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In early 2007 Wells was reported in the national (and fragments of the international) media as wanting to make it illegal for parents to smack their children. Actually he was arguing that our present law allowed bad parents and carers to inflict physical abuse on their children, and the law needed changing. While not in favour of corporal punishment, Wells does not think the law should criminalize parents and carers who smack their children. Rather he thinks it should criminalize those who commit serious assaults on their children but are now protected in all states of Australia. _______________________________________________________________________________

Edited version of public lecture,
Queensland University of Technology Law School
Dean Wells – 30 April 2008

Reasonable Assault

I acknowledge the traditional owners and I thank the Minister for Police and the Attorney-General, who asked their departments to provide me with some of the information which I am going to put before you today.

It is lawful in Queensland for citizens to use force, including lethal force, against their fellow citizens in a variety of circumstances. Of these the best known is self defence. Under s31(c) of the Criminal Code you are not criminally responsible for an act which is “reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence.” Another set of circumstances in which you are entitled to use force is outlined in s280 of the Criminal Code.

“s280 Domestic Discipline

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.”

So this is the law of Queensland. If your partner puts a brick through the windscreen of your car and in order to teach them a lesson you calmly you take an implement and give them a good hiding, leaving bruises on their body, you will be charged with assault occasioning bodily harm and sentenced to a maximum of seven years’ imprisonment under s339 of the Criminal Code. In the absence of a prison sentence you will very likely have a Domestic Violence Order taken out against you. If on the other hand your child does exactly the same thing and you respond in exactly the same way, you will not be charged by virtue of the fact that s280 provides you with complete protection.

Before anyone objects “Oh no, they’d never get away with that – lots of parents get charged for assault under our present law” I would ask them to take seriously the parameters of the example. The parent is calm but determined. They are not in their own minds assaulting the child but punishing the child. The child’s transgression was severe and costly to the family. Any parent, whether they believed in physical punishment or not, would regard it as an act that should have consequences. The child suffers bruises, but not because the parent set out to injure them – they were purely incidental to the task of giving the kid a good hiding, which the parent in the example sincerely believes that they deserve. The parent chose to administer a good hiding rather than a mere smack because that was what was proportional to the offence. A mere smack is what this parent administers for merely giving cheek. This parent sincerely believes that the child needs to understand the gravity of their offence. If you are on a jury and you are instructed to assume that the use of force against a child can be reasonable, then likely you will think this is reasonable force. But don’t do it to your partner: that’s a crime.

Changing the scenario a little, imagine the extremely unlikely but possible circumstance in which your attack on your partner causes him or her as the case may be, to go into shock, or they suffer some other complication, and as a result die. In these circumstances you will be charged with manslaughter and under s310 of the Criminal Code you will be liable to a maximum sentence of imprisonment for life. If however you were to do exactly the same thing in exactly the same circumstances to your child, you would not be charged with manslaughter, and if you were charged with manslaughter, because the police couldn’t believe that the law was so stupid that you would be able to walk away, the judge would have to direct the jury that unless they came to the conclusion that the force was unreasonable (and in our example, if using force against children is ever reasonable, this would have to be) in all the circumstances they would have to enter a verdict of not guilty. Thus our law puts a higher value on the life of my partner than it places on the life of my daughter.

This is not just the law of Queensland. This is the law of most of the rest of Australia, excluding New South Wales, and it used to be the law of New Zealand until last year. The leading case in this area is the case of R v Terry 1955 VLR114 (page 115). Terry was charged with murder, or in the alternative manslaughter in respect of the killing of a baby of nineteen months of age. The defendant pleaded reasonable chastisement, with a domestic discipline defence. In that case the judge advised the jury that the degree of force used could not possibly be reasonable given the age of the baby, and that the applicability of the defence has to be judged in relation to “the age, physique and mentality of the child”. But though in this case the judge firmly expressed the view that the baby was too young to justify the degree of force used and thus excuse the killing, he was clear that this was only a matter for the jury. He said “If you were in this case to come to the conclusion that the accused did no more than administer such lawful correction as was reasonable in all the circumstances, and that death unfortunately resulted, the death would be excusable; but I tell you at once that, in my opinion, if you once come to the conclusion that the accused brought about the death, there can be no doubt whatever that his actions exceeded anything that could possibly be regarded as lawful correction to a baby of nineteen months of age.”

