The Defence of Lawful Correction
The defence of lawful correction, also known as reasonable chastisement or discipline of children, exists in all Australian jurisdictions. Parents and those acting in a parental capacity may use reasonable force to discipline a child, and if they are charged with a criminal offence, they may rely on this as a defence. This page provides an overview of the defence of lawful correction in Australia.
Lawful correction in New South Wales
The defence of lawful correction in New South Wales is contained in section 61AA of the Crimes Act 1900. This provision states that the accused must prove the following:
- The force was intended as a punishment for the child.
- The force was administered by a parent or someone in a parental role.
- The force was reasonable considering the child’s age, health, maturity, nature of the misbehaviour, and other relevant factors.
However, the defence is not applicable if the force used meets either of the following criteria:
- The force was aimed at the child’s head or neck, except in cases of insignificant or trivial force.
- The force is likely to cause lasting harm to the child beyond a brief period.
Domestic discipline in Queensland
In Queensland, the use of reasonable force by parents and caregivers to correct, discipline, manage, or control a child is allowed under section 280 of the Criminal Code Act 1899. This provision can be used as a defence against an assault charge under certain circumstances.
To obtain a conviction, the prosecution must prove beyond a reasonable doubt that either:
• The defendant did not use force for the purposes of correction, discipline, management, or control of their child; or
• The amount of force used was unreasonable.
If the prosecution is unable to prove either of these elements, the defendant must be acquitted.
Discipline of children in Western Australia
Section 257 of the Criminal Code Compilation Act 1913 permits parents to utilize “reasonable force in the circumstances” for the purpose of disciplining or correcting a child or student in their custody. This provision also applies to individuals who serve as a parent substitute, such as babysitters or relatives.
Domestic discipline in the NT
The Northern Territory permits a parent to use force to discipline their child, but only if it is reasonable given the child’s age, size, and the situation in which they are being punished. Parents can delegate this authority to a caregiver, either explicitly or implicitly, with schoolteachers presumed to have this authority unless explicitly denied.
Section 11 of the Criminal Code sets out this right, and smacking a misbehaving child or briefly confining them as a punishment would generally fall within this provision. However, using excessive force, such as hitting with a closed fist, choking, or causing bodily harm, would be considered beyond the acceptable level of force and could result in charges of assault or other offenses.
Physical punishment in Tasmania
Section 50 of the Criminal Code Act 1924 permits parents or individuals acting as parents in Tasmania to use reasonable force in disciplining children, thereby making physical punishment of children lawful in the jurisdiction.
Lawful correction in Victoria
There is no specific law in Victoria that defines the defence of lawful correction for disciplining children. However, there exists a common law defence for parents who use reasonable physical punishment.
Lawful chastisement in the ACT
The ACT legislation does not explicitly mention physical punishment by parents. Nonetheless, the common law defence of reasonable chastisement is recognized in this jurisdiction.
Physical punishment in South Australia
Legislation in South Australia does not specifically mention physical punishment by parents. Nevertheless, section 20(2) of the Criminal Law Consolidation Act 1935 recognizes permissible contact between individuals that is generally accepted in the community. Furthermore, there is a common law defence of reasonable chastisement.
Criticisms of the defence of lawful correction
The defence of disciplining children has faced widespread criticism due to concerns that physical punishment can cause harm, fail to effectively address misbehaviour, and lead to additional behavioural issues. Research has linked childhood corporal punishment to mental health problems, substance abuse, and intimate partner violence later in life. Moreover, opponents argue that there is significant ambiguity surrounding the acceptable level of force, and that legitimizing physical discipline may result in a slippery slope towards more severe forms of violence.
Supporters of the defence maintain that parents must have the authority to discipline their children and that physical punishment can be an effective means of deterring bad behaviour and setting boundaries.
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