Corporal Punishment

The Australian Institute of Family Studies has updated its useful guide to corporal punishment of minors.

The guide notes that parents in all jurisdictions may lawfully use "reasonable" corporal punishment to discipline their children, with NSW remaining the only state to have made legislative amendments concerning corporal punishment by parents. The Crimes Amendment (Child Protection Physical Mistreatment) Act 2001 (NSW) states that physical punishment should not harm a child "more than briefly" and specifies the parts of a child's body that can be subject to force; the Act does not ban the use of corporal punishment altogether.

The guide identifies the following regimes -

• ACT - no legislation regarding the use of corporal punishment by parents. The defence of "reasonable chastisement" remains in common law. 
• NSW - the Crimes Amendment (Child Protection-Physical Mistreatment) Act 2001 (NSW) amended the Crimes Act 1900 (NSW), specifies that physical punishment by a parent should not harm a child more than briefly and specifying the parts of a child's body that can be subject to force. 
• NT - the Criminal Code Act (NT) s 27 provides for parents and teachers (unless parents expressly withhold their consent) to lawfully apply force to a child for the purposes of discipline and correction.
• Qld - the Criminal Code Act 1899 (Qld) s 280 provides that it is lawful for a parent (or person in the place of a parent) "to use, by way of correction, discipline, management or control, towards a child or pupil, under the person's care, such force that is reasonable under the circumstances". It therefore remains lawful for a parent to physically punish/correct their child. 
• SA - no enactment expressly provides for the use of corporal punishment by parents but the Criminal Law Consolidation Act 1935 (SA) s 20(2) provides for contact between persons that would generally be regarded as accepted within the community, in addition to the common law defence of "reasonable chastisement".
• Tas - physical punishment by a parent or a person in the place of a parent remains lawful under the Criminal Code Act 1924 (Tas) s 50, which provides for use, by way of correction, of any force that is reasonable in the circumstances. 
• Vic - the common law defence covers parental use of corporal punishment that is neither unreasonable nor excessive
• WA - the Criminal Code Act 1913 (WA) s 257 provides that it is lawful for parents or a person in the place of a parent to use, by way of correction such force as is reasonable under the circumstances. 

In relation to childcare and early education the guide comments that

In 2011, the Education and Care Services National Law was introduced by way of an applied law system where the host jurisdiction (Victoria) passed the law - Education and Care Service National Law Act 2010 (Vic) - and other jurisdictions adopted that law or passed corresponding legislation.

Under s 166 of the Victorian statute it is an offence for a provider, nominated supervisor, staff member, and volunteer or family day care educator of an approved education and care service to subject a child to any form of corporal punishment. Consistent with the preceding comments not all jurisdictions have specifically included corporal punishment as an offence under individual education and care services statutes, with variations as follows -

• ACT - adoption of the National Law Act through the Education and Care Services National Law Act 2011 (ACT). The Children and Young People Act 2008 (ACT) states that a person responsible for a childcare service commits an offence if they use unreasonable discipline in the form of physical punishment or any behaviour management strategy likely to cause physical harm to a child, which includes but is not limited to smacking. A childcare service includes long day care, family day care, outside school hour's care and pre-school services.
• NSW - the Children (Education and Care Services National Law Application) Act 2010 (NSW) adopting the National Law Act prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.
• NT - adoption of the National Law under Education and Care Services (National Uniform Legislation) Act 2011 (NT) prohibits the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.
• Qld - the Education and Care Services National Law (Queensland) Act 2013 (Qld) does not expressly prohibit or condone the use of corporal punishment in education and care services. The guide notes that the 2011 Bill commented that because of the ambiguity of the offence, it would be difficult to prosecute and that procedural manuals and other guidance notes developed at the national level for use in administering the National Law are expected to provide regulatory authorities with direction about the circumstances in which action should be taken in relation to the proposed offence.
• SA - the Education and Early Childhood Services (Registration and Standards) Act 2011 (SA) adopting the National Law Act prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service. 
• Tas - adoption of the National Law under the Education and Care Services National Law (Application) Act 2011 (Tas) specifically excludes services that provide childcare, addressed under the Child Care Act 2001 (Tas). 
• Vic - the Education and Care Services National Law Act 2010 (Vic) prohibits the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service. 
• WA - adoption of the National Law Act under the Education and Care Services National Law (WA) Act 2012 (WA) prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.

What of primary and secondary schools? The guide comments that "There has been considerable uniformity across Australian states and territories in either explicitly banning the use of corporal punishment in schools or removing provisions in education Acts that provided a defence to the use of reasonable chastisement by people acting in the place of a parent". Queensland and South Australian statutes do not expressly state that corporal punishment is banned in schools but provisions that previously allowed for the use of corporal punishment in schools have been removed from relevant education legislation.

There remains some ambiguity in the Northern Territory, Queensland and Western Australian law, where amendments have been made to education legislation that previously allowed for the use of physical punishment, but not to criminal codes that still (in principle) give authority to a parent, or a person in place of a parent, to "use reasonable corrective force".

There is less consistency in the degree to which Australian jurisdictions have abolished the use of corporal punishment in non-government schools. New South Wales, Tasmania and Victoria are the only states where statutes clearly stipulate that corporal punishment is banned in both government and non-government schools. The Australian Capital Territory Education Act 2004 does not explicitly ban corporal punishment in non-government schools, however, the interpretation of the Act, which states that corporal punishment is banned in "all schools", is that the relevant provision applies to both. 

Statutes are as follows -

• ACT - corporal punishment is banned in "all schools" under the Education (Amendment) Act 2004 (ACT) s 7(4). 
• NSW - the Education Act 1990 (NSW) s 35 prohibits corporal punishment in government schools in NSW, extended to non-government schools under the Education Discipline Act 1995 (NSW).
• NT - the Education Amendment (Non-Government Schools) Act 2009 (NT) s 61A(m) amended the Education Act requiring that the use of corporal punishment be banned in non-government schools as part of the school registration requirements. There is currently no provision expressly banning or permitting the use of corporal punishment in government schools. The Criminal Code Act (NT) s 11 makes it lawful for teachers to use corporal punishment unless parents expressly withhold their consent to such forms of correction.
• Qld - the Education (General Provisions) Act 2006 (Qld) repealed provisions that allowed for corporal punishment in state schools.
• SA - the Education (Amendment) Act 1991 (SA) repealed provisions that allowed for corporal punishment in schools
• Tas - corporal punishment was banned in government and non-government schools under the Education Amendment Act 1999 (Tas) s 82A, specifying that school principals are responsible for ensuring that students under their care are not subjected to corporal punishment. 
• Vic - corporal punishment was banned in government schools in 1985 and banned in non-government schools in 2006 under the Education and Training Reform Act 2006 (Vic) ss 2.4.60 and 4.3.1(6)(a)
• WA - corporal punishment was banned in government schools under the School Education Act 1999 (WA). The School Education Regulations 2000 (WA) s 40(2) indicate that the ban does not extend to non-government schools.