Corporal Punishment of Children (WA)
In Western Australia, criminal law permits a person to physically discipline a child under some circumstances. The reasonable discipline of a child may be used as a defence to a charge of assault if the accused person was acting in the capacity of a parent. This page deals with the corporal punishment of children in Western Australia.
What is corporal punishment?
Corporal punishment occurs when a person uses physical force to cause pain or discomfort to another person as a punishment. Every state and territory of Australia has different laws about the corporal punishment of children. However, some degree of reasonable corporal punishment is permissible in all Australian jurisdictions. In some states, it is unlawful to use corporal punishment in residential care and foster care settings.
Corporal punishment is also known as “reasonable chastisement” or “lawful correction”. Corporal punishment may involve hitting, smacking or using a cane on a child as a form of punishment for misbehaviour. It may also involve requiring a child to stay in an uncomfortable position for a period.
Legislation on corporal punishment in WA
Section 257 of the Criminal Code Compilation Act provides that a parent is allowed to use reasonable force to discipline or correct a child in their care. It is also lawful for someone who is acting in loco parentis (that is, acting in the place of the parent) such as babysitter to use reasonable force to discipline a child.
Service providers and corporal punishment
In Western Australia, it is unlawful for education and care service providers to use physical discipline in any form on a child. This prohibition is contained in section 11 of the Education and Care Services National Law Act 2012. A person who uses corporal punishment in either of those settings may be charged with an offence punishable by a fine of up to $10,000 (for an individual) or up to $50,000 (for a company).
It is important to note that section 257 of the Criminal Code Compilation Act states that schoolmasters are included in the classes of people who are permitted to use physical discipline against a child. This is overridden by section 11 of the Education and Care Services National Law Act.
Schoolmasters and corporal punishment
Staff members at education and care services in Western Australia must not use corporal punishment on children. In the past, Western Australia and education legislation allowed corporal punishment to be used in the context of education; however, the law has now been expressly changed to disallow this.
The defence of discipline of children
A person who is charged with an assault offence that arose in the context of disciplining a child may rely on the criminal defence of discipline of children. This defence will succeed only if the level of force was reasonable in the circumstances taking into account factors such as the age and physical size of the child, the type of force used, the part of the body the force was used on, and the nature of the child’s misbehaviour.
Criticisms of the defence
The defence of discipline of children has long been subject to widespread criticism. Opponents of the defence argue that evidence shows that corporal punishment is harmful to children, that it is not an effective way of addressing misbehaviour, and that it can cause further behavioural issues. Physical discipline of children has also been linked to the development of mental health and substance abuse issues later in life as well as to domestic violence. Critics of the defence also argue that there is a lot of uncertainty about how much force is acceptable when disciplining a child gives rise to a “slippery slope” where reasonable punishment snowballs into more serious violence.
The physical punishment of children has been made illegal in many countries and opponents of the defence of corporal punishment of children argue that Australia is lagging behind. Some researchers have argued that the use of any form of violence against children should be outlawed in order to protect the well-being of children, in the same way that other behaviours that are harmful to children have been outlawed — such as smoking in a car where children are present.
Supporters of retaining the defence of punishment of children argue that parents need to have the power to discipline when children misbehave and that corporal punishment is an effective way of responding to bad behaviour and setting boundaries.
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