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The 'right' to smack a child is foreign to Australian law

By Patmalar Ambikapathy Thuraisingham - posted Tuesday, 4 January 2011


It has been a long tradition in the laws of Australia that corporal punishment is a defensible technique for instilling discipline and obedience in children. The law accepts that if a child is hit, that is assaulted, in the course of child rearing, parents have the option of a defence of reasonable chastisement.

Most parents never use excessive force but remain convinced that they must have this option as otherwise they would not be able to control a child and teach them socially responsible behavior and the difference between right and wrong. As I did not have a childhood where hitting was an option, I remain unconvinced.

As a child, I sometimes had to be reasoned with and have things explained to me before I could be persuaded to do the right thing and conform to adult expectations. When I was an infant this was of course not possible as I was too young to understand or be reasoned with, and at that stage I was simply physically removed from danger, mischief or nuisance.

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I only learned that my behavior was incorrect by the tone of voice used, emotion expressed in a face and physical cues in a carer’s body language. Yes it would have probably been burdensome for my carers to communicate with explanations and non-verbal cues, but as a grandmother now I can see no sense in hitting children at all.

Before we take sides allow me to take you down the years of my legal practice in three common law continents.

I was always perplexed when I learned at University that although no one was above the law, a husband could beat a wife, as could a parent and those in the place of a parent, a child, even though the action amounted to an assault.

Having led a very sheltered legal life till I started practice in Australia, this idea simply remained a paradox that I believed I would grasp one day in the way one eventually does grasp other legal conundrums.

However, when I commenced practice in rural Victoria, this paradox which I could not integrate into my lived experience and value systems, became reawakened in the form of a rude shock as women began to slip into my practice for property and civil issues and make offhand remarks about matters of which I had no comprehension. 

Finally, I realized they were trying to express the silence they had been forced into by societal acceptance of abusive norms. I asked a colleague to assist and inform me whether I was misreading things. Was there an element of abusive behaviours within societal norms in marriage here? He said as politely and as gently as he could that I would have to expect at least a quarter of marriages that break up to have abusive elements in it.

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Later when I received the same guarded comments about children being abused, I became alarmed but did not seek advice from my colleagues when I was struggling to help clients because I was no longer game to ask tricky questions.

If I queried accepted processes, I was treated as ignorant by most, from the police right up to lawyers and all the other professions in between that that were involved in the issues of abuse and violence in homes. So I was forced to start researching the law and came upon that same paradox that seemed to be cast in stone and concrete.

Nevertheless, it was my legal scepticism and sense of outrage at the sheer injustice of this paradox that prevented me from dropping out of this area. I had very little support from anyone when I protested that this was surely not right and also found very little guidance in any legal texts.

Indeed my qualifications began to be queried, I was asked if I was a lawyer, and if so where on earth did I qualify. It was an uphill struggle but it naturally became a challenge to find remedies for such criminal activities. I did not know it then, but other lawyers, doctors and activists in all fields like poets, artists and story tellers in past ages had joined the chorus of the disadvantaged that had sought help for this paradox.

 In this country emerging legal literature pioneered by the Hon Dr Jocelynne Scutt also commenced challenging this paradox. It was just recently, when I was on an enforced break due to health issues, that I contemplated the academic queries raised by a paper I had published on my website in October 2009. I had a flash of insight as to what I believe was fossilized legal thinking.

The Hon Dr Scutt had argued from the 70’s when she graduated as a lawyer, that the legally sanctioned violence against women that existed then, was based on an error of law. She left this country to publish her thoughts in a strongly researched and evidence-based doctorate in America.

When I met her in the northern summer in Cambridge this year, she said I was right in my research that there was a similar error in legal thought in the defence we now have for violence against children.

I then discovered that Sir Matthew Hale, the author of those thoughts on the common law in the seventeenth century, had been a member of my Inns of Court and had donated his books to their library when he died.

The librarians there obligingly retrieved his books from the basement and furnished me with a facsimile of his treatise that stated that English common law allowed such violence against wives, apprentices, servants as well as children.

I then confirmed that the law that had been discredited for women existed even now for children.

In R v Hopley  in 1860 the then Chief Justice of England Sir Alexander Coburn (who was never made a law lord), stated that the law allowed parents to use corporal punishment to correct what was evil in a child providing the force used was reasonable. He chose not to follow Sir William Blackstone an Oxford academic who was the first Vinerian law professor there, who stated instead, that the law permitted the correction of children but with no violence. Coburn CJ provided no precedent or reason for his decision.

Coburn CJ followed Hale’s version of the law, and after 1860, common law and legislation followed the thoughts of a man who in the seventeenth century presided over the legally sanctioned burning of witches, rather than the Christian lawyer Sir William Blackstone. Thus it appears and it is my view that Hale is the author of the defence of corporal punishment of children.

In Victoria the operative case is R v Terry and the physical abuse of children sanctioned there makes a mockery of our charter of our Human Rights and Responsibilities Act. Most academics dismiss Blackstone as being no authority for Australian law but seem to accept Hale, even though when the first fleet arrived here, Blackstone was the authority in England.

Dismissing Blackstone is no longer a tenable proposition as in R v Marion, the High Court of Australia approved of the English House of Lords case of R v Gillick.

In that case there was an acceptance of Blackstone’s version of the common law and our Justice Brennan identified the actual words used by Blackstone in Mabo(2). The High Court has confirmed Blackstone twice, and this provides us with an opportunity for law reform where violence against children will be illegal just as violence against women is now.

There is a federal government initiative to effect law reform by having stricter rules about violence under the FamiIy Law Act. However, this will only mean that we are dealing with symptoms, not the cure, as the Commonwealth Model Criminal Code reflects Hale rather than Blackstone.

It is time to bring about law reform so children receive the protection of the law extended to adults so they will be equal before the law.

I suggest that we look at the New Zealand version of the defence that permits physical contact with a child to protect the child from things like harm, damage or antisocial behavior. It in no way allows or condones violence against children.

I also suggest that as New Zealand has done this successfully for 3.5 years, Australians may now be ready for this law reform.

It is a breach of the human rights of a child to consider that hitting needs to be part of discipline, when there is so much research to refute opinion and received wisdom that such abuse does not harm children.

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About the Author

Patmalar Ambikapathy, BA ( Durham) Barrister ( London), M.Phil ( Cambridge), is a Barrister and Human Rights Consultant for Children.

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All articles by Patmalar Ambikapathy Thuraisingham

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