Corporal punishment: Key issues

Corporal punishment: Key issues

CFCA Resource Sheet— March 2014

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Corporal punishment is a contentious and much debated issue within the community. This resource provides a brief overview of research literature on the use of corporal punishment towards children and the legal landscape regarding corporal punishment as a means of disciplining children in Australia. We examine the distinction between corporal punishment and physical abuse, and the relationship between corporal punishment and discipline. Arguments for and against changes to the law in this area are also discussed.

What is corporal punishment?

Corporal punishment is defined as the use of physical force towards a child for the purpose of control and/or correction, and as a disciplinary penalty inflicted on the body with the intention of causing some degree of pain or discomfort, however mild. Punishment of this nature is referred to in several ways, for example: hitting, smacking, spanking, and belting (Cashmore & de Haas, 1995). Although most forms of corporal punishment involve hitting children with a hand or an implement (such as a belt or wooden spoon), other forms of corporal punishment include: kicking, shaking, biting and forcing a child to stay in uncomfortable positions (United Nations Committee on the Rights of the Child, 2006). The desired outcome of physical punishment is child compliance with adult directives (Gawlik, Henning, & Warner, 2002; Smith, Gollop, Taylor, & Marshall, 2004).

Corporal punishment or physical abuse?

The degree of physical punishment that a parent or carer can use with a child is subject to legal regulation in Australia. In most states and territories, corporal punishment by a parent or carer is lawful provided that it is carried out for the purpose of correction, control or discipline, and that it is "reasonable" having regard to:

  • the age of the child;
  • the method of punishment;
  • the child's capacity for reasoning (i.e., whether the child is able to comprehend correction/discipline); and
  • the harm caused to the child (Bourke, 1981).

Corporal punishment that results in bruising, marking or other injury lasting longer than a 24-hour period may be deemed to be "unreasonable" and thus classified as physical abuse. As an example, the New South Wales Crimes Act 1900 (NSW) establishes that corporal punishment is unreasonable if the force is applied to any part of the head or neck of a child or to any other part of the body of a child in such a way as to be likely to cause harm to a child that lasts for more than a short period. Corporal punishment that is unreasonable in the circumstances may be classified as physical abuse and could lead to intervention by police and/or child protection authorities.

What does research tell us about the use of corporal punishment towards children?

Research findings regarding the use of corporal punishment towards children has examined a number of different outcomes. Some reviews of the literature suggest that corporal punishment may lead to adverse child outcomes (Gershoff, 2002; Linke, 2002; Smith et al., 2004). For example, in a review of the research, Smith et al. (2004) reported a number of negative developmental consequences for children who had experienced corporal punishment, including: disruptive and anti-social behaviour; poor academic achievement; poor attachment and lack of parent-child warmth; mental health problems (particularly internalising problems such as depression); and substance and alcohol abuse.

Research has shown that corporal punishment is effective in achieving immediate child compliance. However, Gershoff (2002), Smith et al. (2004) and others have argued that the benefits associated with immediate child compliance can be offset by findings that indicate corporal punishment fails to teach a child self-control and inductive reasoning. Instead, corporal punishment teaches a child to avoid engaging in behaviour that is punishable by way of force while in an adult's presence (in contrast to teaching a child not to engage in the undesirable behaviour at all). In addition, Linke (2002) argued that corporal punishment teaches a child that problems can be addressed through physical aggression.

Other research suggests that the relationship between corporal punishment and adverse child outcomes is not definitive, mainly due to inconsistent definitions of corporal punishment and other methodological concerns (Ferguson, 2013).  Baumrind, Larzelere and Cowan (2002) argued that findings such as those in the study by Gershoff (2002) may misrepresent the relationship between corporal punishment and child outcomes as the studies are often simplistic, and include in their definition of corporal punishment both children who have experienced milder forms of corporal punishment such as smacking, and children who have experienced serious physical abuse.

More recent research documented retrospective accounts of punishment styles experienced by the adult children of twins from the Australian Twin Registry. This research found that controlled corporal punishment (defined as spanking or smacking) was only weakly associated with a negative outcome for children, but that harsh corporal punishment was strongly associated with poor behavioural and emotional outcomes. Having access to longitudinal data from the parental twins' childhood punishment experiences, as well as the experiences of their offspring, allowed this research to statistically control for genetic and environmental factors. The results indicated that the type of punishment a parent engages in has some causal influence (i.e., environmental factors had a greater impact than genetics alone) on a child's behavioural and emotional outcomes (Lynch et al., 2006).

