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

By Patmalar Ambikapathy Thuraisingham - posted Tuesday, 4 January 2011


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.

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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.

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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.

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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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