociology and leading researcher
into the physical punishment of children, Dr
Murray Straus, concluded that children being
physically punished are ‘being subjected to a
socialisation experience which increases the risk
of them developing major social and psychological
problems, such as physical violence and
depression’23.
A number of Straus’ studies have found numerous
negative effects, such as aggressive and antisocial behaviour in children, associated with
physical punishment. In a 1996 study, Straus
noted suggestions of a connection between
physical punishment and violence such as later
abuse of one’s children and one’s spouse24.
In 2007, the UNICEF Innocenti Research
Centre Report Card 725 presented findings of an
assessment on the well-being of children and
young people in 21 nations of the industrialised
world. It attempted to measure and compare
child well-being under six headings (material wellbeing, health and safety, education, relationships,
behaviours and risks, and subjective well-being).
It was acknowledged in the report that the level of
maltreatment, abuse and neglect of children was
unknown; however, around 3,500 children under
the age of 15 died each year from maltreatment,
abuse and neglect26. The focus of this report was
more on the serious types of ‘maltreatment’, but
in an earlier 2003 Innocenti Report Card 5, some
attention was given to the hitting of children by
parents27.
A number of findings in the Innocenti Report Card
5 indicated a link between physical punishment
of children and outcomes such as aggressive
behaviour, tendency to bully other children, and
mental problems later in life, but there are noted
difficulties in establishing unambiguous cause
and effect linkages between any one aspect of
child rearing and any given outcome in later life.
While the report opposes
physical punishment of
children, particularly from a
human rights perspective, it
comments that the approach
taken by some researchers
that all hitting is abuse ‘has
sometimes left research
findings looking ridiculous.
Links between regular and
severe abuse as a child
and, say, depression or
aggression in later life does
not prove that all physical
punishment is likely to
produce the same result’28.
In 2003, the Tasmanian Law
Reform Institute presented a
number of points supporting
the banning of physical
punishment of children in its
Physical Punishment of Children29 report. The
arguments during the debate about reforming the
law on smacking in Tasmania included:
•• criminal laws allowing the physical
punishment of children breach Australia’s
obligations under international human rights
treaties and conventions
•• physical punishment is inconsistent with
modern attitudes to children that regard
children’s best interests as the paramount
concern
•• many parents, and professionals, have
stated that discipline – which most agree
children do need – can be effectively
administered without physical punishment30
The Institute concluded that ‘there is sufficient
evidence to find there are probably a number of
negative effects produced by the use of physical
punishment’ although that evidence ‘is not yet
totally conclusive – such is the nature of much
social and scientific evidence’. However, the
Institute argued, when dealing with children’s
welfare, a cautious approach is needed and the
evidence should not be ignored.
In April 2007, the Hon Alastair Nicholson, former
Chief Justice of the Family Court of Australia and
Patron of Children’s Rights International gave
a speech titled ‘Choose to Hug Not Hit’ to mark
international No Smacking Day31. His Honour’s
comments in support of a ban on smacking
included the following:
•• while most of us are rightly concerned
about child abuse it troubles me that we are
unable to characterise the hitting of children
as falling squarely into this category. I
suspect that the use of the word ‘smacking’
has something to do with it…
•• that the defence of reasonable chastisement
operates to protect parents from…
conviction for much more serious assaults
on children and, in effect, operates as a
charter for child abuse…
•• the removal of the defence to a charge of
assault would simply place children in the
same position as the rest of the community
in relation to assault laws
The main proponent of the most recent campaign
to prohibit physical punishment of children in
Queensland
is
former
Attorney-General
and
Minister for Justice and the
Arts, the Hon Dean Wells
MP. In a recent article, Mr
Wells stated:
If your partner puts a brick
through the windscreen
of your car and to teach
them a lesson you calmly
take an implement and
give them a good hiding,
leaving bruises… you will
be charged with assault
occasioning bodily harm
and sentenced to a
maximum of seven years
imprisonment…
If, on the other hand, your
child does exactly the same
thing and you respond in
exactly the same way, you will not be charged
because section 280 provides you with complete
protection.32
Mr Wells MP wants section 280 of the Criminal
Code to be amended so that it does not operate
as a defence to any type of assault other than
common assault and says that the effect would be
to allow parents to smack their children, but not
to injure them, nor to inflict upon them an assault
occasioning bodily harm or grievous bodily harm.
Arguments For
A telephone poll in 2006 carried out by the
Australian Childhood Foundation revealed that
almost seven in 10 Australians support smacking33,
and so it appears the debate is set to continue.
One of the suggested difficulties with the smacking
debate is that a number of opponents of smacking
highlight terrible cases of physical punishment,
much of which amounts to child abuse, as
indicative of why smacking should be banned34.
Psychology professor, Dr Robert Larzelere, who
has researched child correction for nearly 30
years, commented that much of the research has
included the use of harsh or abusive punishments
and that while ‘all professionals oppose abusive
physical punishment, non-abusive physical
punishment is more controversial’35.
Other researchers point to the constraints and
limitations of the methodology and design of many
studies about the physical punishment of children.
Larzelere highlighted how these limitations can
influence conclusions. For instance, his 1996
analysis of 35 empirical studies investigating child
outcomes associated with physical punishment
found that the stronger studies – clinical treatment
studies and sequential studies – revealed mainly
beneficial outcomes but most of the retrospective
studies found predominantly detrimental or neutral
outcomes. Some researchers suggest it is wrong
to discuss the studies in this area in terms of cause
and effect because of the identified shortcomings
of many of them.
Dr Larzelere found that beneficial or neutral
outcomes of physical punishment were
characterised by:
•• used infrequently (less than weekly)
•• used in a non-abusive severity by parents
who were not violent
•• used privately
•• used without a potentially damaging
implement
•• used on children younger than teenagers
(particularly children aged 2 to 6)
•• used with reasoning
•• used preferably with an intermediate level of
distress
•• used mainly as a back up for less aversive
disciplinary tactics
Parents who got better outcomes associated with
smacking were:
[p]ositively involved with their child, had
child-oriented motivations for using spanking
rather than parent-oriented motivations, did
not increase their children’s fear of parental
discipline, followed through with their warnings,
and cooperated with each other in discipline
responsibilities. They did not use verbal putdowns and they changed their main discipline
method to grounding when the children got
older.36
Of all the studies Larzelere found that, when
compared with the outcomes of alternative
disciplinary responses (such as physical restraint,
reasoning alone, punishment without reasoning,
ignoring etc) the only alternative that had more
beneficial outcomes than physical punishment
was grounding (for older children)37. Dr Larzelere
also considered a ‘conditional sequence model’
and suggested that optimal responses begin with
less severe tactics (e.g., reasoning) proceeding
to firmer tactics when the initial method fails
to achieve compliance or an acceptable
compromise. The firmer tactics can be nonphysical punishment initially, such as a time-out,
backed up with non-abusive physical punishment,
like smacking. He found that a combination of
reasoning and punishment was more effective in
delaying recurrences of misbehaviour than either
one of these methods alone, particularly with preschool aged children.38
American authors of A Meta-Analysis of The
Published Research on the Affective, Cognitive,
and Behavioural Effects of Corporal Punishment,
Claudio Violato and Elizabeth Oddone-Paolucci
analysed studies on the effects of physical
punishment on affective outcomes (e.g., low selfesteem, depression, anxiety); cognitive outcomes
(e.g., academic performance or impairment,
attitudes towards violence); and behavioural
outcomes (e.g., aggression, child and spousal
abuse, anti-social behaviours). In considering
the various studies, Violato and Paolucci made
the following points:
•• people who have experienced physical
punishment are at a small, and perhaps
negligible, increased risk for developing
emotional and behavioural problems
•• the findings suggest minimal negative
effects of smacking on functioning and
development, despite the great prevalence
of smacking
•• smacking does not appear to pose a serious
emotional, cognitive or behavioural health
problem for a significant number of people
exposed to it
The need for parents to have available to them the
necessary tools to maintain authority over defiant
children has been echoed by child psychologists.