While there are no clear answers regarding the consequences of using corporal punishment as a disciplinary strategy towards children, what is clear is that there is limited evidence to support any positive outcomes associated with corporal punishment (Ferguson, 2013; Lynch et al., 2006). The effects of corporal punishment are likely to be influenced by several factors, including:

  • the quality of the parent-child relationship;
  • how often and how hard a child is hit;
  • whether parenting is generally "hostile";
  • clear boundary setting and consistent use of discipline; and
  • whether other disciplinary techniques are also used, particularly ones that are suited to a child's age, and are likely to enhance his or her learning and capacity for reasoning (Gershoff, 2002; Smart, Sanson, Baxter, Edwards, & Hayes, 2008).

In summary, while both Baumrind et al. (2002) and Beckett (2005) argued that we are not in a position to presuppose a clear causal link between corporal punishment (particularly parental smacking) and adverse child outcomes, the results of the twin study conducted by Lynch and colleagues (2006) are an early indication that a causal link may exist. There is still some debate about how well existing research distinguishes between severe physical abuse and physical discipline such as smacking, but current research efforts are looking to distinguish these behaviours more clearly (Ferguson, 2013; Lynch et al., 2006).

In what circumstances are children more likely to experience corporal punishment?

Research shows that children between the ages of 3 and 5, and children who exhibit challenging behaviours and difficult temperaments are more likely than other children to be the recipients of corporal punishment (Smith et al., 2004). In addition, according to the Global Initiative to End All Corporal Punishment of Children (GIEACPC) (2012), children with disabilities are particularly vulnerable to violent punishment, with research indicating they are 3.6 times more likely than children without a disability to experience physical violence, including "spanking" (Jones, et al., 2012). 

There are also clear gender differences, with boys more likely to experience corporal punishment than girls (Smith et al., 2004). Within the family setting, contextual factors such as family structure (e.g., number of children), economic disadvantage, and family stress increase the likelihood that parents will resort to physical punishment. In addition, Smith et al. argued that a wider social context that effectively sanctions the use of physical punishment contributes to its continuation.

Are corporal punishment and discipline the same thing?

The main goal of any disciplinary strategy is to educate children about acceptable and unacceptable behaviour. Corporal punishment is one disciplinary technique. However, there are many other disciplinary techniques that parents can employ, such as:

  • providing appropriate supervision;
  • making rules (appropriate to the child's age and stage of development);
  • setting and enforcing boundaries;
  • firmly saying "no";
  • explaining why certain behaviour is inappropriate;
  • giving consequences;
  • withdrawing privileges; and
  • using "time out" or quiet time.

Other steps parents can take to minimise misbehaviour include:

  • minimising the need for discipline or punishment by planning ahead to prevent problems from occurring (e.g., avoiding grocery shopping when a toddler is tired or irritable);
  • being consistent with children;
  • modelling desired behaviours; and
  • praising, encouraging and rewarding children and providing them with warmth and affection (Parenting SA, 2010).

An important component in all disciplinary strategies is to maintain parental consistency. Parenting that is inconsistent can be confusing for children and lead to misbehaviour. Research from the Longitudinal Study of Australian Children shows that inconsistent parenting is strongly associated with behavioural problems in children, including conduct problems, low prosocial behaviour, hyperactivity, emotional difficulties and problems relating to peers (Smart et al., 2008). When parents are consistent in their disciplinary strategies, children learn what to expect from their parents if they misbehave. Children are less likely to test boundaries or push limits that are firmly set and when they know the consequences of poor behaviour (Spock & Needlmen, 2009).

Other research from the Longitudinal Study of Australian Children showed that behavioural problems were strongly linked with higher levels of parental hostility. Children are four times more likely to have conduct problems and twice as likely to have hyperactivity problems when experiencing hostile parenting (Smart et al., 2008). Evidence suggests that warmth and affection in parent-child relationships is linked with more positive outcomes for children (Smart et al., 2008). In the Longitudinal Study of Australian Children, higher parental warmth was shown to reduce the risk of conduct problems, peer problems and low prosocial behaviour in children 4-5 years of age (Smart et al., 2008).

For more information on discipline strategies see the Parenting Research Centre's Raising Children Network which provides helpful and practical advice about disciplining children of all ages.

The Australian legal context

The criminal defence of "reasonable chastisement" used by way of correction exists (or has existed) in many countries. Such a defence allows a parent or person acting in loco parentis (that is, in place of a parent, for example, a teacher, carer or guardian) charged with assaulting a child in their care to argue that the assault was justified as they were using reasonable force to discipline or correct the child (Milfull & Schetzer, 2000; Saunders & Goddard, 2010; Smith et al., 2004).

