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

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.

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.

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.