Published by Geoff Harrison | 18 July 2023
The defence of lawful correction is available in certain circumstances where physical force is applied to a child (ie. under 18 years of age) for the purpose of punishment. The defence is set out in s61AA of the Crimes Act 1900 (see below). The fall within the ambit of this defence, the force applied must be:
for the purpose of punishment,
by a parent or person acting for a parent; and
the application of the force was reasonable having regard to the age, health, maturity and other characteristics of the child and the nature of the misbehaviour.
The force is not reasonable, if it is applied to the head or neck of the child unless the force could be considered trivial or negligible.
The force used must not be likely to cause harm that lasts for more than a short period.
CRIMES ACT 1900 - SECT 61AA
61AA DEFENCE OF LAWFUL CORRECTION
(1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if--
(a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
(2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied--
(a) to any part of the head or neck of the child, or
(b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.
(3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable.
(4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction).
(5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment.
(6) In this section--
"child" means a person under 18 years of age.
"parent" of a child means a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children.
"a person acting for a parent" of a child means a person--
(i) is a step-parent of the child, a de facto partner of a parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and
(ii) is authorised by a parent of the child to use physical force to punish the child, or
(b) who, in the case of a child who is an Aboriginal or Torres Strait Islander (within the meaning of the Children and Young Persons (Care and Protection) Act 1998 ), is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child.
Note: "De facto partner" is defined in section 21C of the Interpretation Act 1987.
(7) This section does not apply to proceedings arising out of an application of physical force to a child if the application of that force occurred before the commencement of this section.
(8) The Attorney General is to review this section to determine whether its provisions continue to be appropriate for securing the policy objectives of the section. The review is to be undertaken as soon as possible after the period of 3 years from the commencement of this section. A report on the outcome of the review is to be tabled in each House of Parliament within 6 months after the end of the period of 3 years.