Historically, all Australian states and territories had some form of policy or legislation that allowed for "reasonable chastisement" by a parent or person in place of a parent (e.g., teachers) as a means of discipline (Cashmore & de Haas, 1995; Saunders & Goddard, 2010). For example, section 50 of the Criminal Code Act 1924 (Tas.) formerly read:

It is lawful for a parent or a person in the place of a parent, or for a school master, to use, by way of correction, towards a child or pupil respectively under his care, such force as is reasonable under the circumstance.

Legislation across all states and territories concerning the use of corporal punishment has been the subject of substantive review, particularly in relation to the lawfulness of corporal punishment in school settings (see Corporal Punishment in Schools in this paper) and early education and childcare settings (see Corporal Punishment in Early Education and Childcare Settings in this paper).

In 2009 the Council of Australian Governments (COAG) endorsed the introduction of the National Framework for Protection of Australia's Children 2009-2020 (National Framework), an agenda for improving the safety and wellbeing of Australia's children. The National Framework does not specifically address the issue of corporal punishment. However, the Australian Government noted in its 2012 surveillance submission to the Convention of the Rights of the Child that positive parenting is supported and promoted through the National Framework and through the Family Support Program. These aim to complement work done by states and territories by providing integrated services for families with skilled family support and early childhood workers. Through this work, education regarding positive parenting is disseminated in parent education programs and early childhood health care and education activities (Attorney-General's Department, c. 2012).

In the sections that follow, information is presented about the current laws on the use of corporal punishment. Table 1 documents details of current law by state and territory on the use of punishment by parents, and Tables 2 and 3 provide details of current law by state and territory regarding the use of corporal punishment in early education and childcare centres and primary and secondary schools, respectively. 

Corporal punishment by parents

In relation to corporal punishment by parents, it remains lawful for parents in all jurisdictions to use "reasonable" corporal punishment to discipline their children. New South Wales is the only state to have made legislative amendments concerning corporal punishment by parents. In 2001, New South Wales introduced the Crimes Amendment (Child Protection Physical Mistreatment) Act, which 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 development and implementation of this Act encouraged debate concerning the degree (if any) of physical force appropriate to use when disciplining children and, more generally, the status of children's rights in Australia (Milfull & Schetzer, 2000). While the New South Wales amendment sought to constrain parental use of corporal punishment, it does not ban the use of corporal punishment altogether.

In some jurisdictions a parent's right to use corporal punishment is provided for in legislation (e.g., New South Wales), while in others it is provided for by the common law ("judge-made law") (e.g., Victoria) (see Table 1). All Australian states and territories condone (in principle) the use of force by a parent, by way of correction, towards a child.

Table 1: Australian law regarding the use of corporal punishment by parents
State Legislation and or common law relating to corporal punishment by parents Legislative Act or Criminal Code

ACT

The ACT has no legislation concerning the use of corporal punishment by parents. The Child Welfare Ordinance 1957 allowed a person with the lawful care of a child to administer physical punishment, however the Act was repealed by the Children's Services Ordinance 1986. At present, the defence of "reasonable chastisement" remains in common law.

Children's Services Act, 1986 (ACT)

NSW

The Crimes Amendment (Child Protection-Physical Mistreatment) Act 2001 (NSW) introduced an amendment specifying that physical punishment by a parent should not harm a child more than briefly and specifies the parts of a child's body that can be subject to force. This amendment to the Crimes Act 1900 (NSW) did not entirely remove parental capacity for corporal punishment nor explicitly ban the use of physical force towards children, but it did introduce strict guidelines on what is acceptable.

Crimes Act 1900 (NSW) s  61AA

Crimes Amendment (Child Protection - Physical Mistreatment) Act 2001 (NSW) No 89 (PDF 22.7 KB)

NT

On the basis of the Criminal Code Act (NT), it is lawful for parents and teachers (unless parents expressly withhold their consent) to apply force to a child for the purposes of discipline and correction.

Criminal Code Act (NT) s 27

QLD

The Criminal Code Act 1899 (Qld) states that:

It is lawful for a parent or a 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.

Criminal Code Act 1899 (Qld) s 280 (PDF 1.6 MB)

SA

There is no legislation that explicitly provides for the use of corporal punishment by parents in South Australia. However, there is a section in the Criminal Law Consolidation Act 1935 (SA) that provides for contact between persons that would generally be regarded as accepted within the community. There also exists a common law defence of "reasonable chastisement".

Criminal Law Consolidation Act 1935 (SA) s 20(2)

and common law defence

Tas.

