The Defence of Lawful Correction
In all Australian jurisdictions, parents and those who act in a parental capacity are allowed to use reasonable force for the purpose of disciplining a child. If a person is charged with a criminal offence such as assault as a result of doing this, they may invoke the defence of lawful correction, which is also known as reasonable chastisement or domestic discipline. This page outlines the defence of lawful correction in Australia.
Lawful correction in New South Wales
Section 61AA of the Crimes Act 1900 outlines the circumstances under which a person accused of an assault can invoke the defence of lawful correction. In order to successfully rely on this defence in New South Wales, the accused must demonstrate the following:
- The force used was intended as a form of punishment for the child.
- The force was administered by a parent or someone in a parental role.
- The force was reasonable, taking into consideration the child’s age, health, maturity, the nature of the misbehaviour, and other relevant circumstances.
However, the defence of lawful correction will not apply if the force used meets either of the following criteria:
- The force was directed at the child’s head or neck, except in the case of insignificant or trivial force.
- The force is likely to cause harm to the child that will last for more than a brief period.
Domestic discipline in Queensland
Under section 280 of the Criminal Code Act 1899, parents and caregivers in Queensland may lawfully use reasonable force on a child for correction, discipline, management, or control purposes. This provision may serve as a defence against an assault charge in certain situations.
To secure 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 fails to prove either of these elements, the defendant must be acquitted.
Discipline of children in Western Australia
Under section 257 of the Criminal Code Compilation Act 1913, a parent or schoolmaster may use “reasonable force in the circumstances” to discipline or correct a child or student under their care. This provision also extends to individuals who act as a parent substitute, such as babysitters or relatives.
Domestic discipline in the NT
The Northern Territory recognizes a parent’s right to discipline their child using force, provided that the force used is reasonable considering the child’s age, size, and the context in which they are being punished. A parent can delegate their right to discipline their child to a caretaker, either explicitly or implicitly. School teachers are generally presumed to have this authority delegated to them unless explicitly withheld.
Section 11 of the Criminal Code outlines this right. A parent or person in loco parentis would typically be considered to be acting within the confines of this provision if they were to smack a child who was misbehaving or briefly confine a child as a form of punishment.
However, if a parent or caretaker uses excessive force, such as hitting a child with a closed fist, choking them, or causing bodily harm, they are likely to be considered to have gone beyond the acceptable level of force set out in this provision. In such cases, a charge of assault or another offence may be brought against them.
Physical punishment in Tasmania
In Tasmania, the physical punishment of children is lawful under section 50 of the Criminal Code Act 1924, which allows a parent or person acting in the role of a parent to use such force as it reasonable in the circumstances.
Lawful correction in Victoria
In Victoria, there is no legislation that outlines the defence of lawful correction of children. However, there is a common law defence for parents using reasonable physical punishment.
Lawful chastisement in the ACT
In the ACT, there is no explicit reference to physical punishment by parents in legislation. However, the defence of reasonable chastisement exists under common law.
Physical punishment in South Australia
In South Australia, legislation does not explicitly refer to physical punishment by parents. However, section 20(2) of the Criminal Law Consolidation Act 1935 allows for contact between persons that is generally accepted in the community. There is also a defence of reasonable chastisement at common law.
Criticisms of the defence
The defence of discipline of children has faced extensive criticism, with opponents arguing that there is ample evidence to suggest that physical punishment harms children, fails to effectively address misbehaviour, and can actually cause additional behavioural issues. Studies have also linked corporal punishment in childhood to mental health problems, substance abuse, and intimate partner violence in later life.
Opponents of physical discipline also contend that there is significant ambiguity surrounding the acceptable level of force when disciplining a child, and that legitimizing such discipline can create a slippery slope where reasonable chastisement escalates into more severe forms of violence.
Proponents of the defence, on the other hand, maintain that parents must maintain the authority to discipline their children when they exhibit unacceptable behaviour, and that physical discipline can serve as an effective means of deterring bad behaviour and setting boundaries.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.