US paediatrician, Dr Den Trumbull, noted the
complexities of parent and child relationships
where the outcome of a parent’s effort is influenced
by many factors unique to the child, the parent, the
environment and the context. He argues that a
‘ban on all disciplinary physical punishment does
not respect this complexity and oversimplifies the
debate [on] spanking’39.
Australian FamilyAssociation (AFA) spokesperson,
Angela Conway, considered that to ‘make
discipline work, parents need to be the boss’. She
considered that a ban on smacking would just
create anger and defensiveness among parents
when what is needed is ‘parental education and
policies that give tried and overstretched parents
the time and a resource to understand what
constructive discipline looks like’40.
Laws in Other Australian Jurisdictions
How Australian parents punish their children is
a matter for state rather than federal legislation.
However, in early 2007 the then Senator of the
Australian Democrats, Andrew Bartlett, called for
a public inquiry into the physical punishment of
children, which included smacking. At the time,
the Government provide the Australian Childhood
Foundation (ACF) with $2.5 million towards the
Every Child is Important Program, but stopped
short of responding to Senator Bartlett’s call41.
Through the program, parents are provided with
education and resources to strengthen parentchild relationships which helps raise happy and
confident children42. The program has given
rise to a number of initiatives including television
advertisements, a parental information booklet, a
national phone number, and parenting seminars.
In some jurisdictions, the common law underpins
the right of parents to use reasonable force to
punish their children. This is the case in the
Australian Capital Territory, South Australia
and Victoria.
Legislation regarding physical
punishment of children exists in Queensland,
New South Wales, Tasmania, Western Australia43
and the Northern Territory44.
New South Wales
Under section 61AA(1) of the Crimes Act 1900
(NSW), in criminal proceedings brought against a
person regarding the application of physical force
to a child, it is a defence if the force was applied
for the purpose of the punishment of the child, but
only if:
•• the physical force was applied by the parent
of the child or by a person acting for a
parent of the child45
•• the application of that physical force was
reasonable having regard to the age, health,
maturity or other characteristics of the child,
the nature of the alleged misbehaviour or
other circumstances.
However, section 61AA(2) then provides that the
application of the physical force, unless it could
reasonably be considered to be trivial or negligible
in all the circumstances, is not reasonable if the
force is applied to any part of the head or neck of
the child or to any other part of the body… in such
a way as to be likely to cause harm to the child
that lasts for more than a short period.
If the use of force does not fall into any of the two
categories in section 61AA(2), the court decides
whether the force is reasonable, having regard to
all the relevant circumstances. Prior to section
61AA taking effect, the issue of lawful correction
by parents was a matter for the common law.
This provision essentially codifies and clarifies the
defence of lawful correction and imposes a limit
on the use of excessive force.
Tasmania
Section 50 of the Criminal Code Act 1924 (Tas)
provides:
It is lawful for a parent or a person in the place
of a parent to use, by way
of correction, any force
towards a child in his or her
care that is reasonable in
the circumstances.
mug of gunpowder while igniting it, and striking
the other children with a whip. There were also
alleged instances involving a cattle prod, an
‘Agfest’ stick, and kicking one of the children, as
well as an allegation that the father had tied one
child in a shed with a dog chain (apparently for
bed wetting). At trial, the judge said that there
had been sustained violence in excess of lawful
correction, over an extended period. The trial
judge sentenced the father to 12 months in gaol
on being found guilty of ill treatment of one of the
children, but both the father and his wife were
acquitted on the counts of assault (the jury being
unable to reach a verdict).
In October 2003, the Tasmanian Law Reform
Institute released the report Physical Punishment
of Children in response to a proposal by the
Tasmanian Commissioner for Children that
physical punishment be a topic for the Institute’s
consideration. Three alternative recommendations
were made by the majority of the Institute’s
Board:
1. that the defence of reasonable correction be
abolished in s50 of the Code, or
The section 50 defence was
used in the 1992 case of
Bresnehan v R46 in which
a father was charged with
ill treatment and assault of
his four children. His wife,
who was the children’s
stepmother,
was
also
charged.
The incidents
pertaining to the charges
included
striking
his
daughter with a whip and
forcing her to eat cigar butts
after smoking them (she
had been caught smoking),
holding a child’s face over a
2. if the Parliament does not implement the
first recommendation, a staged approach
is recommended. The first stage involves
a clarification of s50 and the second (two
years later) would see the repeal of s50, or
3. if the first or second recommendations
are not accepted, s50 should be clarified
and, in two years, the appropriateness of
the availability of the defence should be
reviewed.
Alongside banning physical punishment, it was
recommended that there be a time delay of 12
months on the ban coming into force and an
education campaign to inform the community of the
changes and to provide information and resources
about alternative discipline measures47.
The Institute acknowledged that parents feared
they would become ‘criminals’ by giving their
children the lightest of smacks and that some
may be deterred from seeking help because they
might be seen as bad parents. However, the
Institute said that just as trivial assaults between
adults are not prosecuted, it would be expected
that this approach would be taken in relation to
trivial smacks. The time delay before any ban
came into effect would allow parents to adjust to
using alternative discipline measures and that it
would be important for education campaigns to
make it clear parents would not be judged for
seeking help. There would be no change in the
law relating to child abuse, so that ‘a smack would
not be evidence of abuse or justify attention from’
child safety officers48.
South Australia
South Australia does not currently have any
statutory defence for parents regarding use of
‘reasonable force’ of ‘reasonable discipline’ and it
is the common law that operates in cases where
parents are charged with assault against their
children. However, a Private Member’s Bill went
before the SA Legislative Council to provide a
defence to assault under section 20 of the Criminal
Law Consolidation Act 1935 (SA).
The Criminal Law Consolidation (Reasonable
Chastisement of Children) Amendment Bill 2007
(SA), introduced by Family First MP, the Hon
Dennis Hood, into the Legislative Council in
May 2007, states that ‘conduct that lies within
limits of what would be generally accepted in
the community as reasonable chastisement or
correction of a child by a parent… or a person in
loco parentis… cannot amount to an assault…’.
