In South Australia, the intentional application of physical force on a child, without their consent, is an assault [Criminal Law Consolidation Act 1935 (SA) s 20]. It is also an assault to threaten to apply force. A parent or person in loco parentis (in the place of a parent) who hits, smacks, slaps, spanks, or otherwise applies force to their child or the child of another, or threatens to do so, commits a criminal offence.

The offence will be aggravated and attract a higher penalty if the victim is the child of the person who has applied force, or if the child is younger than 12, or if a weapon is used [s 5AA].

As well as being a criminal offence, assaulting a child may also give rise to civil liability and the child may be entitled to compensation for pain and medical expenses.

Reasonable chastisement

A defence may be available if the parent or guardian can establish that force was applied to their child for the purpose of correcting behaviour or punishing wrongdoing.

The common law permits parents and persons in loco parentis to administer moderate and reasonable physical punishment to children in their care [see for example Police v G, DM [2016] SASC 39].

To rely on this defence, force must have been applied for the purpose of correcting behaviour and not out of rage or malice or for personal gratification [Police v G, DM [2016] SASC 39 at [40] – [46]]. Evidence of the previous relationship between the parent and the child may be relevant to determine the true motive. Whether the physical punishment was accompanied by some form of education or explanation as to appropriate behaviour may also help demonstrate that it was intended to be corrective [R v WM [2020] NSWDC 714 at [30]].

Whether a particular application of force by a parent is moderate and reasonable will always depend on the circumstances of the case. There are a range of factors that can help determine whether a particular disciplinary act was reasonable in the circumstances.

The age of the child

The child must be old enough to understand the purpose of the corrective act, and the physical punishment must be reasonable for a child of that age. It is unlikely that physical punishment of a very young child or infant will be considered reasonable. Similarly, a child who is close to 18 may be considered too old for physical correction [Police v G, DM [2016] SASC 39 at [51] – [54]].

The size and health of the child

The reasonableness of a physical punishment may also depend on the size, health and cognitive ability of the child. A harder hit to a small, light-framed or frail child, or a child in poor health or with disability, may be more likely to injure and may be more difficult to justify. A child with learning or cognitive disability may not appreciate the purpose for the punishment.

The nature of the physical punishment

Whether a corrective physical punishment is moderate and reasonable will depend on its nature and severity. The type of physical acts involved, the level of force used, the pain inflicted, the number of blows administered, the parts of the body subjected to the punishment, the use of an instrument or weapon, and the resulting injury to the child are all relevant considerations. Case law suggests that more severe or long-lasting punishment may not only be found to be unreasonable, but may also be harder to justify as genuinely for a corrective purpose [Police v G, DM [2016] SASC 39 at [41]].

Community standards

The reasonableness of an act will always be considered in light of current community standards and not the standards or beliefs of a particular person or community, religious or ethnic group.

Tolerance for violence against particular members of the community such as women and children has shifted significantly over the past few decades in Australia. There is also a growing body of research that suggests that physical punishment is not an effective method of correcting behaviour and can in fact cause children long-term harm.

There are many resources available for those seeking guidance to correct their children’s behaviour. The Commissioner for Children and Young People has released a factsheet about smacking and physical punishment that includes alternatives to physical punishment for a range of behaviours.

Further information and support services can be found through the Adults Supporting Kids website.

For punishment by a teacher, see School Discipline.

There is no law that says how old a child must be to babysit. Parents are expected to make their own decisions and in doing so the only guidance the law provides is that they make make reasonable decisions about their children’s safety.

What is reasonable will depend on:

What the law does say about parent’s responsibilities towards children

Who is responsible if a child under 18 is babysitting and something goes wrong?

Where a child under the age of 18 is left to babysit and the issue of negligence or liability arises, it is likely that the parent or parents of the children being babysat will be held liable for the carer in addition to the children being cared for. Where a child under the age of 18 is left in charge of younger children, they will not be judged by the same standards as an adult.

There are a number of questions parents need to ask themselves before deciding whether to allow older children to babysit younger children and excellent resources are located on the Parenting SA website including a guide called Home Alone.

The courts, whether the Youth Court or the Federal Circuit and Family Court, will decide matters concerning where children and young people live and in whose care, guided by the best interests of the child or young person and principally the need to protect them from harm. Each case depends on its facts - especially on the attitudes of the parents, the maturity of the child, and such factors as satisfactory accommodation, education or employment and a lifestyle that the authorities regard as reasonable.