Having established that the 280 defence is available to protect people from charges of homicide, let us explore what other nasty behaviour it will excuse. In the Queensland case of Byrne v Hebden (1913) St R QD233. A headmaster was giving the cuts to an eight year old child. She told him that she was going to tell on him when she went home. Apparently this did not please him and he gave her a number of additional applications of the cane to a variety of different parts of her body, leaving bruising and welts. This was held by the court to be reasonable. You might recall that s280 was used this year by a teacher as a defence in the Gold Coast case of Police v Ransfield, which was decided at Southport Magistrates’ Court on 14 February this year. I note though that it is not clear that the evidence discloses anything more than a common assault, and this does not appear to be a case of s280 being used as justification for a child being injured.

A rather unpleasant case is Bresnehan v R 1992 1 Tas R 234. This case involved multiple charges of ill treatment of a child and assault against all four of Bresnehan’s children. The children were said to have engaged in multiple forms of misbehaviour including bed wetting, smoking, damaging family property, and playing with gunpowder. It was also alleged that the parents tied a child in a shed with a dog chain, and stung the children with cattle prods. Multiple allegations were made against Bresnehan and his wife of kicking the children, beating them with shearing belts, hearth brushes, stock whips and dog leads, as well as forcing them to eat highly peppered food, forcing them to smoke cigars and to eat the cigar butts, and holding one child’s face over a mug of loose gunpowder and igniting the gunpowder. The parents pleaded the Tasmanian equivalent of s280. They were acquitted on all counts of assault, but Bresnehan was found guilty on one count of ill treatment and was sentenced to twelve months’ imprisonment. On appeal the sentence was reduced to ten weeks. Mitigatory weight was given by both the trial judge and the appeal judges to the fact that the father acted with a genuine belief that he was doing it for the good of the children. The Tasmania Law Reform Institute comments, “So long as the law permits physical punishment of children subject to the proviso of unreasonableness, the law will be obliged to give such genuine beliefs mitigatory weight."1

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1 Tasmania Law Reform Institute Final Report No 4 October 2003, page 13

The fact is that so long as s280 continues to operate as a defence to anything other than common assault then the fact that reasonable force is a criterion will mean that the courts are going to have to take into account a parent’s belief that chaining children up and whipping them with horsewhips is good for them. These are dangerous and high risk punishments. Part of the function of the law is educative and aspirational. It goes against this objective of our law to have a requirement on judges to take into account the genuineness of the parents’ belief that putting their children in danger is good for them.

The cases which actually drew my attention to the need to reform this area of the law were in fact New Zealand cases. Last year New Zealand repealed its equivalent of our s280. The precursor to that had been a number of very high profile cases. They included two cases that activated powerful lobby groups which then pushed for reform. In 2002 a jury in the Napier District Court acquitted a man of assault, finding that the force was reasonable under the New Zealand equivalent of s280. The man struck his son several times on the buttocks with a piece of wood. The paediatrician stated that the injuries the boy received must have been caused by considerable force being applied. As a result of this case the Paediatric Society called for a change in the law of New Zealand. That law change occurred last year. In 2001 in the Hamilton District Court, a jury acquitted a man who struck his 12 year old daughter with a hose pipe, on the basis that the force was reasonable under the New Zealand equivalent of s280. Police photos show that the assault left the girl with a raised 15 centimetre lump across her back. This verdict was strongly criticized by Children’s Commissioner for New Zealand, who made the point that if he had done it to his wife he would have been charged, perhaps under the Domestic Violence Act.

Let us look at the extent of the problem in Queensland. Until recently statistics of charges of assault against children were kept, but statistics relating to assaults perpetrated by parents against their own children were not kept separately. As a result until now we have had no idea of the size of the problem. The Minister for Police has now made available to me indicative statistics for the first year in which an account has been kept of the number of assaults perpetrated specifically by parents against their own children. They are indicative statistics, which is to say that they may appear in a different format when published in the annual report. So in the first year in which the statistics were kept there were 699 separate charges of assault laid against parents in respect of assaults against their own children. Of these only 297 were charges of common assault. That is there were 402 charges which involved circumstances of aggravation. 388 of these were charged as serious assaults of some kind. 14 of them were charged as grievous assaults. I remind you that grievous bodily harm is defined the Criminal Code as including loss of body parts, disfigurement, and potentially life threatening injuries. The point is that s280 was available as a defence in all of these 402 cases, and not just in the cases of common assault. Indeed not only is it available to be used, it is currently frequently being used 2. Sometimes it’s used with considerable audacity. For example, in one case last year where there were multiple kinds of child abuse alleged, the defendant raised s280 as a defence to the allegations of physical abuse.