He went on to say that the Government does not
have a right to tell parents how to discipline their
child provided parents do not go too far49.
Smacking Laws in Other Countries
A number of other governments throughout the
world have committed to prohibiting legislation.
The Global Initiative has found that, as of December
2007, 23 states have passed legislation to protect
children from all corporal punishment.
Sweden
As early as 1959, the Penal Code was amended
to withdraw parents’ exemption from prosecution
if they injured a child when chastising him or her,
and in 1969 was amended again to withdraw the
right of parents to use violence towards children.
Sweden became the first country in the world to
ban all corporal punishment of children, including
in the home, in 1979. The relevant part of the
Parenthood and Guardianship Code (forming part
of Sweden’s civil law) reads:
Children are entitled to care, security and a
good upbringing. Children are to be treated
with respect of their person and individuality and
may not be subjected to corporal punishment or
any other humiliating treatment.50
The ban was intended to be educational, rather
than punitive. The new law formed part of a large
parental education program which was undertaken
by the Ministry of Justice, a component of which
involved a letter-box drop of a pamphlet telling
households that the law now forbade all forms
of physical punishment of children, including
smacking. Non-violent parenting is also part of
the syllabus in Swedish education51. Parents
were also encouraged to seek help with difficulties
in managing their children and to learn about
alternatives to physical discipline52.
Evaluations and studies of the Swedish
experience and the effects of the anti-smacking
ban have been undertaken, finding that it cannot
be definitively stated that the prohibition has led
to the emergence of a new and less aggressive
generation, nor can it be said that it has produced
an ill-disciplined generation of bad mannered
youths53.
New Zealand
In May 2007, New Zealand became the first
English-speaking country to eliminate all forms
of corporal punishment of children by passing
legislation to effectively ban the corporal
punishment of children by parents.
Prior to the amendments, section 59 of the Crimes
Act 1961 recognised that parents had the right
to use ‘reasonable force’ in disciplining children.
It appears that impetus for the repeal of section
59 came from burgeoning public concern over
the significant levels of violence occurring from
within families and a wave of academic research
identifying the negative effects of physical
punishment of children54. Around the same
time, a report prepared by a UNICEF research
body found that New Zealand had a rate of child
maltreatment deaths that was four to six times
higher than the average for those countries found
to have an exceptionally low incidence of child
maltreatment deaths (i.e., Spain, Greece, Italy,
Ireland and Norway)55.
The new section 59 of the Crimes Act, which took
effect in June 2007, removed the right of parents
to use ‘reasonable force’ to discipline children
so that the laws on assault now apply to parents
using physical punishment on a child56.
There was a degree of public opposition to
changes to the law, particularly by those concerned
that good parents might be prosecuted57. It was
also observed that the public were given mixed
messages – on the one hand, there was to be
a legal ban on physical punishment, but on the
other hand nobody would be in trouble if they just
did it mildly58.
In November 2007, the media reported that a New
Zealand father had been convicted of assault
under the new laws, and was sentenced to nine
months supervision, including attending anger
management. He had smacked his eight year old
son on the bottom. It was reported that the court
was told the boy received a bruised shoulder
when his father apparently grabbed him roughly
before smacking his bottom three times with an
open hand. It appears the boy had misbehaved
at school. Opponents of the law are reported to
have commented that the conviction showed that
the law was a ‘parents’ worst nightmare’59.
On the other hand, in April 2008, it was reported
that a New Zealand man had had charges against
him dropped after he was accused of hitting his
five year old daughter with an open hand on the
back of her head and swinging a pair of jeans at
his six year old daughter which hit her in the side
of the head. He denied the claims and the police
were unable to offer any evidence to the court.
The father’s lawyer was reported as saying that
he did not condemn the police for trying to protect
children, but when the law was being discussed
in Parliament, the public were assured that minor
matters would not end up in court60.
More recently, there have been moves by
opponents of the anti-smacking law to seek a
referendum about whether to overturn the law.
After an unsuccessful attempt, Family First has
succeeded in having the Government hold a
referendum in 2009 by way of a postal ballot61.
Proposals for change in Queensland
Proposals to reform or remove the defence
provided in section 280 of the Criminal Code to
a charge of assault for the use by a parent of
‘reasonable force’ to correct their child have been
around for some time.
In March 2007, former state Attorney-General
and Minister for Justice and the Arts, Mr Wells
MP invited members of Parliament to observe the
moves in New Zealand to remove the reasonable
discipline defence and to consider if such reform
is needed in Queensland62. Mr Wells said that he
did not believe that the most vulnerable members
of society, should have the least protection of the
law. He noted that once a parent raises the defence
of use of reasonable force, the prosecution has to
prove the force was unreasonable.
Mr Wells MP sought to reassure those who
might ‘have reservations
about removing
the… defence…’
because it may criminalise
the vast bulk of the population and open the
floodgates to prosecuting a large proportion of
people who occasionally smack their children:
That is not how the legal system would work if
we were to abolish the … defence. [Removal of
the defence] just puts those children in the same
situation as adults who receive minor or trivial
assaults. … [T]here would not be the prosecution
of every parent who occasionally smacks their
child… for the same reason as we do not now
prosecute every push and shove… between
adults.63
The proposal by Mr Wells MP would remove
the ‘reasonable force’ defence for assaults on
children, other than a common assault. Parents
would be allowed to administer a non-injurious
smack, but not anything that amounts to bodily
harm or grievous bodily harm64.
On the other hand, Brisbane criminal defence
lawyer Michael Bosscher considers that section
280, as it currently stands, is appropriate. He
argued that it not only protects parents who ‘use
moderate and reasonable force… where warranted
and where appropriate… Never, would bruising
a child, injuring a child, (or) inflicting grievous
bodily harm be considered “reasonable force”’65.
Further, Toowoomba criminal defence lawyer, Tim
Meehan, states that while he does not condone
violence against children, he does not agree that
removing the ‘reasonable force’ protection in the
Criminal Code is the best way to deal with the
issue of abusive parents66. Meehan considers
that ‘reasonable force’ is a question to be decided
by the jury in any given case of parental assault
and that the jury reflects the changing attitudes of
society.
The debate over smacking resurfaced in early
August 2008 when it was reported that a mother
of four narrowly escaped a prison sentence for
hitting her children aged seven and nine with
a leather belt for failing to properly clean their
bedrooms. The woman was placed on probation
for two years after pleading guilty to two counts of
assault occasioning bodily harm.
The need for parental support and government
funded training and education campaigns about
alternatives to physical punishment have been
supported by many experts and researchers in
the child development field. Legislative forms to
ban smacking in both New Zealand and Sweden
were accompanied by government-backed, wellpublicised education campaign and assistance
for caregivers.
Those who have watched television programs
such as Supernanny or Nanny 911 would have
seen the use of the time out or ‘naughty step’
method. This involves the misbehaving child being
told to sit on a certain spot for the same number of
minutes as his or her age. A clear explanation for
the punishment is given before and after the child
has sat on the spot and the child is asked for an
apology67.
