Bullying, Young People and the Law: Challenges for the Future 1/07/2014
Presentation By Bullying, the Law and You The Honourable Alastair Nicholson AO Challenges for the Future RFD QC Chair, National Centre against Bullying Honorary Professorial Fellow, Faculty (the current landscape with particular reference to schools) of Law, University of Melbourne Former Chief Justice, Family Court of Australia
Outline of Today’s Discussion I will outline Federal and State law that affects bullying and current proposals for Today I am going to discuss: change, both in Australia and elsewhere; • What is bullying? I will discuss the duties of teachers, schools and employers, who become • Prevalence of bullying in Australia; aware of bullying between students or • Common effects of bullying upon employees; individuals; I will then discuss the civil law as it Much of this will be well known to this affects bullying and the duty of audience, so I will deal with these employers, teachers and in the case of matters very briefly. children, parents or carers; Finally, I will talk about methods of dealing with bullying and some developments in Australia in that regard.
Alannah & Madeline Foundation My Personal Involvement (AMF) http://www.amf.org.au/ Before doing that I will tell you something about my own involvement in the area of bullying and why I am interested in the area; AMF was set up to prevent violence I will also talk about my association with the Alannah & Madeline Foundation and the against children following the Port Arthur National Centre against Bullying; tragedy in 1996 at the instance of Walter A particular area that concerns me is the Mikac, the father of Alannah and connection between family violence and Madeline, two young schoolgirls who were bullying, which I saw so often at the Family murdered at Port Arthur. Court. Its many activities include an active role For these reasons, in 2002, when I was still Chief Justice of the Family Court, I accepted in bullying prevention, which I will discuss the position of chair of the NCAB, which was at the end of this presentation in the course of being set up by AMF and have chaired it ever since
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The National Centre against What is Bullying Bullying (NCAB) (AMF and NCAB definition) http://www.ncab.org.au/
NCAB is a group of experts from all over “Bullying is when someone or a Australia advising and informing on the group of people with more power issues of bullying and the creation of repeatedly and intentionally safe schools and communities. causes hurt or harm to another person or group of people who NCAB works closely with school feel helpless to respond. Bullying communities, governments and industry can continue over time, is often in addressing bullying issues. hidden from adults and will NCAB’s Biennial Conference will be held probably continue if no action is in Melbourne on 6-7 August. The taken” conference will feature presentations and workshops from speakers from Australia and overseas.
Prevalence of Bullying in Australia
This is not a legal definition because bullying 27 per cent of young people has not been defined by the law in Australia report they are bullied every except in a recent amendment to the Fair Work Act in relation to workplace bullying; two weeks or more often.
However where it has been legally defined in other countries, the definition closely follows Cyber-bullying happens to this one; about 1 in 10 Australian young It is also generally accepted within the people every few weeks or education community and relevant academic more often. publications in Australia;
Common Effects of Bullying A Generational Problem on Individuals
Bullying can seriously damage Bullying is an intra and inter- physical, social and emotional generational phenomenon, with health, often on a permanent children who bully others at the age of 14 years likely to still engage in basis and blight people’s lives. aggression at the age of 32 years There is strong evidence of a and to have children who connection between bullying themselves engage in bullying and and suicide. aggression
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Connection between Bullying and later criminal behaviour
Not all children who bully are on A Swedish study found 60 per cent the trajectory that leads to of the boys labelled as 'bullies' in violence and criminality later in Years 6-9 (aged 13 to 16) had at life. But of all children, these are least one criminal conviction by the the ones most at risk for age of 24. Former school bullies eventually committing violent were four times more likely than crimes. other students to engage in relatively serious crime.
