Is it legal to smack my child? (Corporal Punishment Australia)

Earlier this year, a Perth mother was convicted of common assault after hitting her nine-year-old daughter on the buttocks with a wooden spoon.

Technically, any assault, whether or not occasioning serious harm, can attract a criminal charge. However in NSW, parental discipline can sometimes provide a lawful excuse.

Defence of lawful correction

If charged with an offence arising out of the application of force to a child, s 61AA of the Crimes Act 1900 (NSW) provides a defence where the force was applied for the purpose of 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 child, and
• the application of that physical force was reasonable.

What is reasonable force?

In deciding whether the force was reasonable, a court will consider the age, health, maturity and other characteristics of the child, as well as the nature of the alleged misbehaviour.

Force is not reasonable if it is applied to any part of the head or neck of the child, or if applied to any other part of the body of the child in a way that is likely to cause harm, or that lasts for more than a short period. Any use of force in such a manner is not reasonable unless it could be considered trivial or negligible.

According to the common law, force is unlikely to be reasonable if the child is not old enough to understand correction, or if the punishment is used for the gratification of ‘passion or rage’ of the parent.

The accused must prove that the force was reasonable on the balance of probabilities.

Who can use the defence?

In short, the defence is available to a parent, or a person acting for a parent of the child. A parent is ‘a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children’. A person acting for a parent of the child includes:

• a step parent of the child
• a de-facto partner of a parent of the child
• a relative (by blood or marriage) of a parent of the child or
• a person to whom the parent has entrusted the care and management of the child.

To utilise the defence, these people must be authorised by the parent of the child to use physical force to punish the child.

In the case of an Aboriginal or Torres Strait Islander child, a person acting for the parent of a child can include someone who is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child.

What about in child care or educational settings?

In NSW, the use of corporal punishment in schools, child care, and family day care settings is prohibited under s 166 of the Children (Education and Care Services National Law Application) Act 2010. The Act also prohibits any discipline that is unreasonable in the circumstances. The prohibition applies to

• providers,
• nominated supervisors,
• staff members and
• volunteers

The penalty for using corporal punishment or unreasonable discipline is $10,000.

Further, s 65 of the Children’s Services Regulation 2004 states that child management techniques should ‘not include physical, verbal or emotional punishment, including punishment that humiliates, frightens or threatens the child.

What about in out of home care?

The use of corporal punishment of children in out of home care is prohibited by s 41 of the Children and Young Persons (Care and Protection) Regulation 2012. The prohibition also extends to any punishment that is intended to humiliate or frighten a child.

What is the law in other countries?

Interestingly, corporal punishment is against the law in over fifty countries, including New Zealand. All jurisdictions in Australia provide for a defence of lawful correction as long as the punishment is reasonable in the circumstances.

If you have been charged with a criminal offence, you can contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.