If a child or young person leaves home and their parent or guardian does not hear from them or know their whereabouts, they should file a missing persons report with police.

If a parent or guardian is concerned about a child or young person leaving home to live elsewhere, causing them to be at risk of harm, those concerns should be reported to the Department for Child Protection. See Notification.

A child or young person who has no fixed address or has been absent from school without satisfactory explanation is considered 'at risk' for the purposes of the Children and Young People (Safety) Act 2017 (SA) [see s 18(1)(e) and (f)] and the Department for Child Protection has the power to investigate such reports, as well as any other reports suggesting a child or young person is at risk of harm. See Children and young people at risk.

The Department may intervene or take other measures to protect the child or young person. See Intervention Orders and Child Protection Restraining Orders and Notices.

The South Australian Public Health (Early Childhood Services and Immunisation) Amendment Act 2020 commenced on 7 August 2020.

The amending Act has inserted new provisions (Part 12A) to the South Australian Public Health Act 2011 (SA), to prohibit enrolment and providing early childhood services where immunisation requirements not met.

The parent or legal guardian must supply the early childhood service with the approved immunisation records for their child.

Definition of early childhood services

Childcare, family day care, pre-school, occasional care, kindergarten and early learning centre services are an early childhood service for the purposes of the Act.

Section 96A of the Act defines an early childhood service as a service for the education or care (or both) of a child under the age of 6 years, excluding the following services:

Enrolment

A person who provides an early childhood service must not enrol a child for the provision of the service unless:

Section 96B(1) of the South Australian Public Health Act 2011 (SA) states that he parent or guardian of a child that is enrolled, or attends at premises for the purposes of the provision of an early childhood service, must provide immunisation records relating to the child to the provider of the service in accordance with the requirements of the Chief Public Health Officer.

A child will meet the immunisation requirements, if the child meets the immunisation requirements within the meaning of the A New Tax System (Family Assistance) Act 1999 of the Commonwealth (subject to any prescribed modifications).

The maximum penalty is a $30 000 fine for a person who breaches the prohibition.

It is however a defence to a charge of an offence under this section relating to the enrolment of a child to prove that the defendant relied in good faith on immunisation records (or purported immunisation records) provided to the defendant in accordance with section 96B(1) indicating that the immunisation status of the child was up to date.

Providing early childhood services

A person must also not provide an early childhood service for a child unless:

The maximum penalty is a $30 000 fine for a person who is found to breach this prohibition.

It is a defence to a charge of an offence under this section relating to a child to prove that the defendant relied in good faith on immunisation records (or purported immunisation records) provided to the defendant in accordance with section 96B(1) indicating that the immunisation status of the child was up to date.

Exemptions

Section 96E of the South Australian Public Health Act 2011 (SA), provides the Chief Public Health Officer with discretionary powers to provide written exemptions to the above prohibitions, and can revoke or vary such exemptions.

It is an offence for a person to contravene, or fail to comply with a condition of an exemption, with a maximum penalty of $30 000.

Please visit the SA Health website here for further information on immunisation requirements and when an exemption may apply [link opens in a new window].

Child Care Subsidy – Centrelink

A New Tax System (Family Assistance) Act 1999 (Cth) provides that a person is not eligible to receive the Child Care Subsidy in relation to a child who does not meet the immunisation requirements [ss 6, 85BA]. A child can ‘meet the immunisation requirements’ through certain exemptions under this Act – both for the purposes of the Child Care Subsidy and the South Australian Public Health Act 2011 (SA). The exemptions include [s 6]:

An exemption due to medical contraindication is quite limited and is not subject to the broad discretion of the medical professional (see, for example, Huikeshoven v Secretary, Department of Education, Skills and Employment (No 2) [2022] FCA 1021].

In South Australia, children who do not ‘meet the immunisation requirements’ (as defined in A New Tax System (Family Assistance) Act 1999 (Cth)), are not eligible to attend early childhood services [see above]. However, some children who receive an exemption from the South Australian Chief Public Health Officer may be eligible to attend early childhood services (under South Australian law) but still remain ineligible to receive the Child Care Subsidy (under the Commonwealth law) [South Australian Public Health Act 2011 s 96E].