However, there are undoubtedly parents who
doubt the effectiveness of alternative disciplinary
methods in all situations: ‘try contending with a
four year old who is in the middle of a 100 decibel
tantrum in a supermarket aisle. There comes
a point where reason and logic just don’t cut
through. A mild whack on the backside does tend
to get attention when all else has failed’68.
Notes
1 Global Initiative to End All Corporal Punishment Website,
Introduction, www.endcorporalpunishment.org/pages/frame.
html (Global Initiative Website). The Global Initiative, launched
in April 2001, aims to eliminate corporal punishment of children
across the world in all contexts. It has the support of the United
Nations and a number of human rights organizations.
2 Hon D Wells MP, ‘”Reasonable” Assaults?’ Proctor, June 2008,
pp 25-26, p26. Mr Wells said that being indicative statistics, they
may appear in a different format when published in the Annual
Report.
3 As noted by ET Gershoff, ‘Corporal punishment by parents
and associated child behaviours and experiences: A Metaanalytic and theoretical review’, Psychological Bulletin, vol128,
2002, pp 529-579, p540, citing other research and studies.
4 Australian Institute of Health and Welfare, Child Protection –
Australia 2006-07, January 2008, p x.
5 See, for example, RE Larzelere & BR Kuhn, ‘Comparing Child
Outcomes of Physical Punishment and Alternative Disciplinary
Tactics: A Meta-analysis’, Clinical Child and Family Psychology
Review, vol8(1), 2005, pp 1-37.
6 See, for example, J Tucci, J Mitchell, C Goddard, Crossing
the Line: Making the case for changing Australian laws about
physical punishment of children, Report by the Australian
Childhood Foundation and the National Research Centre for the
Prevention of Abuse at Monash University, September 2006.
7 Editorial: ‘Family life in meltdown’, Fassifern Guardian, 13
August 2008, p4.
8 Tuck Thomspon & Greg Stolz, ‘Violent teen gangs taking over
the streets’, Courier Mail, 2 August 2008, p2.
9 United Kingdom, Department for Children, Schools and
Families, Review of Section 58 of the Children Act 2004,
Command Paper 7232, October 2007, p6, citing Cockburn CJ
www.dcsf.gov.uk/publications/section58review/pdfs/s58%20
Review%20Report.pdf.
10 UK Department for Children, Schools and Families, p6.
11 Hon A Nicholson AO RFD QC, Honorary Professional Fellow,
Department of Criminology, University of Melbourne, ‘Choose
to Hug Not Hit’, Australian Children’s Rights News, No43, May
2007, pp 16-31, p18, www.dci-au.org/acrn/ACRNMay2007.pdf.
12 [1955] VLR 114, cited in Cramer & Ors v R & Anor [1998]
WASCA 300.
13 [1955] VLR 114, 116, cited in Cramer & Ors v R & Anor [1998]
WASCA 300.
14 The Criminal Law Amendment Act 1997 (Qld) amended
s280 to include force used by way of discipline or management
in addition to correction. It also removed the ability to use
the defence in relation to use of reasonable force towards an
apprentice: s43.
15 J Millett, Queensland Parliamentary Internship Program,
Report for the Hon Dean Wells MP, Protecting Children: A review
of ‘reasonable chastisement’ and section 280 of Queensland’s
Criminal Code, completed 18 November 2007, tabled 13 March
2008 by Hon D Wells MP, p9.
16 [2001] QCA 174, Queensland Court of Appeal, 8 May 2001.
17 [2001] QCA 174, p6, per de Jersey CJ.
18 [2001] QCA 174, pp 6-7, per de Jersey CJ.
Notes
Notes
19 EO Paolucci & C Violato, p216, referring to other research.
20 EO Paolucci & C Violato, p216, citing IA Hyman, ‘Using
research to change public policy: reflections on 20 years of
effort to eliminate corporal punishment in schools’, Paediatrics,
1996.
21 As observed by the Tasmanian Law Reform Institute,
Physical Punishment of Children, Final Report No 4, October
2003, p32.
22 Tasmanian Law Reform Institute, p35, referring to a range
of studies, including E Gershoff; MA Straus ‘Discipline and
deviance: Physical Punishment of children and violence
and other crime in adulthood’, Social Problems vol38, 1991,
p133; and to a 1995 Discussion Paper by the Commonwealth
Department of Human Services and Health which cites a range
of studies.
23 J Tucci, et al., p11, citing MA Straus, ‘Corporal punishment
and primary prevention of physical abuse’, Child Abuse and
Neglect, vol24, 2000, pp 1109-1114, p1110.
24 EO Paolucci & C Violato, p203, citing MA Straus, ‘Corporal
punishment as a stressor among youth’, Journal of Marriage
and Family, vol58, 1996, pp 155-166.
25 UNICEF, ‘Child Poverty in Perspective: An overview of child
well-being in rich countries’, Innocenti Report Card 7, UNICEF
Innocenti Research Centre, 2007, Florence, www.unicef-irc.org.
publications/pdf/rc7_eng.pdf.
26 UNICEF, Innocenti Report Card 7, 2007, p16.
27 UNICEF, Innocenti Report Card 5, www.unicef-irc.or/
publications/pdf/repcard5e.pdf, pp 22ff.
28 UNICEF, Innocenti Report Card 5, p29.
29 See www.law.utas.edu.au/reform/documents/
PhysPunFinalReport.pdf
30 Tasmanian Law Reform Institute, p32, citing ‘Protecting
children is Everybody’s Business: Paediatricians Responding
to the Challenge of Child Abuse’, Royal Australasian College of
Physicians, 2nd ed, 2001, p23.
31 Hon A Nicholson, ‘Choose to Hug Not Hit’.
32 Hon D Wells MP, ‘”Reasonable” Assaults?’, p25.
33 J Tucci, et al, p22ff.
34 RE Larzelere & BR Kuhn, Executive Summary, p2.
35 RE Larzelere, ‘A Review of the Outcomes of Parental Use of
Non-Abusive or Customary Physical Punishment: The Short and
Long Term Consequences of Corporal Punishment’, Pediatrics,
98(4), 1996, pp 824-828. Cited hereafter as ‘Parental Use of Nonabusive or Customary Physical Punishment’.
36 RE Larzelere, ‘Parental Use of Non-Abusive or Customary
Physical Punishment’.
37 RE Larzelere, ‘Parental Use of Non-Abusive or Customary
Physical Punishment’.
38 RE Larzelere, ‘Combining love and limits in authoritative
parenting’.
39 Dr DA Trumbull, ‘Parents need techniques for behaviour
control’, Letter to the Editor, British Medical Journal, vol320, 3
June 2000, p1539.
40 Fay Burstin, quoting AFA spokesperson, Angela Conway.
41 ‘Politics of Smacking’, Sydney Morning Herald, 20 May 2007,
p1.
