A comparative legal study of corporal punishment and tri-nation law reform

Abstract

Since 1979 when Sweden became the first country to ban corporal punishment, there has been a steady increase in the number of countries prohibiting physical force as a disciplinary measure against children. To date, sixty-three countries have banned the use of corporal punishment in all settings (schools, foster care, child-care, penal institutions, and the home). South Africa and New Zealand have also joined the list of countries to prohibit the use of corporal punishment against children for purposes of correction. However, Australia has yet to join this list. In Australia, corporal punishment is permitted in the home and other specific settings. This thesis presents a comparative legal study of corporal punishment and law-reform strategies in South Africa, New Zealand, and Australia. The focal points of this study are, first, to analyse the three principles that dominate the corporal punishment discourse: the best interests of the child; the right to equal protection under the law; and the right to freedom of religion. The second focal point is to determine what law-reform process would be viable in Australia, a federal state made up of eight states and territories, in the pursuit of excluding the defence of reasonable chastisement to a charge of common assault. The defence of reasonable chastisement is a common-law defence to a charge of common assault available to parents in Australia, and prior to 2019 and 2007 respectively, also available to parents in South Africa and New Zealand. South Africa banned corporal punishment in 2019 through public interest litigation and judicial condemnation, while New Zealand used its parliamentary processes to outlaw the use of physical force against children in 2007. This study analyses these two methods of law reform to establish which is the more viable for Australia given its federal constitutional dispensation. The study makes several recommendations that Australia should implement to eradicate corporal punishment once the defence of reasonable chastisement has been prohibited.