Physical punishment by a parent towards a child remains lawful under the Criminal Code Act 1924 (Tas.). The Act reads:

It is lawful for a parent or a person in the place of a parent to use, by way of correction, any force towards a child in his or her care that is reasonable in the circumstances.

Criminal Code Act 1924 (Tas.) s 50

Vic.

There is no legislation concerning corporal punishment by parents in Victoria, however, there is a common law defence for parental use of corporal punishment. Victorian common law allows parents to administer corporal punishment to children in their charge provided the punishment is neither unreasonable nor excessive.

Common law defence

WA

Under the Criminal Code Act 1913 (WA) it remains lawful for parents to physically discipline their children. Section 257 of the code states that:

It is lawful for a parent or a person in the place of a parent ... to use, by way of correction, toward a child or pupil under his care, such force as is reasonable under the circumstances.

Criminal Code Act 1913 (WA) s 257

Corporal punishment in early education and childcare settings

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) and other jurisdictions adopted that law or passed corresponding legislation (Australian Children's Education & Care Quality Authority (ACECQA), 2013a).

Under the Education and Care Service National Law Act 2010 (Vic.)section 166 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. This prohibition is also contained within the National Quality Standards (ACECQA, 2013b). However, not all jurisdictions have specifically included corporal punishment as an offence under individual state and territory education and care services legislation. Variations to the applied law by jurisdiction are described in Table 2 below.

Table 2: Australian law regarding the use of corporal punishment in education and care services
State Legislation relating to corporal punishment in education and care services Legislative Act or Criminal Code

ACT

The ACT has adopted the National Law Act and refers to section 20 of the Children and Young People Act 2008 for corresponding law regarding prohibition of corporal punishment. The Child and Young People 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.

Education and Care Services National Law (ACT) Act 2011

Children and Young People Act 2008 (ACT) s 741

NSW

New South Wales has adopted the National Law Act prohibiting the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service (see Part 6, section 166). 

Children (Education and Care Services National Law Application) Act 2010 No 104 (NSW) (PDF 2.4 MB)

NT

The Northern Territory has adopted the National Law Act prohibiting the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service (see Part 6, section 166). 

Education and Care Services (National Uniform Legislation) Act 2011 No 46 of 2011 (NT)

QLD

The Queensland Act does not explicitly prohibit or condone the use of corporal punishment in education and care services. The Education and Care Services Bill 2011 notes that due to 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.

Education and Care Services National Law (Queensland) Act 2013

Education and Care Services National Law (Queensland) Bill 2011 Explanatory Notes (pp. 26-27)

SA

South Australia has adopted the National Law Act prohibiting the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service (see Part 6, section 166).

Education and Early Childhood Services (Registration and Standards) Act 2011 (SA)

Tas.

In Tasmania, the National Law has been adopted to include services that provide education and care, specifically excluding services that provide childcare.

Childcare services are provided for under the Child Care Act 2001.  Neither Act specifically prohibits the use of corporal punishment, however the Education Act in Tasmania prohibits the use of corporal punishment in all schools.

Education and Care Services National Law (Application) Act 2011 (Tas.)

Child Care Act 2001 (Tas.)

Education Act 1994 (Tas.) s 82A

Vic.

In initiating the National Law Act, the Victorian Act 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 (see Part 6, section 166). 

Education and Care Services National Law Act 2010 (Vic.)

WA

WA has adopted the National Law Act prohibiting the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service (see Part 6, section 166). 

Education and Care Services National Law (WA) Act 2012

Corporal punishment in primary and secondary schools

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 (e.g., teachers) (see Table 3). Legislation in Queensland and South Australia does not explicitly state that corporal punishment is banned in schools. However, the provisions that previously allowed for the use of corporal punishment in schools have been removed from the 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 (see Table 3). 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.

Table 3: Australian law regarding the use of corporal punishment in schools
Jurisdiction Legislation regarding the use of corporal punishment in government and non-government schools Relevant legislative Acts

ACT

Corporal punishment was banned in schools in 1997 under the Education (Amendment) Act 2004 (ACT). The purpose of the act was to ban punishment in "all schools". The Act does not explicitly state that it relates to both government and non-government schools, however the interpretation is that is applies to both.

Education Act 2004 (ACT) s 7(4)

NSW

Corporal punishment was banned in government schools in NSW pursuant to the Education Act 1990 (NSW). An amendment to the Act (the Education Discipline Act 1995, which came into effect in 1997) extended the ban on corporal punishment to non-government schools.