42 Commonwealth Department of Families, Housing Community
Services and Indigenous Affairs, Every Child is Important
Program, www.facsia.gov.au/internet.nsf/aboutfacs/programs/
sfsc-early_childhood_invest_to_grow.htm.
43 Section 257 of the Criminal Code (WA) provides: It is
lawful for a parent or person in the place of a parent, or for a
schoolmaster, to use, by way of correction, towards a child
or pupil under his care, such force as is reasonable under the
circumstances.
44 Section 27(p) of the Criminal Code (NT) provides: In the
circumstances following, the application of force is justified
provided it is not unnecessary force and it is not intended and is
not such as is likely to cause death or serious harm: … (p) in the
case of a parent or guardian of a child, or a person in the place
of such parent or guardian, to discipline, manage or control
such child.
45 These categories of persons are listed in s61AA(6).
46 (1992) 1 Tas R 234.
47 Tasmanian Law Reform Institute, pp 3-4.
48 Tasmanian Law Reform Institute, p41.
49 Hon DGE Hood MLC, Second Reading Speech, Criminal
Law Consolidation (Reasonable Chastisement of Children)
Amendment Bill 2007 (SA), SA Legislative Council Hansard, 30
May 2007, pp 197-198, p197.
50 See BarnOmbudsmannen (Children’s Ombudsman) – ‘The
Swedish Corporal Punishment Ban’, www.bo.se/adfinity.
aspx?pageid=90.
51 UNICEF, Innocenti Report Card 5, p24. See also Global
Initiative Website – Sweden.
52 JE Durrant, ‘A Generation Without Smacking’.
53 See UNICEF, Innocenti Report Card 5, pp 24-25.
54 See also B Wood et al, Chapter 1: Setting the Scene.
55 Innocenti Report Card 5, p2.
56 In addition, a provision in section 139A of the Education Act
1989 (NZ) recognizing the right to use force by way of correction
was repealed.
57 See B Wood et al, p29.
58 B Wood et al, p29.
59 ‘Father convicted for smacking son on bottom’, news.com.
au, 23 November 2007.
60 ‘Father’s smacking case dismissed’, referring to comments
by Mr Tony Boucher.
61 Claire Trevett, ‘Smack referendum next year, says Clark’,
nzherald.co.nz, 26 June 2008.
62 Hon DM Wells MP, ‘Address in Reply’, Queensland
Parliamentary Debates, 7 March 2007, pp 760-763.
63 Hon DM Wells MP, p762.
64 Hon DM Wells MP, p763.
65 Marissa Calligeros, ‘Law would punish good parents’,
brisbanetimes.com.au, 9 July 2008, referring to comments by Mr
Michael Bosscher.
66 T Meehan, ‘Child abuse or discipline, not for politicians to
decide’, Lawyers Weekly, No380, March 2008, pp 16-17, p16
67 Graham Readfearn, ‘It is not OK to smack’, Courier Mail, 7
May 2008, pp 41-43, p43.
68 Paul Syvret, ‘On a hiding to nothing’, Courier Mail, 10 April
2007.
web  weaving  
by Calista Bruschi
Calista Bruschi is the Community Relations
Officer and Schools and Community
Education Services Coordinator for the
Queensland Law Society, and is the Editor
of The Verdict magazine.
L
et’s talk about rights. To be more precise,
let’s talk about the Australian Human
Rights Commission, who has everything
anyone would ever want to know about human
rights. The website of this organisation,
which was formerly known as the Human
Rights and Equal Opportunity Commission,
provides a wealth of information adhering
to their catch cry: everyone, everywhere,
everyday.
The Australian Human Rights Commission was
established in 1986 to promote and protect human
rights in Australia. The Commission works with
individuals, the community, business and government
to make human rights a part of everyday life and
language.
The website is quite comprehensive and visually
pleasing.
From the home page it is clear that one of the major
responsibilities of the Australian Human Rights
Commission is to educate and raise awareness
within the public arena of human rights issues. There
are links to its Media Centre and Submissions pages
where the hard work of the Commission is detailed, but
what is most amazing is the links to social networking
websites such as MySpace, Facebook and YouTube,
which can only ensure that the message is being
spread in the most ‘connected’ way possible.
Human Rights EDUCATION is aimed at further
communicating with the public about how human
rights and responsibilities apply on a daily basis.
The information provided on the website is aimed
at teachers, students, the media, legal services
and business groups. The ‘teacher’ and ‘student’
pages are interactive, engaging and encouraging,
with unique activities on a number of contemporary
Human Rights issues. There are thorough education
resources and fact sheets, and the thing that is
particularly beneficial to teachers is the way in which
the resources have been developed with education
curriculum and their key learning areas in mind.
The LEGAL RESEARCH & RESOURCES pages of
the website focus on the submissions and advocacy
work being done by the Commission. The Australian
Human Rights Commission has a responsibility to
review existing and proposed legislation relating
to human rights. The ‘What’s New’ section lists
the relevant legislation and reports with links to
the documents for further reading, and it should be
noted that the information is often presented in its
actual, legal language which may not be conducive
for everyone’s understanding. However, the ‘Current
Projects’ section highlights the important law,
submissions and activities being undertaken by the
Commission.
web  weaving 
children’s rights and the rights of refugees in Australia,
whilst also advocating for same-sex entitlements,
and cultural diversity across the nation. AGE
DISCRIMINATION, SEX DISCRIMINATION
and RACE DISCRIMINATION all focus on every
Australian regardless of age, gender or race, having
the opportunity to be treated fairly and provided with
the same opportunities as everyone else.
The major areas of the Australian Human Rights
Commission each have their own dedicated pages, and
these pages also outline the relevant Commissioner
responsible for advocating and promoting the
issues. ABORIGINAL AND TORRES STRAIT
ISLANDER SOCIAL JUSTICE, looks at the way
in which all Australians – both indigenous and nonindigenous – have a multitude of choices available
to live their lives but also highlights the unique rights
indigenous Australians have as the ‘original peoples’
of the land. DISABILITY RIGHTS brings to the fore
the Disability Discrimination Act 1992 and promotes
equal opportunity and access for people living with a
disability. HUMAN RIGHTS is the broad approach
to addressing issues on civil and political rights,
For each dedicated web page of the Australian Human
Rights Commission website, the left-hand menu
bar changes to promote the relevant services and
information for the area which is being viewed. This
allows for a comprehensive database of information
for the community to be built.
Visually, the Australian Human Rights Commission
website is quite pleasing. Graphics are minimal; a
mix of cartoon imagery and portrait photography,
and when they do appear the image is simple and
relevant. The subtle imagery does not detract from
the information at hand, and is just enough to brighten
the page.
Anyone who is passionate about human rights,
particularly from Australia’s perspective, would be
well-served by visiting the Australian Human Rights
Commission website at www.hreoc.gov.au.
verdict  glossary 
Glossary
Black’s Legal Dictionary, 7th Edition
Animus felonicus: The intention to commit employment to divert or to steal customers from
the former employer.
a felony.
