Criminal Law
20.03.23
Is it legal to smack your kid? Should it be?
Corporal punishment, in the form of ‘reasonable chastisement’, remains lawful in the home throughout Australia.
Physically punishing kids has become more controversial in recent years with many calls for corporal punishment to be made illegal in Australia, as it now is in many countries around the world.
What is corporal punishment?
Corporal punishment is a punishment which is intended to cause physical pain to a person. In respect of children, it is the use of physical force with the intention of causing a child to experience pain or discomfort to correct or punish their behaviour. Physical punishment commonly involves smacking, spanking, slapping or hitting with an object such as a belt, stick or cane.
Is it legal in Australia?
It is currently lawful for parents in all states and territories to use ‘reasonable’ physical punishment to discipline their children. A parent’s right to use corporal punishment is contained in some state and territory legislation (such as in NSW), while in others it is provided for by way of common law (such as in the ACT).
In considering whether the physical force used on a child was reasonable in the circumstances, the Court will take into account a number of factors, such as:
- The child’s age, maturity, health and other characteristics;
- The nature of the child’s transgression and whether the use of physical force was reasonable in the circumstances; and
- Where on the child’s body the force was applied and whether it was likely to cause serious harm (the NSW legislation provide a child’s head and neck cannot lawfully be subject to force).
The laws regarding corporal punishment in childcare and schools tends to be more prohibitive and is more controversial than that imposed on the parents of a child. The Education and Care Services National Law Act 2010 (ACT) created a number of offences in relation to corporal punishment. Education providers and supervisors are required to ensure that children are not subject to any form of corporal punishment or discipline that is unreasonable and face hefty fines if they do not. Similarly, staff members and volunteers of education providers can be fined up to $10,000.00 if they use any form of corporal punishment.
Mirror legislation has been enacted across all jurisdictions in Australia.
Should it be legal?
It was once legal in Australia for men to ‘discipline’ their wives using violence. In fact, the well-known phrase “rule of thumb” is said to have derived from the maximum width of a stick allowed for wife-beating under old English law. Such behaviour is now considered reprehensible, as many people believe smacking children is. Lots of countries have banned corporal punishment, such as New Zealand, Japan, Greece and Sweden. According to a recent findings by the Australian Child Maltreatment study, 61% of children who were physically disciplined were 4 times more likely to suffer anxiety and depression as adults.
Some believe there is still a place for it in society, however. Just last year, during his decision to acquit a teacher charged with assaulting a child by smacking his arm, Magistrate Clisdell of the Queanbeyan Local Court suggested the world needed to “wake up” and “start putting the adults back in charge rather than the juveniles, or our society will go the way of the Roman empire”.
Other examples of lawful corporal punishment around the world
- Corporal punishment in public schools is legal in 19 American states and all but 2 states permit it in private schools. In this context, corporal punishment takes the form of a teacher striking a student’s buttocks with a wooden paddle.
- Caning as a form of corporal punishment is a common practice in Southeast Asian countries, such as Singapore, Malaysia and Indonesia, and is also used in Africa. In the context of judicial corporal punishment, prisoners are lashed with a cane, usually a thin rattan stick whipped at extreme speed, on the bare buttocks and less commonly the feet, knuckles and back. A caning often cuts the flesh and leaves permanent scarring.