It is a very controversial and contentious topic amongst parents – is smacking your child illegal in Australia? and is smacking allowed as a way of administering discipline to children.
The answer may seem obvious, however as with all things in law, the devil is in the detail.
Many people born in the 1970s or earlier have stories of being smacked with a wooden spoon by a parent, after doing something wrong. Today, that could be called assault depending on the situation, who used the wooden spoon and the amount of force applied.
A mother recently plead guilty at the Southport Magistrates Court in Queensland to assaulting her child. The mother physically disciplined her 10-year-old by smacking him with a wooden spoon which then left a bruise.
The 10-year-old boy had used his mother’s credit Card to spend $600.00 on games. The boy was 10 years old and has ADHD and autism spectrum disorder.
Magistrate Bamberry handed the mother a nine-month probation order, with no conviction recorded. Magistrate Bamberry did sympathise with the woman’s situation, saying he himself had been smacked as a child but said unfortunately “society has moved on from physically punishing children.”
The mother also lost custody of her two children following the event. The authorities were alerted to the situation because her son proceeded to kick holes in the walls after being hit by the mother, causing the neighbours to contact police who attended the property.
The law in other countries
In many countries physical punishment of children as a means of disciplining them has been banned. New Zealand passed legislation in 2007 to ban the physical disciplining of children. Other countries that have similar bans include Sweden, Germany, Italy, Greece and Spain.
Child Smacking Laws In Australia
In New South Wales, common assault is dealt with under section 61 Crimes Act 1900 (NSW). Common assault is an assault which does not result in actual bodily harm (or injury).
It includes a person intentionally or recklessly causing another person to apprehend immediate and unlawful violence (such as raising a clenched fist at someone), spitting at someone, or making actual physical contact, such as punching, kicking or pushing someone. It is also important to note that you do not need to apply force to have considered to assault a person.
The offence itself carries a maximum penalty of up to 2 years imprisonment and/or a $5,500 fine. This offence is the least serious of the assault offences. The more serious assault offences involve actual bodily harm to the victim.
These offences carry a higher punishment. Bruising is considered actual bodily harm which is what happened in the case of the mother referred to earlier.
The Defence of Lawful Correction
In New South Wales, you are not allowed to assault a child even if you are disciplining that child. Section 61AA of the Crimes Act 1900 (NSW) contains a defence of lawful correction. That section provides that it is a defence if the force applied to the child was done by a parent of the child and was “reasonable having regard to the age, health, maturity or other characteristics of the child and the nature of the misbehaviour or other circumstances”
The defence cannot be relied upon where the parent has physically disciplined the child by applying punishment to the head or neck of the child or if the punishment is applied in such a way that it is likely to cause harm to the child that lasts more than a brief period.
The law states that a person acting in “loco parentis” meaning acting in the place of the parent, may also rely on this defence. This includes someone who has temporary care of the child. A parent is taken to include a step-parent, spouse of a parent, relative by blood or marriage or a person authorised by the parent of the child to use physical force.
The accused is the one who bears the onus of proving that their actions fell within the ambit of what is acceptable behaviour under Section 61AA of the NSW Crimes Act.
It is an offence to assault any person in New South Wales. However, when it comes to punishment of a child, a parent or a person acting in the place of a parent may be able to rely on the defence of lawful correction if that person is charged with assault arising from physical discipline of a child. However, physical discipline which causes harm that lasts for more than a brief period (such as bruising or other injury) is unlikely to be conduct of the type that falls within the available defence.
If you are charged with a criminal offence, contact Lawpoint today and speak to one of our experienced criminal lawyers.
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