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Lawyers slap down a ban on smacking

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A zero-tolerance approach to smacking by outlawing corporal punishment would be doomed to fail, according to Canberra's legal fraternity.

The physical discipline debate resurfaced on Friday after a leading group of doctors from Australia and New Zealand called to make it a criminal offence for parents to smack their children.

The Royal Australasian College of Physicians wants a legal amendment to give children the same protection from assault as others in the community.

Australian parents can legally discipline their children by corporal punishment as long as it is reasonable and can argue ''lawful chastisement'' if charged with assault.

But lawyers say the defence does not give parents a licence to beat children.

Criminal lawyer Michael Kukulies-Smith, of Kamy Saeedi Lawyers, said it was not a static defence.


''It's a test in reference to social standards and norms, [so] the test that was applied in 1950 is not the test applied today,'' Mr Kukulies-Smith said.

''What would have been considered acceptable then is most definitely not considered acceptable by the courts today.

''It's an evolving thing as attitudes to violence in general and lawful chastisement have changed.''

Mr Kukulies-Smith said criminalising behaviour was a blunt instrument to effect behavioral change, and zero-tolerance approaches had a history of failing.

He said there were better ways for smacking to be addressed than through the criminal justice system.

''Lawful chastisement [cases] quite often end up with magistrates describing it as a lose-lose situation because children are put through the court process as witnesses and the parents are dragged through as the defendant over what, in most cases, are relatively isolated occurrences,'' he said.

Defence lawyer Ben Aulich, of Ben Aulich and Associates, said that while he did not smack his own children, parents should be allowed to choose a form a discipline within the law.

''The law does not need to change as there is adequate scope to deal with parents who overstep the mark,'' Mr Aulich said.

ACT Attorney-General Simon Corbell said a smacking ban had been discussed by government but a change to legislation was not expected in the near future.

''My view is there should not be a rush to legislation on this,'' Mr Corbell said.

''This is a complex debate and there are, I think, legitimate issues to be addressed on both sides. I think it's worthy of a public debate but there should not be a rush to legislation.''

Mr Corbell said the Children and Young People Commissioner, Alasdair Roy, had previously raised the issue, adding there were conceptual inconsistencies in the way the law operated.

ACT Chief Minister Katy Gallagher said any future legislation would be hard to enforce but would effectively set a standard for behaviour.

''I'm a supporter of occasionally using legislation to that effect,'' she said.

''I think the big issue is how you would enforce it.''

Ms Gallagher, who was speaking on ABC Radio, outlined her experiences as a mother, admitting that she had smacked her children in the past.

''I can probably count it on one hand and I felt terrible after it,'' she said.

''Sometimes it was for their own safety … but there have been times I've done it out of anger and I've just felt awful afterwards.''