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2 Personal communication from the Attorney-General

For completeness I should mention that one of the functions of law is to send a message about the kind of society we are trying to create. Obviously it is desirable that it should be a consistent message. A law that says that in certain circumstances it is lawful to injure children, but that in exactly the same circumstances it is not lawful to injure adults, is a law which is at the very least inconsistent with the spirit of the Anti Discrimination Act. According to that Act it is unlawful to discriminate on the basis of age. That is precisely what s280 of the Criminal Code does. We are also out of step with the International Convention on the Rights of the Child. Article 19 of that convention says that all appropriate legislative measures shall be taken to protect children from all forms of physical or mental violence, injury or abuse, while in the care of parents. Clearly a law which excuses injuries to children that are not excused if they are inflicted upon adults, is a problem for any legal system that wanted to conform with that international convention.

Clearly s280 is a problem for Queensland, but it is a problem for the whole of Australia. With the possible exception of New South Wales which in recent years amended its legislation so that blows to the head were excluded from the exculpatory provisions, the law in the other states of Australia is very similar to that in Queensland. The solution is clear. We need to amend s280 so that it no longer operates as a defence to any kind of assault other than common assault. The effect of this would be to allow parents to smack their children, but not to injure them, not to inflict upon them an assault occasioning bodily harm, or grievous bodily harm. Let me be very clear about this. I am not suggesting that we make merely smacking a child a crime. I would not encourage it, but it is not something with which the law should concern itself. The law should however concern itself with protecting children from injuries, and at the moment our law does that very sub-optimally. We should not wait until we get a rash of high profile cases like the New Zealand cases that preceded the reform to this area of the law in our next door neighbour. We should have s280 on our agenda for reform, before it yields a tragedy.3

3 POSTSCRIPT On 21 June 2008 the State Conference of the Australian Labor Party (Queensland Branch) adopted a new Justice and Governance policy document. Part of that document read as follows: “Labor will review s 280 of the Criminal Code to ensure that it does not continue to provide a statutory excuse for serious, grievous, or bodily harm assaults by parents on children”.

Mr. Speaker, Such a thing would never happen, but let us say that (an honourable member of this House) walked out into the main street, ripped off his belt and started flailing into passers-by. What would happen? He would be arrested and charged with assault….On the other hand, if the same honourable member maintained his rage until after the House had adjourned and then went home, ripped off his belt and started flailing into his children, uttering by way of context some words of criticism of their recent behaviour, either he would not be charged with assault or he would have a defense to assault under section 280 of the Criminal Code, which states that it is lawful for a parent to use such force as is reasonable in the circumstances for the purposes of domestic discipline, correction, management or control.

…The harsh and morally objectionable reality of our criminal law is that a whole range of assaults, from minor slapping to painful and even injurious blows, are unlawful if perpetrated against an adult but are lawful if perpetrated against a child. Those whom society should be most concerned to protect are, in fact, most vulnerable to violence of a certain kind and are authorised by the law to be its routine victims. We have a law that permits too much violence. Section 280 of our Criminal Code has an exact parallel in section 59 of the New Zealand Crimes Act.

…In 2001, a jury in the Napier District Court acquitted a man who beat his son on the buttocks with a lump of wood. The paediatrician in the case testified that the man had used considerable force and inflicted injuries on his son. After the acquittal, the Paediatric Society called for a change in the law.

Again in 2001, the Hamilton District Court acquitted a man who had bashed his daughter with a horsewhip. The jury was shown prosecution photos of the 12-year-old girl and the raised 15 centimetre lump across her back. The jury found that the force was reasonable in the circumstances. The New Zealand Children’s Commission pointed out that if he had done it to his wife it would have been a crime. On the other hand, the defendant said that his acquittal proved that the public supported parents’ rights to discipline their children.

…Perhaps out of the mildness of their nature some honourable members might think that we should not be criminalizing parents who unacceptably assault their children and that rather we should try to understand them and educate them. If they think that, they should consider this. Law has more functions than merely regulating and punishing specified kinds of antisocial behaviour. Law also has a normative aspect; it is also a way of setting a standard of what society expects. If we have a law which provides carte blanche to parents as to how they should deal with their children, what we are doing is giving a nod and a wink to bad parents as well as providing what is actually unnecessary security to good ones. Our laws should not address merely the lowest common denominator. Our laws should inspire that action which will lead to a better society without of course actually requiring the behaviour of saints and heroes.

While section 280 is lauded by some as providing protection to parents, it is actually a section that provides protection to people who would be classed as criminals if they did it to anyone else other than their own children. I would not for one minute say that a parent did not have the right and indeed the responsibility to discipline, set boundaries, guide, train and effect the upbringing of their children without interference from the community. However, nobody has an inalienable human right to do physical or psychological harm to another person.