Annotation: n 1. A brief summary of the facts Hypobolum:
and decision in a case, esp. one involving statutory
interpretation. 2. A note that explains or criticises a
source of law, usu. a case. 3. A volume containing
such explanatory or critical notes.
Behoof: n. Archaic. A use, profit, or advantage
that is part of a conveyance.
n. [Latin fr. Greek] Civil law. A
legacy given to a wife, in addition to her dowry, on the
death of her husband.
Infidel:
1. A person who does not believe in
something specified, esp. a particular religion. 2.
Hist. A person who violates a feudal oath of fealty.
Jetsam: Goods that, after being abandoned at
Chafewax: Hist. A chancery officer who heated sea, sink and remain underwater.
(or chafed) wax to seal writs, commissions, and Kissing the Book: Hist. The practice of
other instruments.
Customary law: Law consisting of customs
that are accepted as legal requirements or
obligatory rules of conduct; practices and beliefs
that are so vital and intrinsic a part of a social and
economic system that they are treated as if they
were laws.
Deadbeat: Slang. A person who does not
pay debts or financial obligations, usu. with
the suggestion that the person is also adept or
experienced at evading creditors.
Expose’: n. [French] 1. A statement or account;
an explanation.
matter.
2. Exposure of discreditable
Fugue: An abnormal state of consciousness
in which one appears to function normally but on
recovery has not memory of what one did while in
that condition.
Gynaecocracy: Government by women; a
political state in which women are legally capable
of the highest office.
touching one’s lips to a copy of the Bible (esp. the
New Testament) after taking an oath in court.
Mental reservation: One party’s silent
understanding or exception to the meaning of a
contractual provision.
Miscegenation: A marriage between
persons of different races, formerly considered
illegal in some jurisdictions.
Sweating: Criminal procedure. The illegal
interrogation of a prisoner by use of threats or
similar means to extort information.
Transcript: n. A handwritten, printed or typed
copy of testimony given orally; esp., the official
record of proceedings in a trial or hearing, as taken
down by a court reporter.
Vendetta: n. A private blood feud in which
family members seek revenge on a person outside
the family (often members of another family); esp.,
a private war in which the nearest of kin seek
revenge for the slaying of a relative.
Window-dressing:
The
deceptive
Hands-off agreement: A non-compete arrangement of something, usu. facts or
contractual provision between an employer and
a former employee prohibiting the employee
from using information learned during his or her
appearances, to make it appear more attractive or
favourable.
advanced law  media 
Under the
How the media shapes comm
by Dr Rhonda Breit Positioning the Media
Dr Rhonda Breit is a Senior Lecturer in
Media Law and Ethics at the University
of Queensland, where she draws on her
personal experience as a lawyer and
a journalist.
Her qualifications include
LLB (The University of Melbourne), postgraduate studies in media law (MU) and
a PhD (Griffith University) in journalism
ethics.
E
veryone uses the media; but everyone
uses it differently and therefore has
slightly different views on the media’s
performance. The ‘role of the media in
shaping the community’s views of law and
order’ is a multi-layered and complex topic.
This complexity arises because everyone
has a slightly different view of the state of
law and order in their community.
Another level of complexity arises because each
person belongs to more than one community, and they
can belong to different communities at the same time.
For example, we belong to professional communities,
neighbourhood communities, social communities,
political communities, ethnic communities and many
more. Our expectations of the media can differ
greatly depending on the community in which we are
located.
Given the multi-layered nature of the subject, the
focus here is on just a few key areas, including the
position of the key concepts of media, law (and
order) and community, and what can be considered
as four central issues arising in relation to media and
community attitudes towards law and order.
To start, there needs to be a common understanding
of what is really being questioned with the role of
the media in shaping community views on law and
order. Media is a broad and all-encompassing term
that has multiple dimensions. In its simplest form
media means ‘an intermediate agency that enables
communication to take place’1. Thus media can be
seen as technology: the technology that is used to
disseminate messages. In recent years there has been
a tremendous change in this area with developments
in telecommunications technology and of course,
the Internet, which has been heralded as prompting
an information revolution.
The extraordinary
advancement in Internet and telecom technologies
has transformed the way people and the media access
and disseminate messages to mass audiences. In
some ways, it has turned full circle, allowing people
to individualise mass messages.
Media can also mean platforms: the technical
forms by which messages are disseminated, for
example radio, television, newspapers, books,
photographs, films and DVDs. Again, developments
in information communication technologies (ICTs)
and the phenomenon known as ‘convergence’
are changing media platforms, thus affecting the
structure and accessibility of mass messages. These
technological and structural changes to the media
have been described as having a democratising effect
on the media, where citizens are now able to generate
content and be less dependent on traditional forms of
media to find out about issues of concern or interest.
These changes have had multiple effects, including:
• expanding and creating new communities
• investing individuals with greater control
over the type of media they consume and/or
produce
• potentially expanding public access to media
e Influence
munity’s view of Law and Order
• potentially enhancing educational
opportunities
But as the World Internet Statistics reveal2, internet
take up is uneven. In Australia there has been a steady
increase in internet usage, increasing from about 6.5
million users in 2000 to 15.3 million users in 2008.
This represents about 74 percent of the Australian
population that use the internet.
Globally there has also been a tremendous increase
in internet usage in the years 2000 to 2008. Africa
and Asia have experienced incredible growth in
internet usage between 2000 and 2008 (growth of
1,030.2 percent and 363.4 percent respectively).
Notwithstanding these massive increases, the
percentage of population penetration is still the
lowest in the world. On the face of it, Australia is a
technologically engaged society with well-connected
communities. But further investigation of this data
reveals some disturbing patterns, both locally and
globally. The Australian Bureau of Statistics reported
in 2006 that there were ‘considerably lower access
rates for regional and rural areas, in comparison with
major cities of Australia, especially for Broadband
access’. The report continued:
Regression analysis results reveal that regional
and remote areas are at least 40 percent less likely
to have Broadband access relative to major cities.
The likelihood of any Internet access is relatively
higher, but still considerably lower than major
cities… Indigenous peoples are about half as
likely to have Broadband access compared to nonIndigenous people.3
So, while Australia is faring well, there are some
major inequalities in terms of access to ICTs.
The internet and technological developments have
made a marked effect on the law; how it is reported,
and court efficiency (among other effects). One key
aspect of the media’s role in shaping public attitudes to
law and order must address the effect of technology.
The term ‘media’ is probably most commonly used
to describe the mass media or mass communication,
which encompasses multiple dimensions including
the news media, film, television, libraries and book
publishers. There are two key areas, namely the role
of the news media and its effect on the community
views of law, on which to focus.
The effect of popular culture, in particular film and
television, on community attitudes to law and order,
should also be considered.
Positioning Law and the Community
Law can mean many things to many different people.
Like the media, it has multiple dimensions. The law
tells us what we can and cannot do. It tells us what to
do in order to do something else. Laws grant powers,
but the law can be an expression of current government
policy and/or social attitudes and values. Law can
take many forms: criminal, civil, administrative;
private and public; international, national or state.
