Page 2522 - Week 07 - Tuesday, 1 July 2008
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It could be a reasonable lapse or an understandable lapse for a childcare worker to yell out across the room, “Mary Jo, don’t touch the stove,” and that Mary Jo might be offended by that and might burst into tears. That is a transitory harm to her in that she might be a bit upset for a while, but it would not be a reasonable reason to prefer charges against someone that actually incur a prison sentence. I think this is the fine line.
My problem with Mr Mulcahy’s amendment is his use in his proposed subclause (2) (b) of the word “significant”. There is a view that it could be mild emotional damage, but it may not be transitory. I think the point that Mr Mulcahy is probably making is that it is about some sort of transitory emotion that causes someone upset. This is going to be an extraordinarily hard thing to judge, but I do not want to set the bar too low. On reflection, I will not be supporting Mr Mulcahy’s amendment.
DR FOSKEY (Molonglo) (6.02): I am glad to have the chance to speak again, because, I did not have the original amendment in front of me earlier. I want to thank Mr Gentleman for coming over and pointing out that word “significant”, which is the major word in (b). Hearing all the arguments has certainly assisted me, and I do not support the amendment. I just want to say, though, that these are tricky things, because these words are qualitative. We would have problems because they mean something different for different people. The words “significant emotional or physical harm” obviously mean something negative to Mr Mulcahy, but how that is judged is really difficult.
The Greens in New Zealand introduced legislation which would have made smacking and physical punishment illegal. I know that was the cause of huge amounts of debate, and these sorts of issues often are contentious. I suspect that if we were talking about the family home, it would be much more contentious, but, because we are talking about childcare centres, which are like schools, there really needs to be a framework of behaviour about which everyone is certain, and we need as few grey areas as possible. In that way, the word “significant” adds a grey area that then creates difficulty in interpreting whether some behaviour was significant or not. It is possible that any breach may be being argued in courts some years later when nobody really remembers what the initial issue was, anyway. I just wanted to clear the air about that. I will not be supporting Mr Mulcahy’s amendment.
MR MULCAHY (Molonglo) (6.04): First of all, there is not any dispute here about the physical punishment issue, so I am not quite sure what the relevance is of what the Greens did in New Zealand. There is no debate; my amendment does not contemplate any change there. What my amendment deals with is the very scenario that Mrs Dunne sought to utilise but she then did not go ahead and suggest a way in which this would in fact adequately protect the childcare worker. One might say to a child, “Don’t touch the hotplate” or “Don’t touch the oven” or “Don’t assault the other child,” and the child might have an outburst as a result of that direction. Under this provision, there is emotional harm if the child were to break into tears, and there would be a full opportunity for action to be taken. The reason I have lifted the threshold of the second point is simply to avoid those sorts of vexatious matters being pursued.
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