Lawfulness of corporal punishment

Home

Corporal punishment in the home is regulated at state rather than at federal level, and is lawful throughout Australia under the right of “reasonable chastisement” or similar (Australian Capital Territory Child Welfare Ordinance, 1957, section 124; Northern Territory Criminal Code Act section 27; Queensland Criminal Code Act, 1899, section 280; South Australia Criminal Law Consolidation Act, 1935, section 39 and subsequent amendments; Tasmania Criminal Code Act, 1995, amended 2005, section 50; Western Australia, Criminal Code Act, 1913, section 257; Victoria under common law rule).

In New South Wales, under the Crimes Amendment (Child Protection – Physical Maltreatment) Act (2001, in effect 2002), inserting section 61AA into the Crimes Act (1900), physical punishment by a parent or caregiver is considered unreasonable if the force is applied to a child’s head or neck, or the force is applied to any part of the body in such a way as to cause, or threaten to cause, harm to the child which lasts more than a short period, and in such cases the defence of “lawful correction” does not apply.

Legal reform is being considered in Tasmania, where in 2003 the Law Reform Institute recommended the abolition of the defence of reasonable correction from criminal and civil law. As at June 2007, no changes in the law had been made. In Queensland in 2005, a group of psychologists (Concerned Psychologists Queensland) lobbied the state government to repeal the defence of reasonable force “by way of correction, discipline, management or control” (section 280 of the Criminal Code); the proposal was made again in 2007 by the former attorney-general and state education minister.

In 2007, the Federal Government supported an anti-smacking campaign “Every Child is Important”, compiled by the Australian Childhood Foundation as a kit to be available at various community, health and education centres in 16 languages. Calls for full prohibition, particularly following legal reform in New Zealand in 2007, have been rejected.

Schools

Corporal punishment in schools is regulated at state level.

In Australian Capital Territory, Tasmania and Victoria, corporal punishment is prohibited by law in both government and independent schools (respectively Education Act 1937, amended 1997; Education Act 1994; Education Regulations 1988 and Education and Training Reform Act 2006). In New South Wales it is prohibited in government schools under Ministerial school discipline guidelines (Education Act, 1990, section 3) and in private schools as a condition of registration (Education Act, section 47), but the “reasonable chastisement” defence is available. In Queensland and Western Australia, corporal punishment is prohibited as a matter of education policy but the defence of “reasonable chastisement” is available; it is permitted in non-government schools.. In Northern Territory and South Australia, corporal punishment is lawful in both government and private schools.

Penal system

Corporal punishment is prohibited as a sentence for crime in all states and territories.

Corporal punishment is unlawful as a disciplinary measure in penal institutions in New South Wales (Children (Detention Centre) Regulations, 2000), Northern Territory (Juvenile Justice Act, 2000), South Australia (Corporal Punishment Abolition Act, 1971) and Victoria (Children and Young Persons Act, 1989). In Queensland it is prohibited by the Juvenile Justice Regulations (1993) and in Tasmania by the Youth Justice Act (1997), but in both cases the “reasonable chastisement” defence is potentially available. In Western Australia, the Child Welfare (Detention Centre) Regulations (1989) prohibited the use of corporal punishment, but these regulations were repealed by the Young Offenders Regulations (1995) and the prohibition does not appear in the new Regulation. There are no juvenile detention centres in Australian Capital Territory – young people are accommodated in New South Wales facilities.

Alternative care

Corporal punishment is prohibited by policy guidelines or departmental instructions in most, but not all, other institutions and forms of childcare.

Corporal punishment is prohibited in child care centres in Australian Capital Territory (Long day care licensing conditions, 1993), New South Wales (Children’s Services Regulation, 2004), Queensland (Child Care (Child Care Centre) Regulation, 1991; Child Care (Family Day Care) Regulation, 1991), South Australia (Children’s Services (Child Care Centres) Regulations, 1998; Child Care Centre Regulations, 1985), Tasmania (Centre Based Child Care Licensing Guidelines, 1997), Victoria (Children’s Services Regulations, 1988; Children’s Services Act, 1998) and Western Australia (Community Services (Child Care) Regulations, 1988). It is permitted in child care centres in Northern Territory.

In residential centres, “reasonable” corporal punishment is prohibited in New South Wales (Children (Care and Protection) Regulation, 1996, and Schedule 2), Queensland (Child Protection Act, 1999), South Australia (Family and Community Services Regulations) and Victoria (Children and Young Persons Act, 1989). It is permitted in Northern Territory and Western Australia. The “reasonable chastisement” defence is available in Australian Capital Territory, Queensland, South Australia and Tasmania.

In foster care, corporal punishment is prohibited in New South Wales (Children (Care and Protection) Regulation, 1996 and Schedule 1), Queensland (Child Protection Act, 1999), South Australia (by licensing requirements) and Tasmania (by Child Care standards). It is permitted in Northern Territory and Victoria. The “reasonable chastisement” defence is available in Australian Capital Territory, Queensland, South Australia, Tasmania, Victoria and Western Australia.

