Corporal Punishment of Children (NSW)

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In the past, the physical punishment of children by parents and even teachers was widely accepted. In recent years, the question of whether smacking children is acceptable and appropriate has become controversial. While some people argue corporal punishment is a necessary part of childhood discipline, others say that any form of physical violence is morally wrong and should be forbidden at law.

In New South Wales, the criminal law provides a defence to assault against a child in the context of punishment, but only in certain circumstances. The legislative defence modifies the common law defence of lawful correction.

The legislation

Section 61AA of the Crimes Act 1900 provides that when a person is charged with an assault arising out of the application of physical force to a child, it is a defence if the force was applied for the purpose of punishment if:

• It was done by the child’s parent or someone acting for their parent;
• The physical force was reasonable having regard to the age, health, maturity or other characteristics of the child and the nature of the misbehaviour or other circumstances.

Physical force is not reasonable if:

• it is applied to the head or neck of the child (unless the force was trivial or negligible);
• it is applied in such a way that is likely to cause harm to the child that lasts more than a short period;

Who is a child?

A child, for the purpose of this defence, is a person under the age of 18.

Who is a parent?

A parent is a person who has the duties, powers, responsibilities and authority in respect of the child. A person acting for a parent is someone who has been entrusted with the care and management of the child and authorised by a parent to use force to punish the child.

Should the law be changed?

Many jurisdictions, including New Zealand, Germany, Italy and Greece, have passed laws prohibiting the physical punishment of children. In Australia, there is a lot of support for making it illegal to smack a child. However, there are also voices that strongly support retaining the law in its current form.

Arguments for changing the law

Advocates for making corporal punishment illegal say that physical discipline is indistinguishable from physical abuse as both consist of acts of violence such as hitting and shaking. The requirement that the physical force be ‘reasonable’ also makes it very hard to determine whether a parent is acting lawfully as there is no consensus in the community about what is reasonable in the interests in discipline.

In 2014, UNICEF, the UN body responsible for advocating for children’s rights, defined physical punishment as a form of violence. Research has indicated that the use of corporal punishment on children leads to aggression, poor mental health and other negative outcomes. Research has also found that corporal punishment is ineffective as a disciplinary strategy, with children just as likely to defy parents who smack them. It also suggests that corporal punishment increases the risk of physical abuse.

Other criticisms of physical discipline are that it teaches children that violence is a means of resolving conflict, that it undermines the positive relationships children have with parents and caregivers and that it is done when parents are angry and not in control.

Arguments against changing the law

Supporters of physical punishment argue that it is a necessary part of educating children about right and wrong behaviour. A smack catches the attention of the child being disciplined in a way that less direct forms of punishment may not. In a situation of physical danger, such as a child trying to run onto a road, a smack can instil fear in the child of the consequences of doing something dangerous and thus keep the child safe.

Corporal punishment by non-parents

New South Wales, South Australia, Tasmania and Victoria have all prohibited the use of corporal punishment in schools. In the other jurisdictions, there is some ambiguity in the law as to whether corporal punishment is permissible in a school setting. In the Northern Territory, corporal punishment has been banned in non-government school but there is no provision outlawing it in government schools. In Queensland, it is banned in state schools, while ‘reasonable discipline’ is allowed in non-government schools.

The law varies between jurisdictions as to whether corporal punishment of children is allowed in residential care settings. In Queensland, the Child Protection Act prohibits the use of corporal punishment on a child placed in care (Section 122), while in the NT, the Criminal Code permits the its use to ‘discipline, manage or control’ a child (Section 27). In New South Wales, corporal punishment is prohibited in out-of-home-care under Section 41 of the Children and Young Persons (Care and Protection) Regulations 2012.

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