The Defence of Lawful Correction of a Minor

by Sonia Hickey
Smack Child

A 46-year old unemployed single mother has been sentenced to nine months’ probation after pleading guilty to assaulting her 10-year old son with a wooden spoon. 

The court heard that the woman smacked her autistic son, who suffers from ADHD, on the backside causing bruising after discovering he had used her credit card without permission to buy $600 worth of video games. 

During the sentencing proceedings in the Gold Coast, the woman’s criminal defence lawyer told the court that her client was suffering from depressing after having lost custody of both her children. The full reasons for the decision to remove the children have not been reported.

Magistrate Mark Bamberry remarked in court, “I can only imagine how difficult this is as a single mother with two children to make ends meet”. His Honour went on to state:

“I was struck by my grandfather about 40 years ago”.

“Unfortunately society has moved on and that behavior isn’t tolerated.”

It’s a decision that’s likely to polarise parents everywhere. After all, most of us who are old enough to be parents currently, remember being on the receiving end of the wooden spoon, Dad’s trouser belt or even a teacher’s ruler, for poor behaviour. 

Smacking a child is illegal in more than 30 countries 

But the Magistrate is correct: Times have changed. Smacking a child is illegal in more than 30 countries now, including Seden, Scotland, Wales, France and New Zealand.  

Many of these countries have outlawed what is otherwise termed ‘corporal punishment’ because the United Nations Convention on the Rights of the Child makes it clear that children have the right to be protected from harm and from being hurt, which includes physical punishment. 

In Australia smacking a child is not against the law. 

Section 280 of Queensland’s Criminal Code is the relevant legislative provision, allowing parents (and caregivers such as teachers) to use such force as is ‘reasonable under the circumstances’ to correct or discipline their child. Full details of the case are not available – including any injuries that the child may have sustained.

Defence of lawful correction in New South Wales

Lawful Correction is a complete defence to a criminal charge in New South Wales, which means it leads to a verdict of ‘not guilty’.

The defence is contained in section 61AA of the Crimes Act 1900 (NSW) which states that you are not criminally responsible for an offence arising from applying physical force to a child if:

  1. You were the child’s parent or were acting for the child’s parent,
  2. You applied force to punish the child, and
  3. The force was reasonable.

A ‘child’ is a person under the age of 18 years.

A person ‘acting for a parent’ is:

  1. The child’s step-parent, or the parent’s de-facto partner or relative, or a person to whom the parent has entrusted the child’s care, and
  2. Who the parent authorises to use physical force to punish the child.

In the case of Indigenous persons, a person acting for a parent includes a person recognised by the Indigenous community as having special responsibilities towards the child.

The factors relevant for determining whether the force was ‘reasonable’ are:

  1. The child’s age, health, maturity and other characteristics,
  2. The nature of the alleged misbehaviour, and
  3. Any other relevant circumstances.

Physical force that is more than trivial or negligible is not reasonable where applied to:

  1. The child’s head or neck, or
  2. Any other part of the child where the harm is likely to last more than a short period of time.

Crossing the line of ‘reasonable force in reasonable circumstances’ 

If a parent or caregiver crosses the line of what is determined ‘reasonable force in reasonable circumstances’ then it is entirely possible they can face allegations of domestic violence – which can have implications for the custody and care of children, or even charges of common assault, which carries a maximum two-year prison term. 

UK TV’s ‘Super Nanny’ Jo Frost has always maintained that smacking children is not acceptable. But here in Australia, it appears that we have different views. According to the results of Australia Talks National Survey in 2019 found that almost half of Australians (47 per cent) believe smacking is acceptable, whilst 38 percent disagreed.

Is smacking a child harmful? 

Over time, researchers and psychologists have tended to be as polarised as parents on the issue. 

However, a number of studies have suggested that smacking can lead to anti-social behaviours, aggression and mental health issues in adulthood. 

The most recent, a national study of 8500 people, found that 60 per cent of young Australians have been smacked repeatedly by their parents, and are almost twice as likely to develop anxiety and depression as teens and adults.

This latest survey has prompted calls for a ‘smacking ban’ which will open up the debate – it’s good to have a robust community discussion so that parents can make informed choices about how they discipline their children, knowing there are potential consequences for mental and emotional wellbeing from being smacked, and also so that  lawmakers can ensure there are substantial protections in the law to keep children from serious harm. 

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Author

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

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