Lawful Correction in NSW

Lawful correction is a legal defence available under NSW law that allows a parent or person responsible for a child’s care to use reasonable physical force for the purpose of discipline.

The defence applies only in limited circumstances and is governed by section 61AA of the Crimes Act 1900 (NSW).

It does not give a general right to physically punish a child. Instead, it provides a narrow exception to assault laws where strict conditions are met.

Who can rely on the defence of lawful correction?

Section 61AA(1) of the Crimes Act 1900 (NSW) provides that:

(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 purposes of punishment, but only if –

• a. The physical force was applied by a parent of the child or by a person acting as 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 misbehaviour or other circumstances.

The defence of lawful correction may be available to:

• A parent of the child meaning ‘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”: s 61AA(6).
• A person acting in place of a parent (such as a guardian) meaning a person who:
  • ‘is a step-parent of the child, a de factor 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
  • Is authorised by the parent of the child to use physical force to punish the child’: s 61AA(6).
• A person who, in the case of a child who is an Aboriginal or Torres Strait Islander 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: s 61AA(6).

What makes physical correction ‘lawful’?

For the physical correction to be considered lawful in NSW, all of the following must apply:

1. The child is under the age of 18 years – this is because this defence only applies to the persons who are children at the time of the lawful correction,
2. The force used must be for the purposes of correction – the purpose of the discipline must be for the correction of the behaviour of a child. You will be unable to rely upon a defence of this nature if you have acted out of anger, frustration or retaliation. If the force applied to the child occurred as a result of an emotional reaction or response, the defence is unlikely to succeed.
3. The force applied to the child must be reasonable in the circumstances – This involves an assessment of whether the level of force applied is proportionate to the need for correction, having regard to the age, health, maturity, other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. The law specifically states that, unless that force is considered trivial or negligible in the circumstances, it is not reasonable to apply force to the head or neck area of the child or to any other part of the body of a child in such a way as to be likely to cause harm to the child that lasts for more than a short period.

What is not permitted to form a defence of lawful correction?

Section 61AA(2) of the Crimes Act specifically prohibits certain conduct, regardless of the intent of the parent or guardian. Unless it can be established that the force may be reasonably considered as trivial or negligible in the circumstances, it is generally not permitted to:

• Apply force to the head or neck area,
• Apply force to the child which causes or is likely to cause harm lasting more than a short period of time, or
• Force applied to a very young child.

Generally, any conduct falling into these categories will not be protected by the lawful correction defence.

Does lawful correction apply to allegations of assault?

Yes. The defence of lawful correction is raised as a defence to assault-related charges involving a child. However, raising the defence does not guarantee success. The Court will carefully scrutinise:

• The nature and extent of the force used,
• Any medical or photographic evidence,
• Statements from the child and other witnesses,
• Your account, and
• The surrounding circumstances.

If the court is of the view that the force exceeded what was reasonable, the defence will likely fail.

An example of a case whereby the defence of lawful correction was unsuccessfully raised by the Appellant can be seen in the matter of R v WM [2020] NSWDC 714. In this case, the Appellant was charged with having assaulted his 6-year-old biological son. The crux of the charge was that the defendant kicked the six-year-old in the leg above the knee. He told the Police that it did not hurt anymore but the child commented that it hurt when he was kicked. The defendant participated in an interview and denied kicking the child, however, said in court that he did or might have kicked the child.

In the Local Court proceedings, the child’s mother gave evidence that on 31 July 2019, she and the Appellant were having an argument in the presence of the child. At some stage in the argument, the child intervened and said something like, “don’t talk to mummy like that”. The child’s mother was positioned on the other side of the counter in the kitchen area, and when she walked around it, she saw the defendant having kicked the child in the leg. Later in the mother’s evidence, she told the court that after the police left, the child had told her that he had kicked his father first, but she did not see that.

The child’s mother told the Court that, as a result of the kick, she observed redness to the child’s upper leg near the knee area. She took a photograph and this photograph was tendered into evidence. She told the Appellant that he should apologise to the child and when he refused, she told him that she was going to call the Police, which she did.