Workplace

No information.

Other

In detention and removal services at immigration centres, the Immigration Detention Standards prohibit collective, corporal, cruel, inhumane or degrading treatments and punishments.

Prevalence research

A survey of parents in Queensland, conducted by the Parenting and Family Support Centre, University of Queensland, and reported in 2007, found that 71% smacked their children occasionally. When asked how likely parents were to use smacking as a punishment, 43% said they were likely or very likely to give a single smack with their hand; 10% said they were likely or very likely to spank their child more than once with their hand or another object. (Reported in Herald Sun, 19 May 2007)

Telephone interviews with a representative sample of 720 adults aged 18+ were carried out in 2006 by Quantum Market Research on behalf of the Australian Childhood Foundation and the National Research Centre for the Prevention of Child Abuse at Monash University. The research found that 45% of respondents believed it was reasonable to leave a mark on a child as a result of physical punishment (representing a decrease from the 55% found in similar research in 2002). One in 10 believed that it was appropriate to use implements such as canes, sticks, belts, or slippers to punish a child (representing an increase in support for the use of implements compared with the 4% figure found in the 2002 research); one in seven (14%) supported the use of a wooden spoon. Two out of five (41%) believed that smacking a child is effective in shaping his or her behaviour, while one in ten believed that smacking a teenager is an effective way of discipline. When presented with the statement that it is sometimes necessary to smack a naughty child, 69% agreed, representing a decline in support for corporal punishment when compared with similar research in 2002 (75%). (Tucci, J., Mitchell, J. & Goddard, C., 2006, Crossing the Line: Making the case for changing Australian laws about the physical punishment of children, Ringwood, Victoria, Australia: Australian Childhood Foundation)

A survey of 1,200 parents commissioned by the National Child Protection Council, reported in 1995, found that 80% thought it unharmful to hit a child, with 20% believing it acceptable to use an implement such as a ruler, leather strap or wooden spoon; 50% of respondents believed it is every parent’s right to discipline children in any way they see fit.
(Reported in “Editorial: Australia”, Times Educational Supplement, 15 September 1995)

In a large scale survey of the health and wellbeing of children, conducted in 1993 by the Western Australian Institute for Child Health Research, about 30% of parents were reported as smacking their children aged 4-11 years.
(Reported in Save the Children, 2005, Discipline and punishment of children: a rights-based review of laws, attitudes and practices in East Asia and the Pacific – Save the Children Sweden Southeast Asia and the Pacific, regional submission to the UN Secretary General’s Global Study on Violence against Children, Save the Children Sweden)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes with satisfaction that most of its concerns and recommendations (CRC/C/15/Add.79) made upon the consideration of the State party’s initial report (CRC/C/8/Add.31) in 1997 have been addressed. However, it notes that some concerns and recommendations have been insufficiently or partly addressed regarding, inter alia, ... corporal punishment...

“The Committee notes with concern that corporal punishment in the home is lawful throughout Australia under the label “reasonable chastisement” and other similar provisions in states’ legislation. Furthermore, the Committee is concerned that while corporal punishment has been prohibited in government schools and some private ones in most states and territories, it is still lawful in many private education institutions and in both government and private schools in South Australia and the Northern Territory.

“The Committee recommends that the State party:

1. take appropriate measures to prohibit corporal punishment at home and in public and private schools, detention centres and all alternative care settings in all states and territories;
2. strengthen awareness-raising and education campaigns with the involvement of children in order to promote positive, non-violent forms of discipline and respect for children’s rights, while raising awareness about the negative consequences of corporal punishment.”

(20 October 2005, Concluding observations on second and third report, CRC/C/15/Add.268, paras. 5, 35 and 36)

“The Committee expresses its concern about the lack of prohibition in local legislation of the use of corporal punishment, however light, in schools, at home and in institutions; in the view of the Committee this contravenes the principles and provisions of the Convention, in particular articles 3, 5, 6, 19, 28 (2), 37 (a), (c), and 39. The Committee is also concerned about the existence of child abuse and violence within the family.

“The Committee suggests that the State party take all appropriate measures, including of a legislative nature, to prohibit corporal punishment in private schools and at home. The Committee also suggests that awareness-raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention. The Committee also believes that cases of abuse and ill-treatment of children, including sexual abuse within the family, should be properly investigated, sanctions applied to perpetrators and publicity given to decisions taken. Further measures should be taken with a view to ensuring the physical and psychological recovery and social reintegration of the victims of abuse, neglect, ill-treatment, violence or exploitation, in accordance with article 39 of the Convention.”
(10 October 1997, CRC/C/15/Add.79, Concluding observations on initial report, paras. 15 and 26)

Legal status of corporal punishment of children in Australia