Education Act 1990 (NSW) s 35 & s 47(h)

NT

In 2009, the Northern Territory amended the Education Act requiring that the use of corporal punishment be banned in non-government schools as part of the school registration requirements. However, there is currently no provision banning or permitting the use of corporal punishment in government schools. The Criminal Code Act (NT) still makes it lawful for teachers to use corporal punishment unless parents expressly withhold their consent to such forms of correction.

Education Amendment Act (NT) (Non-Government Schools) 2009 s 61A(m)

Criminal Code Act (NT) s 11

QLD

Queensland repealed provisions that allowed for corporal punishment in state schools in 1989 in the Education (General Provisions) Act 2006 (Qld).

Education (General Provisions) Act 2006 (Qld)

SA

South Australia repealed provisions that allowed for corporal punishment in schools in 1991 in the Education (Amendment) Act 1991 (SA).

Education (Amendment) Act 1991 (SA)

Tas.

Corporal punishment was banned in both government and non-government schools in 1999 under the Education Amendment Act 1999 (Tas.). The amendment specified that the principals of both state and registered schools are responsible for ensuring that students under their care are not subjected to corporal punishment.

Education Act 1994 (Tas.) s 82A

Education Amendment Act 1999 (Tas.)

Vic.

Corporal punishment was banned in government schools in 1985. It was banned in non-government schools in 2006 following the enactment of the Education and Training Reform Act 2006 (Vic.).

Education and Training Reform Act 2006 (Vic) s 2.4.60 & s 4.3.1(6)(a)

WA

Corporal punishment was banned in government schools in Western Australia under the School Education Act 1999 (WA). The School Education Regulations 2000 state that a student at a government school is not to be disciplined by way of corporal punishment. Regulations banning corporal punishment do not extend to non-government schools.

School Education Regulations 2000 (WA) s 40(2)

The international picture

Internationally, 37 countries have prohibited corporal punishment in all settings in legislation: Albania (2010); Austria (1989); Bulgaria (2000); Congo, Republic of (2010); Costa Rica (2008); Croatia (1998); Cyprus (1994); Denmark (1997); Finland (1983); Germany (2000); Greece (2006); Honduras (2013); Hungary (2004); Iceland (2003); Israel (2000); Kenya (2010); Latvia (1998); Liechtenstein (2008); Luxembourg (2008); Malta (2014); Netherlands (2007); New Zealand (2007); Norway (1987); Poland (2010); Portugal (2007); Republic of Moldova (2008); Romania (2004); South Sudan (2011); Spain (2007); Sweden (1979); Togo (2007); Tunisia (2010); Turkmenistan (2002); TYFR Macedonia (2013); Ukraine (2004); Uruguay (2007); and Venezuela (2007). Corporal punishment is prohibited in Italy (1996) and Nepal (2005) by Supreme Court ruling (but not legislation) (GIEACPC, 2014).

Within these countries, the process of abolishing all corporal punishment typically began by legislating against the use of corporal punishment in schools. This was followed by the removal of the parental defence of "lawful correction" or "reasonable chastisement" from relevant criminal codes and finally the introduction of explicit bans on the use of corporal punishment in relevant civil codes (see GIEACPC, 2008 for an overview). A number of other countries have partially abolished the use of corporal punishment in one or more settings and have expressed a commitment to enacting full prohibition (see GIEACPC, 2012).

While there has been considerable progress made across Australian states and territories to ban the use of corporal punishment across settings such as schools, early education and childcare settings, public-sector institutions, residential care facilities and juvenile justice institutions, the Australian Government currently has no plans to prohibit all forms of corporal punishment (Attorney-General's Department, c. 2012).

Conclusion

The issue of corporal punishment is contentious. Some groups advocate for the abolition of corporal punishment, arguing that it is damaging to children and a violation of children's rights. Others argue in favour of retaining the right to use corporal punishment as a form of disciplining children. A third group - which generally takes the view that there are better or alternatives to smacking - has raised concerns that banning corporal punishment could criminalise parents and, in the process, overburden the child protection system with reports of parents who have smacked their children.

Research findings regarding the damaging effects for children of corporal punishment have been critiqued for methodological reasons. However, the research is clear that there is limited evidence to support any positive outcomes associated with corporal punishment and that there are other more preferable techniques for disciplining children.

Further reading

For more information on the issue of corporal punishment, see:

References

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Acknowledgements

This paper was updated by Veronica Meredith, a research officer for Child Family Community Information Exchange at the Australian Institute of Family Studies. 

Previous versions were authored by Prue Holzer and Alister Lamont.

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CFCA Resource Sheet
Published by the Australian Institute of Family Studies, March 2014.
Last updated March 2014

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