For many people the law is seen as complex and
the professional
domain
for
l a w y e r s ,
therefore they
want to have
very little to
do with it.4
However, it is
undeniable that
everyone
is
affected by law.
So, the media
– in all its
forms, plays a
part in shaping
attitudes. There
are
positive
and negative
aspects of how
the media affects community attitudes on law and
order.
As mentioned previously, people belong to multiple
communities, simultaneously. In addition, people will
migrate to other communities during their life and so
community expectations in relation to the performance
of law and the media can be very different. It should be
accepted that there are different community measures
and attitudes in this regard. For example, indigenous
communities of Australia, generally, are extremely
disillusioned about the Australian media; they feel
over scrutinised, yet under-represented on key issues,
misunderstood and quite candidly they feel bullied
and betrayed. Similar feelings exist in relation to the
Australian legal system. So it must be acknowledged
that discussion about law and order is an abstraction:
a general Australian community that has many subcommunities; all of which have different expectations
of the media and the legal system. As Chief Justice
Gleeson noted:
There is a problem about treating people outside
the court system as a class with a consistent set
of opinions about courts. Such people include…
lawyers, who participate regularly in the work of
the courts and have a clear appreciation of the
strengths and weaknesses of the system; others
who are directly affected by the judicial process,
such as litigants, and whose success or failure
may colour their views; others, such as witnesses
and jurors, whose encounters with courts are
brief, but who may take away strong impressions;
others whose occupations give them a special
interest in or knowledge of aspects of the judicial
process, such as politicians, public officials, police
officers, medical practitioners or social workers;
others such as reporters and commentators, who
observe, describe and appraise, the work of civil or
criminal just, … (but) … Perhaps the largest group
… are people who think about the courts only on
the rare occasions when
something briefly attracts
their attention. Many of
those are people whose state
of opinion about the justice
system may run no deeper
than a reaction of approval
or disapproval to some
recent decision that has
come to their notice (usually
via the media).5
Technology and Public Attitudes to the
Media
The legal profession and the justice system have
embraced technology, and for a large part it has made
lawyers and the courts more efficient, bringing a wide
range of benefits to the public and the media.
Technology has also helped courts deal with
vulnerable witnesses, protecting them from the
traumatic courtroom experience, and has brought the
law, the legal profession and the courts into greater
media focus. High profile cases have been broadcast
directly, (with limited success for both the media
and courts) and the judiciary (through appropriate
avenues) are now using the media to explain some
of the challenges and issues confronting the judicial
systems in Australia.
In a review of Where Technology is Taking the Courts,
Supreme Court of Victoria Justice Stuart Morris noted
the extent to which Australian courts have embraced
technology. He questioned whether technology
was improving justice, concluding “technology is
underpinning a revival in the democratisation of the
law and justice system” in Australia because the public
are now better educated and courts (and legal advice)
are now more accessible. Justice Morris stated:
Better education, broader professional roles and the
ready accessibility of information are playing a role
in demystifying the justice system and allowing an
increased proportion of the system to be effectively
accessed without the need to hire lawyers.6
Technology is changing the roles of lawyers, who now
must offer more than legal advice; they must provide
comprehensive services and develop a community of
users. Here the media, in a different form, play a very
important part.
Justice Morris also highlighted the important role
technology plays in enhancing the transparency of
Australia’s judicial processes,
citing the accessibility of court
documents and decisions via
official court websites and the
central database AustLii as key
contributors. He also made
mention of the role of the media
in promoting transparency, but
was far less complimentary in
the role of Australia’s news
media, saying:
Notwithstanding the great
strides taken in the publication
of court and tribunal decisions
on the internet, there is still
a substantial problem in
conveying the reasons for
these decisions to the public.
Sentencing decisions may
pass through the filter of a
‘shock jock’ radio presenter
or a newspaper … whose
main focus is ‘celebrities
and battlers’. Controversial
town planning decisions may
pass to the public through
the filter of a Minister or
a council; or through a
journalist with a passion for
a particular type of city, or
simply a desire to provoke
controversy! I am sure that from time to time many
judges and tribunal members become frustrated at
the misrepresentation of their decisions. … Perhaps
controversial decisions could be published on the
internet – such as on the website of the court or
tribunal in question – at precisely the same time
that the decision is handed down. A summary
of the decision will often be an additional aid in
communicating with the public. Thought could
also be given to publishing or republishing other
information, necessary to give a controversial
decision context …7
With technological developments have come social
change, and the courts and the legal profession have
been called on to interpret how the law applies in this
state of change. At times this has caused confusion.
Even now, students refer to the internet and digital
domains as lawless frontiers. Media, in the form of
technology, has had a marked and measured effect on
public attitudes to law.
Technological changes, convergence and the ensuing
structural changes within the news and entertainment
media mean the public are more centrally located in
media production, whether it is news, current affairs
or entertainment. The public have more control over
content because technology allows them to pick
and choose the media they want to consume and the
technologically adept are now able to do their own
media programming and editing.
Corresponding with this technological empowerment
is a narrowing of media choice within Australia.
This has occurred for a number of reasons, including
concentration of media ownership, co modification
of information and ratings-oriented programming
with a penchant for conflict, sensationalism and the
extraordinary. Mainstream media tend to cover the
same events, in the same fashion and essentially
say the same thing portraying a somewhat distorted
mediated reality with which
few in the real world can
identify.
News, PR and Public
Perceptions of Law
and Order
Part of the problem relates to
the new production process,
which
emphasises
the
extraordinary, conflict and the
unusual. This means violent
and sensational crimes or the
quirky, unusual disputes tend
to dominate news spaces.
Dirk Gibson and Mariposa Padilla emphasise the
potential problems arising from media publicity
while criminal proceedings are pending, focussing on
the ‘effect of news reporting … upon the fairness of
the trial’8. They cite studies from the United States
which found that ’80 percent of jurors exposed to
prejudicial articles convicted while only 39 percent
of the control jurors did likewise’, distinguishing
between factual publicity (containing incriminating
information about the defendant), and emotional
publicity (containing information likely to arouse
negative emotions). They explain:
Factual publicity plays an important role in biasing
potential jurors by providing negative information
about the defendant … negative information about
the defendant’s character can influence jurors’
initial judgements about a defendant.
Gibson and Padilla note that the negative impression
of a person accused of crime starts early on in the
media coverage of criminal investigations, with
terms such as ‘the accused’ or ‘the suspect’ or ‘the
defendant’ having negative connotations with
audiences. A simple look at the law of defamation
reveals the harmful effect of publications that infer a
person is suspected of committing a crime. Further
studies tracking media coverage of crime, conclude
that coverage is more likely to be biased toward
the conclusion that a defendant is guilty because it
gives details of the alleged crime and the arrest of an
accused person9.
Researchers have mapped the long term consequences
of relying on media representations of law using
‘cultivation analysis’. The research tends to suggest
that the media can have significant impact on public
opinion and public attitudes to law and order. In
addition to the problems and effects, media publications
can traumatise victims of crime; they can put pressure
on parties to
proceedings,
they
can
influence
the
impartiality of
jurors and they
can undermine
public confidence
in the judicial
system.