The Appellant told the Court that he was arguing with the child’s mother, in the kitchen area when the child attempted to kick him. He provided evidence that he felt immediate fear and “used his leg to change his direction”. He said that he felt fear because in the past (about 20 days prior), the mother had held the child’s foot and kicked him in the face with it, causing bleeding. Therefore, he concluded that his action in responding to the child’s kick was self-defence.

He also told the Court that he did not kick the child, and if he did it was accidental as he was turning to protect himself. He said that the child kicked him first and he could not run away, so he just turned around.

In this case, it was found that the physical force was applied by a parent. The Appellant was pressing his case on the basis that the contact or force applied was by way of punishment. In the Local Court proceedings, he also suggested that this was the form of punishment previously agreed upon with the child’s mother. The child’s mother denied that this was ever the case.

It was found by the Court that:

“The Appellant seems to be submitting that the kick, which he concedes, at least for the purpose of this argument was reasonable by way of lawful correction. However having regard to the age and state of maturity of the child and the nature of the alleged misbehaviour or other circumstances it is difficult to understand in what circumstances kicking a 6 year old child in the leg, even if the child kicked first could be seen as reasonable. The undisputed facts are that the Appellant was angry and shouting at IP. The child objected to the shouting directed at the mother, and may have lashed out himself. A kick to a child’s leg by an adult is not reasonable punishment. The action as described by the witness was a lashing out in anger. There is no evidence, even from the Appellant that it was accompanied by any form of education or explanation as to behaviour, which even if physical punishment or force was called for, would be a requirement for physical parental control to be found reasonable.

The proposition that kicking a six-year-old child, even if that child is behaving inappropriately be viewed as lawful correction is such a bizarre proposition that I have no difficulty rejecting it, as the Magistrate did. Many options available to the appellant were in order to correct the child without resorting to physical force”.

It was therefore found, beyond reasonable doubt, that the Appellant did raise his leg and kick the child in the leg. It was further found that the kick was hard enough to cause immediate pain which lasted for a number of minutes. It was not accepted by the Court that the kick was accidental. Instead, it was found that the kick occurred because the Appellant was angry with the child’s mother and was angry that the child had intervened. That the behaviour of the Appellant had nothing to do with the lawful punishment or correction of a misbehaviour of the child.

This case is perhaps a useful example of the consequences which failing to obtain early legal intervention. The Appellant participated in a range of interviews with the Police where he initially maintained that he did not engage in any physical act towards the child for the purposes of lawfully correcting that child’s misbehaviour. Then, when the matter reached a hearing, he provided a differing account where he sought to rely upon the defence of lawful correction.

It was ultimately found that his differing accounts did not amount to lawful correction. That he was merely acting in response or retaliation to the conduct of the mother. It was found that the conduct which he engaged in was not a reasonable response to the conduct of a six-year-old child. There was no evidence that he attempted to explain the punishment to the child.

It’s critical that, if you are faced with a similar situation, that you consult with an experienced criminal defence lawyer to understand whether the defence is available to you and, if so, to prepare a strong defence strategy.

Lawful correction and domestic violence allegations

Allegations involving children may also intersect with domestic violence laws, including:

• Police involvement
• Apprehended Domestic Violence Orders (ADVOs)
• Child protection investigations

Even where lawful correction is claimed, police may still lay charges and seek interim orders. These matters often progress quickly and require careful legal management.

What happens if Police do not accept my explanation of lawful correction?

If police form the view that the force used was excessive or unlawful, they may:

• Lay assault charges
• Commence court proceedings
• Involve child protection authorities
• Apply for AVOs

Once charges are laid, the issue of lawful correction is determined by the court, not police.

Why Legal Advice Is Essential

Lawful correction cases are fact-sensitive and legally complex. Small details can significantly affect the outcome.

An experienced criminal defence lawyer can:

• Assess whether the defence is realistically available
• Advise on police interviews and statements
• Analyse medical and other evidence
• Prepare a strong defence strategy
• Represent you in court proceedings

Early advice is particularly important, as decisions made in the initial stages can influence both criminal and family law outcomes.