Prohibition of corporal punishment and alternative justifications for the lawful use of force against children in Australia

Abstract

The prohibition of corporal punishment in Australia will require reform of the criminal law of assault to abolish defences in each Australian state and territory that permit the use of force on children for the purpose of punishment. This paper highlights the anomaly of those defences by undertaking a comparative doctrinal analysis with other Australian criminal law principles that excuse the use of force by parents and caregivers, including force for the purpose of management and control, and physical contact that is accepted by the community as part of everyday life. This comparison highlights the persistence in the corporal punishment defences of outdated notions of parental rights and authority over children, in contrast to broader trends in the law toward recognising that parents exercise responsibilities in the best interests of their children. In addition, this analysis confirms that abolition of Australian defences for corporal punishment will not criminalise parents and caregivers using force for purposes other than punishment.