Queensland law provides that it is illegal to strike, harm or otherwise cause pain to another person. A person doing this would be guilty of an assault.
This would seem to make it illegal for a parent or guardian in Queensland to smack a child.
However the situation is not that simple as the law provides a defence or exemption for certain people but only if the physical discipline used was reasonable in all the circumstances.
The Law
It is important to remember that there is no separate charge of unreasonably disciplining your child, if you are charged it will be for an assault and the type of assault charge will be determined by the injuries suffered by the child.
The definition of an assault is where a person strikes, touches, moves, or otherwise applies force of any kind to another person, directly or indirectly, without the other person’s consent or threatens to apply force of any kind to another provided that the person making the attempt or threat has the ability to carry it out. As you can see the definition of assault is wide enough that you can be charged with assault merely by threatening an assault. The law is contained in the Criminal Code (Qld).
Are there different types of assaults?
There are a number of different types of assault charges in Queensland but the most common are;
Common Assault
Common assault is the most frequent assault charge that the Queensland Court hear. Generally a person will be charged with common assault where the person assaulted has only minor injuries or no injuries at all. The maximum penalty is a term of imprisonment for 3 years and is dealt with in the Magistrates Court.
We have a dedicated common assault page
Assault occasioning bodily harm
An assault occasioning bodily harm occurs where the person assaulted has suffered injuries that fall within the definition of bodily harm. In Queensland “Bodily harm” means any injury which interferes with health or comfort. The maximum sentence for assault occasioning bodily harm is 7 years.
The matter is dealt with in either the Magistrates Court or the District Court. We have a dedicated assault occasioning bodily harm page.
Under the assault laws it would be illegal to smack your child no matter the circumstances. However Section 280 of the Criminal Code provides the following exemption to allow parents to physically discipline their children. The law provides that;
It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to use, by way of correction, discipline, management or control, towards a child or pupil, under the person’s care such force as is reasonable under the circumstances.
What are the key points of the defence or exemption on smacking children?
The key points for the exemption are as follows;
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It applies to parents or a person in the place of a parent (as well as schoolteacher)
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The force must be used for the correction, discipline, management or control, of a child
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The child must be under the persons care at the time
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The force must be reasonable in the circumstances
Let’s look in more detail at those keys elements.
A child – Means someone under 18 years of age.
Correction, discipline, management or control – These are the only allowed reasons to use physical force on a child. Smacking a child out of frustration or anger unless it is for correction, discipline, management or control is not allowed. Force can only be used when disciplining the child.
Reasonable force – The amount of force used must be reasonable in all the circumstances. There is no definition of reasonable in the legislation. It is also important to note that it is not up to the parent to show the force was reasonable it is up to the prosecutor to show the force was unreasonable in all the circumstances. How is reasonable force judged? That would be up to the jury or magistrate to decide based on the common definition of “reasonable” but some factors might include;
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What level of force was used?
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What non physical discipline was used first before physical force was needed?
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Did the force result in injuries?
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What was child was doing that needed physical force to be used to discipline them?
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How old is the child?
What defences might I have if charged with assault because I smacked my child?
The defences would be the same as any assault charge plus that the force used was reasonable in all the circumstances.
What if my “child” is over 18 years old?
If you use physical force on your “child” when they are over 18 then the exemption does not apply and you could be charged with assault.
Which Court would hear the charge?
It all depends on the type of assault charge you are charged with. If it is common assault then the Magistrates court will hear the charge. If it is ror assault occasioning bodily harm then you can choose the Magistrates or District Court to hear the charge. If it is a charge of grievous bodily harm then the District Court will hear the charge.
Can the charge be withdrawn?
Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the force was reasonable and therefore the charge should be withdrawn.
Will I get a criminal conviction if I plead guilty to the charge?
The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge.
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What should I do if the police want to talk to me or charge me with smacking my child?
You need immediate legal advice from an experienced criminal defence lawyer. Saying the wrong thing to the police can assure you will be convicted of the offence or receive a more serious penalty. There are things you can do to protect your interests and rights or minimise the penalty if you plead guilty, a lawyer will be able explain what exactly you need to do or shouldn’t do.
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