Firearms Lawyer Simon Munslow answers your legal questions.

Can Smacking Kids Cost You Your Firearms Licence?


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Surveys show that the majority of parents in Australia and the UK support having the option of corporal punishment in respect to punishing children over five years old (88% UK, 75% Victoria). This is in conflict with laws of the European Parliament. In Europe, corporal punishment has been banned in 13 European countries. I think most Australian parents would, quite correctly, relegate it to being a tool to be used only in the most extreme case

Even then, I would argue that there are better alternatives, such as withdrawal of privileges, as well as dangers to the parent that are posed by smacking, and that these dangers could affect your ability to possess a firearm.

Most shooters know to avoid the risk of being charged with assault regarding as it can cost them their firearms licence. Few shooters would understand that disciplining their child can lead to similar charges.

Consider for example the following.

Your teenage daughter is texting friends on her mobile telephone late at night.  You tell her to go to bed.  She does not do so.  She calls the Police and takes out an Apprehended Violence Order against you. Your daughter reports that you bruised her hand while trying to take the telephone off her and the Police charge you with assault.

Your teenage daughter is having an affair with an older man.  You are concerned that the relationship may be becoming sexual.  Discussions with your daughter get heated, she insults your partner and you strike her on the face with an open hand. 

Your son ignores a curfew and you hit him on the backside with a karate belt.  Your daughter, who no doubt plans to breach the curfew herself, calls the Police…

Each of these situations is a real one in which a shooter has been charged with assault.

What parent can say that they have never lost their temper with a child? Part of being a child is learning to test ones boundaries – and testing they can be. Children can often be very challenging.

Before being allowed to adopt my son, I was vigorously assessed by Department of Community services psychologists and social workers to ensure my stability and suitability for parenthood, and even then I have often been faced in my professional life with situations in which parents have been driven to the extreme, I have thought ‘but by the grace of God there go I’ when faced by particularly antagonistic behaviour. 

The use of corporal punishment in the home is regulated by state and territory laws, either by statute or reliance upon the common law.  See for example NSW Crimes Act 1900 s 61AA, Queensland Criminal Code 1899 s 280, Tasmanian Criminal Code 1924 s50, Western Australian Criminal Code 1913 s257, Northern Territory Criminal Code Act s 27, Australian Capital Territory relies upon the common law as does Tasmania.

The defense is contentious. In Tasmania, the Tasmanian Law Reform Institute recommended the abolition of the defense of reasonable correction from civil and criminal law, however no changes in law have yet been made.

The purpose of this article is not to compare and contrast the laws between the various states and territories but to discuss a problem.  A person charged would be well served in seeking legal advice from a practitioner in the state or territory in which they reside. As I practice primarily in NSW I will discuss the law, as it exists in NSW.

The full text of the NSW Crimes Act 1900 s61AA has been pasted below, but from reviewing the authorities, the following principles are apparent.

A. Parents considering use of corporal punishment against their children should never do so in the heat of the moment, where the act may be interpreted as an act of parental oppression rather than correction.

B. A child should never be humiliated by smacking them on their bare buttocks.

C. No more than reasonable force should be used having regard to the physical and mental characteristics of the child, what the child did and other circumstances.  As the ‘reasonable’ word in a legal context always causes the public problems, I note that the force used would be unlikely to be considered reasonable if it involved striking the child on the head or above the shoulders or resulted in bruising or lacerations.

D. It is desirable that parents undertake a degree of research into alternatives to corporal punishment. 

Sadly many parents do not realise that the approach to the law by government has changed since they ‘wore’ dad’s shaving stop or were caned at school, and that this can have disastrous consequences.

My personal view, for what it is worth, is that a parent is better placed parenting by example, encouraging good behavior and when correction of bad behavior is required, by paying regard to the child’s most valued ‘currency’ and removing it – be it access to the Internet, a bicycle or surfboard.

 

NSW Crimes Act 1900 s61AA

61AA(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 misbehavior 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 less than 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.

“Person acting for a parent” of a child means a person:

(a) Who:

(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 YoungPersons (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 Act1987.

(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.

 

 


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