Types of Bullying Bullying and the Law
Physical bullying, either involving an assault or threat of it It is important to understand that bullying is not a criminal offence or a civil wrong in Verbal bullying, including name calling, Australia insults, teasing, intimidation, homophobic This is important because it means that the or racist remarks, or verbal abuse. criminal law only provides a limited or no Covert bullying, designed to harm response to certain types of bullying and the someone's social reputation and/or cause civil law has to be adapted to do so. humiliation. However many types of bullying can be criminal offences depending on the Cyberbullying is overt or covert bullying circumstances and may also attract civil behaviour using digital technologies; liability for damages.
New Commonwealth Workplace Applicability Bullying Legislation
One exception to the lack of legal definition of The Fair Work Act does not cover State public bullying is that from 1 January 2014 anti-bullying sector employees or local government employees amendments to the Fair Work Act came into in NSW, Queensland WA and SA. effect. State public sector employees in Tasmania. These allow a worker to apply to the Fair Work Commission for an order to stop the bullying. It does cover all employees in Victoria, NT and ACT. Applications must be dealt with within 14 days and if successful and orders are made, breach can lead All private sector employment in NSW, Queensland to penalties of up to $10,000 for individuals and and SA. $50,000 for corporations. All private sector and local government This has particular relevance to teachers who may employment in Tasmania. be targets of bullying, but also to workers generally.
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Brodie’s Law State and Territory Laws Victoria only Brodie’s Law makes serious bullying, in These consist of : Victoria a criminal offence by extending Laws against assault and like offences cover the application of the stalking provisions serious physical bullying and death threats in the Crimes Act 1958 to include a range and threats of violence, although in practice of behaviour that involves serious they do not operate effectively unless the bullying. The offence carries a maximum police consider the offences serious enough to penalty of 10 years imprisonment. warrant action. Although desirable legislation, it has Provisions tacked on to stalking laws cover limited value on its own, because police most forms of bullying and harassment are reluctant to use it for other than involving following and besetting type offences. Some of these offences can be serious offences. difficult to prove.
Commonwealth Law Threats, including threats to kill using carriage services under
This is Australia wide law that is Commonwealth Law important in the areas of sexting and Threats to do serious harm carry cyber-bullying and any bullying activity up to seven years imprisonment that involves use of communication and to kill, ten years if made services; over a carriage service. It is an offence to use a carriage service, Importantly these offences can which includes internet and phone only be established if it can be services “In a way that reasonable proved that the perpetrator persons would regard as being menacing intended the victim to fear that harassing or offensive” and carries a they would be carried out, which penalty of up to three years is quite difficult to prove. imprisonment;
Age Limitations on prosecuting Laws against bullying offences under Commonwealth, overseas State and Territory Law Proposed New Zealand legislation will introduce an offence of up to three A child under 10 cannot be prosecuted for months imprisonment for cyber-bullying any criminal offence. covering adults and children. A child between 10 and 14 can only be The legislation also provides for an prosecuted if it can be proved beyond offence of inciting a person to suicide, reasonable doubt that they understood whether or not the suicide takes place. the nature of the offence that they were Five Canadian Provinces and many US committing and knew that it was wrong. States have introduced laws against cyber-bullying.
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Future Developments in New Federal Government Australia proposals
The Federal Government has recently It has agreed to appoint an e- rejected a proposal to create cyber-bullying a commissioner with powers to make criminal offence, saying that the existing law is sufficient. immediate take down orders of offensive material on the internet relating to This is a surprising conclusion considering that the existing law is largely unknown and children but not adults. unintelligible to most people, including It proposes a regime where fines will be children. paid if takedown orders are not This is particularly dangerous since they complied with but no criminal penalties frequently break the law without knowing it. will apply
Civil Law and Bullying In 2013, AMF and NCAB held a Symposium in Melbourne for over 100 people which included leading legal and academic experts on bullying. So far I have discussed criminal law but civil law is also important. It unanimously recommended that a lower range offence of bullying should be created to Civil law operates to give persons who make it clear that bullying is unacceptable have suffered injury or damage a right to conduct in a modern society. seek damages and/or a right to obtain orders that the conduct complained of This recommendation has been largely cease. rejected by Governments. In the case of bullying the most important Meanwhile, bullying continues unchecked and category under which these rights arise is unabated with limited effective legal the law of negligence. sanctions.