The prominence
given to crime
and legal matters
can be explained
in terms of news
values where the
exceptional, the
unusual and the
novel are valued
at the expense of the ordinary10. The ‘sound bite’
experience of crime and justice can distort public
perception. But the relationship between media and
public is quite complex; with public attitudes affecting
how the media represent matters. In an article tracking
historical changes in the approach to reporting law
and order, it is noted that these changes in approach
correlate to changes in readers’ habits brought about
through cultural, social and legal changes11.
Changes to the news themes canvassed in legal
reporting, crime remains a major category of media
coverage, representing more than 25 percent of the
news coverage in Australian newspapers. But the
likely effect of media on community attitudes to law
and order must be considered in context. In Australia,
there is a widespread dissatisfaction with our media.
This is highlighted by the fact that journalists are rated
poorly by members of the Australian public in the
professional rankings12. The Roy Morgan Image of
Professions Survey interviewed 670 Australian men
and women aged 14 years and over, and it was found
that newspaper and television journalists ranked
within the bottom 10 professions; below politicians,
talkback radio hosts, union leaders and stock brokers.
In 2007, journalists were just ahead of insurance
brokers, real estate agents and advertising people.
Law and Popular Culture
The studies into the relationship between law and
media have focussed on three key areas, namely:
• representations of legal doctrine, lawyers,
juries, litigants, defendants and courts in film
and news media
• impact of pre-trial publicity
• role of media as a source of people’s
familiarity with and knowledge of the law
which tend to see people’s attitudes to law and
order distorted by media representations.
This body of studies tends to suggest that law
is synonymous with crime13. However, public
understanding of law is more centrally engrained
and audience-based research is needed to gain
better understanding of the extent to which media
representations do affect public perceptions.
Community understanding of law and order forms the
basis of the normative frames of reference mobilised
by people everyday, as they go about their daily life.
An everyday practice such as the formation of a
queue when several people are waiting to be served
requires participants to mobilise schemas of legality,
expressing preferences for order (and) fairness (‘first
come, first serve’) … values which underpin the legal
systems14.
When evaluating the effect of media representations
of these different interpretative communities,
account must be taken of other factors of social
difference that can affect people’s understanding of
law including issues such as race, gender, class, and
religion. There needs to be a distinction between
‘interpretive communities of different social profiles’,
when discussing the role of the media shaping a
community’s attitudes to law and order.
In order to evaluate the effect of media representations
of public understandings of law and order, questions
need to be asked of the professional domains of law
and journalism/media. Is the central question about
how media representations of law affect community
perceptions, or is the issue more of a question of
professional authority and who has the professional
authority to represent law?
Is it the domain of legal professionals and justice
workers or is it the domain of media workers, or is there
in fact, a need for multiple domains discussing law in
a variety of ways? This issue was, to some extent
at least, considered by the High Court in Australian
Broadcasting Corporation v O’Neill when a majority
of the High Court rejected a view that allegations of
serious criminal conduct were the sole domain of the
police and prosecuting authorities, observing such
views failed to reflect the reality in Australia and
other free societies where charges were sometimes
laid after media investigation and exposure15.
In delivering the finding of the case, a majority of the
High Court of Australia acknowledged that reporting
law was a legitimate domain of the mass media. But
other members of the High Court and members of
the lower courts challenged the authority of media to
report law because of its primary role for commercial
gain, not publication in the public interest16.
Undoubtedly, the media perform a range of roles that
shape community attitudes to law and order. These
roles include:
• ICTs which have made the law more
accessible, the system of justice more
transparent and have aided in court efficiency
• social construction of reality through
media representations can distort public
understandings of law and order in a range of
ways
One Life conducted by the West Midlands Police
in the United Kingdom17. Here, police, the media,
advertisers, public relations workers and educators all
worked together to support the campaign to educate
people about the harmful effects of knife crime. The
Superintendent of the West Midlands Police, at an
under 21 Summer School at Birmingham University
in the UK, reported on the tremendous success of
the campaign where justice workers and the media
worked together to respect each others’ authority to
report on legal issues.
As we look to the future leaders of the legal profession,
could this be a way forward?
• the news production processes can distort
public understandings of law
• entertainment and the focus on violence can
also distort public understandings of law and
order
• media representations of law and order add
another layer of discourse about law that
affects how people mobilise knowledge of law,
justice and fairness
• media discourse about law can detract from
the authority of the legal profession
• legal discourses about media and law can
detract from the media’s authority
There are multiple discourses influencing public
perceptions of
law and order
and an example
of where the
professional
fields of law,
media, public
relations,
advertising
and education
w o r k e d
together
to
positively
influence public
attitudes about
law and order
is demonstrated
in the campaign
One
Knife
Notes
1 O’Sullivan, T., Hartley,J., Saunders, D., Mongomery, M., Fiske, J. Key
Concepts in Communication and Cultural Studies 2nd edition,1994.
London, New York: Routledge, p176.
2 See www.internetworldstats.com/stats.htm.
3 Australian Bureau of Statistics, Patterns of Internet Access 2006,
viewed at www.abs.gov.au.
4 Breit, R. Law and Ethics for Professional Communicators, 2007.
Sydney: LexisNexis, Butterworths.
5 Gleeson, AM. Public Confidence in the Courts, National Judicial
College of Australia, Canberra, 9 February 2007, p3.
6 Morris, Justice S. Where is Technology Taking the Courts, Court
technology – Updates and Developments Conference, 20 October 2004,
Melbourne, p5.
7 Morris, Justice S. Where is Technology Taking the Courts, Court
technology – Updates and Developments Conference, 20 October 2004,
Melbourne, p7.
8 Gibson, DC., Padilla, ME. Litigation Public Relations Problems and
Limits, Public Relations Review 25(2), 1999, p215.
9 Gibson, DC., Padilla, ME. Litigation Public Relations Problems and
Limits, Public Relations Review 25(2), 1999.
10 Johnston, J., Breit, R. Constructing legal narratives: law, language
and the media, 2008.
11 Johnston, J., Breit, R. Constructing legal narratives: law, language
and the media, 2008.
12 Roy Morgan. Image of Professions Survey, 2007. See www.
roymorgan.com/news/polls/2007/4153/
13 Gies, L. Law as Popular Culture: Cross Disciplinary Encounters,
Continuum: Journal of Media and Cultural Studies, Vol19 No2, 2005,
pp 165-180.
14 Gies, L. Law as Popular Culture: Cross Disciplinary Encounters,
Continuum: Journal of Media and Cultural Studies, Vol19 No2, 2005,
p168.
15 Breit, R. How the law defines journalism, Australian Journalism
Review, 2008.
16 Breit, R. How the law defines journalism, Australian Journalism
Review, 2008.
17 See www.oneknifeonelife.co.uk.
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Law Week Poster Competition Winner 2009

Notes - Queensland Law Society

Transcription

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