Discipline of Children (WA)

In Western Australia, it is lawful to physically discipline a child in some circumstances. A parent charged with an assault resulting from the reasonable discipline of a child may rely on this as a defence. This page deals with the lawful discipline of children in WA.

Legislation

Under section 257 of the Criminal Code Compilation Act, a parent or schoolmaster may use ‘such force as is reasonable in the circumstances’ to discipline or correct a child or pupil in their care. It is also lawful for a person acting in place of a parent (such as a babysitter or relative) to do so.

Physical punishment by service provides

Under the Education and Care Services National Law Act 2012, it is unlawful for education and care service providers to use any form of corporal punishment. Section 11 of that Act makes it an offence punishable by a fine of up to $10,000 (for an individual) or up to $50,000 (for a company) to:

• Use corporal punishment of any kind; or
• To use any discipline that is unreasonable in the circumstances

Against a child who is being educated and cared for by the service.

Discipline of children by schoolmasters

Section 257 of the Criminal Code conflicts with section 11 of the Education and Care Services National Law Act 2012. Under the latter Act, it now an offence for a staff member at an education or care service to use corporal punishment on a child. While previously, WA education legislation allowed the use of physical punishment in educational settings, the law has now been expressly changed to prohibit this.

This results in ambiguity as to the legality of the use of force by schoolteachers in WA, which is permitted under the Criminal Code Compilation Act.

What is corporal punishment?

Corporal punishment is the use of physical force to cause pain or discomfort to a child to punish the child for their behaviour. It often consists of smacking, spanking or hitting a child with a cane. It can also involve forcing a child to remain in an uncomfortable position for a period of time.

In other Australian jurisdictions, the lawful physical punishment of children is referred to as ‘reasonable chastisement’ or ‘lawful correction’. It is lawful in all states and territories to use ‘reasonable’ physical punishment to discipline a child. In some states this is codified in legislation while in others it is conferred by the common law.

In some states, physical punishment is prohibited in residential care and foster care settings. Under the WA legislation, it is still permissible in these settings.

Criticisms of the defence

There has long been widespread criticism of the defence of discipline of children. Critics of the defence argue that there is a lot of evidence that corporal punishment harms children, does not effectively address misbehaviour, and can in fact cause further behavioural issues.

Corporal punishment as a child has also been linked to mental health and substance abuse issues in later life as well as to intimate partner violence.

Opponents of corporal punishment also maintain that there is widespread uncertainty about the level of force that is acceptable when disciplining a child and that the legality of such discipline can lead to a ‘slippery slope’ where reasonable chastisement snowballs into more serious forms of violence.

Supporters of the defence argue that parents need to retain the power to discipline children when they behave in a way that is unacceptable and that physical discipline is an effective way of deterring bad behaviour and setting boundaries.

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