Smack debate: Parents need to be able to parent

Domestic discipline, such a smack, should be the exception, not the norm, but it does have a place in parenting, argues former police officer and criminologist Terry Goldsworthy. HAVE YOUR SAY

Criminologist Dr Terry Goldsworthy. Picture: NIGEL HALLETT.

In 2023 the former Labor government tasked the Queensland Law Reform Commission to examine and make recommendations around particular criminal defences in the Criminal Code, including domestic discipline.

Throughout Australia all jurisdictions have a domestic discipline defence, either in their criminal legislation or under the common law, as do the United Kingdom and Canada.

Domestic discipline is contained in section 280 of the Criminal Code. It essentially allows the use of force to correct, discipline, manage or control a child by a parent or a person in the place of a parent, such as a teacher. The section operates to excuse and make lawful the use of force in such instances. The force must be reasonable, and the force must be used for one of the purposes set out in the section.

That seems a reasonable proposition on the face of it. Yet, we have seen claims in the media from health and welfare experts that “smacking children should be against the law because it is akin to beating wives and slaves”. Such comments are inflammatory and bordering on hyperbole.

The QLRC proposes to ban the use of corporal punishment that injures a child; the use of implements such as wooden spoons or belts; or force applied to a child’s head, face or neck. In my time as a Detective Senior Sergeant in charge of a child protection unit these were exactly the type of red flags we looked for to establish if a use of force was not reasonable.

In determining what is reasonable police will look at the type of force applied, for example the use of implements. To what part of the body was the force applied and how much force was applied. An open-handed smack is vastly different to a punch or kick.

Any reform to the criminal justice system must be based on demonstrating failings of the current arrangements, that has not yet been shown and was certainly not shown in a 2008 review.

In 2008 the Department of Justice and Attorney- General conducted a review of the use of this defence. It looked at offences where individuals were charged with parent/child assault in excessive discipline matters. In these matters 98 per cent were found guilty. The review “failed to reveal any evidence that section 280 is relied on to any significant degree or that it is impacting on the ability to charge or prosecute parents”.

The QLRC conducted surveys into community attitudes around domestic discipline. It found strong support for a teacher’s ability to use force for the purpose of management or control, but not for discipline or correction. We already have restrictions on the section’s application in care facilities for children, youth detention centres and early childhood and care services. Corporal punishment is prohibited in government schools.

In terms of parental discipline, the QLRC used the scenario of a mother laying hands on a child who refused to surrender her mobile phone at 8pm in line with family rules laid down. The child also swore at the parents. Community support sat at about 64 per cent for the mother not facing a criminal sanction.

Who as a parent has not experienced the tantrum of young child, who is not conducive to having a reason-based argument put to them? Of course, the context of each interaction is crucial.

Domestic discipline should be the exception, not the norm, but it does have a place in parenting.

The QLRC has put forward two options for reform in its consultation paper, the first would remove the defence in its entirety. This would be a mistake.

The second would limit the application of the defence to common assault matters. It would be difficult to imagine that a properly instructed jury would not consider force and harm amounting to more than common assault to be unreasonable anyway.

This option would also provide legislative guidance as to what reasonable force is. This would seem to suggest that judges and juries are incapable of deciding this for themselves using current guidelines.

The QLRC has yet to produce any data to show that the use of the defence is problematic in criminal cases.

We need to let parents make decisions around how their children are brought up. Weighing against this is the need to protect children against harm. This is a difficult balance to achieve, but I am not convinced that criminalising a parent giving a child smack to moderate poor behaviour is the direction in we should be moving.