Negligence, Assault and Negligence in a school or Defamation workplace environment
Negligence is a failure to take reasonable The most important aspect of the law of care for the safety of persons to whom a negligence in this regards is the duty of duty of care is owed. care owed by teachers and school authorities to pupils and management and If it is breached by a failure to take reasonable care and someone suffers proprietors to employees. personal injury or damage to property The law is clear that teachers and schools then they have a right to claim damages. owe a duty of care to their students and Assaults can be physical or threatened employers to their workers to take and also gives rise to an action for reasonable care for their safety. damages as well as criminal remedies. The law of defamation may also be relevant in some cases. Intervention orders may also be available
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The extent of the duty of The limits of the duty to care to control bullying control bullying
In the case of schools and employers such However given the modern development of a duty is clearly owed in respect of injury cyber-bullying it may well be that the school or employer has a duty to control it occurring on the premises and in relation if perpetrated by students or employees at to school or workplace activity outside other times; the premises. This duty probably only arises if the perpetrators are fellow students or Usually the duty ends at the school or employees and the school, or employer is, workplace gates or immediately outside or ought to have been, aware of the them. problem and takes no action; Employers may have a similar duty to protect employees from sexual harassment or assault from fellow employees away from the workplace in certain circumstances.
Teachers The duty of parents or carers
Teachers owe a personal duty of care to protect students from bullying and may be defendants in actions for damages brought by students. Arguably, this is a 24 hour obligation Parents and carers owe a similar duty to take reasonable care to prevent their children Teachers may themselves be victims of causing injury to others; bullying by superiors, fellow teachers, The law is not clear as to the extent of this parents and increasingly by students duty and remains to be tested. However there themselves, particularly by cyber-bullying and can be little doubt that parents who either have similar remedies at law. encourage their children to bully others or upon becoming aware of it do nothing to stop The primary duty to take reasonable care to it, could be held liable in damages; protect them lies with their employer in the same way as other employees, but the others At least one Canadian Province has legislated to make parents or carers directly responsible mentioned may also be liable. for bullying carried out by children under their care.
Deficiencies in Australian Law What do you as professionals do to handle bullying?
No specific law against bullying; Recognise that the existing law provides Many forms of bullying such as verbal abuse, very limited solutions except in cases of name calling and exclusion are unaffected by very serious bullying. the law unless electronic means are used. Know the law and inform students and Lack of uniformity in State and Territory law employees that may inadvertently commit makes cross boundary prosecution for cyber serious offences when using electronic offences difficult; systems. Commonwealth law is deficient in many ways; Try to bring about attitudinal change to Existing laws relating to bullying are largely the school or workplace community in unintelligible to young people and others; order to gain recognition for the problems Civil remedies are slow and expensive; caused by bullying.
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Take immediate steps to counter bullying when you become aware of it. Too many teachers and Possible Scenario’s others in authority ignore genuine cries for help. 1.A student complains that he is receiving Assuming that your schools all have anti-bullying offensive e-mails that he believes come from policies, take steps to ensure that they are being classmates. As his teacher: implemented by means such as: (a) what are your obligations? Appointing a standing committee consisting of (b) what action should you take and how do you staff and students meeting regularly to examine go about it? them and suggest ways in which they might be better implemented; 2. As Principal you become aware that one of your students is distributing erotic videos of himself Enabling students who have been bullied to and a female fellow student to classmates and approach staff in confidence; others. What should you do?
Developing programmes to give students an (a) Discipline the student concerned ? Does the appreciation of differences such as race, colour, fact that she consented to the distribution or did not consent affect the matter? religious persuasion and sexual preference as part of normal society; (b) Inform the parents of both students? (c) Call the police?
Scenarios (Cont) Scenarios (cont)
3. As a teacher you discover that some of your You as principal (manager) receive a complaint from parents students have set up a Facebook page falsely that they have made repeated complaints to teachers, accusing you of sexual molestation of your (middle management) and nothing has been done. They students, bullying and other offensive conduct. indicate that they propose to sue you personally and the organisation for negligence. What do you do? What do you do? (a) request Facebook to take it down. (a) Make inquiries of teachers (managers) and staff as to (b) report the matter to your principal and/or the police. why the complaints were not dealt with. (c) Take any and what legal action? (b) Notify the insurers. 4. You are the subject of continual unfair (c) Talk to your solcitor criticism, insulting comments and reflections on your religion by your immediate superior. (d) Conduct a roundtable discussion with relevant participants in an attempt to resolve the matter. What do you do? (e) Other suggestions? (a) Complain to your union/professional association
(b) Consult your solicitors and instruct them to take up the matter with your employer.
(c) Make an application to the Fair Work Commission
Anti Bullying Programmes eSmart – an initiative of the Alannah and Madeline Foundation and NCAB These can provide considerable assistance For some years we have been working on in dealing with bullying if carefully a method to bring about attitudinal chosen and applied; change to bullying; There are many programmes available but We eventually devised a programme not all are appropriate to or designed for which is not intended to be an anti- Australian conditions; bullying programme as such, but which is Anti-bullying policies are only useful if intended to help schools, parents and actively pursued and understood by all in other organisations select or develop the school or organisation; their own anti-bullying programmes;
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What is eSmart in schools? Evaluation of eSmart Schools eSmart is a system to help schools reduce bullying and cyber-bullying and to promote cyber-safety. • Conducted by a consortium led by the Once registered with eSmart, schools are Foundation for Young Australians supported to: • Data collected over two years, consisting create their own plans, policies and qualitative and quantitative data procedures; access the latest resources, tools and • In the first wave of data, over 4,000 surveys information; were completed: students (2,313), teachers and record, track and report on their (1,485), eSmart coordinators (345) and progress in becoming eSmart. principals (175)
Reason for Participating, Evaluation of eSmart schools according to principals
• Over 95% needed a whole schools approach to Satisfaction with eSmart cyber-safety
• Almost 90% wanted to help teachers understand • 90% principals are satisfied with the eSmart the way young people are using ICT Schools online system and framework
• Over 85% needed a structure to address issues of • 80% principals believe that eSmart Schools is cyber-safety, cyber-bullying and bullying effective in changing school culture in relation to • Over 80% hoped to better manage cyber-safety cyber-safety, technology use and bullying incidents
Benefits of eSmart Availability of eSmart
• 90% of principals surveyed agree that eSmart assists schools to:
• Embed smart, safe and responsible online behaviours eSmart is available to all across the curriculum, Australian schools. The Queensland and Victorian State • Improve teacher, student and parent understanding governments have committed of expected online behaviours, to rolling out eSmart in all • Develop better cyber-safety policies and procedures, Queensland and Victorian state and schools over the next three • Improve awareness and management of online years at no cost to those incidents schools.
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Cost of eSmart Creating an eSmart Australia eSmart Schools
• $3,850 per school total over 4 years eSmart Schools In over 1800 schools across Australia • Covers the framework, plus all training, support, resources etc; eSmart Libraries 110 pilot libraries and funding for all 1500 public libraries in Australia • Cost borne by the school, not parents;
• Victorian Government invested $10M to roll eSmart Homes In development outsmart in every Government school in Victoria plus 300 Catholic and independent schools in low SES areas. eSmart Workplaces In development eSmart Libraries • Funded by $8M investment over 8 years by Telstra; • Commenced July 2013 and already in one in three libraries in Australia at no cost to libraries or consumers; © 2014 The Alannah and Madeline Foundation
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