Bullying is ‘ongoing physical, emotional or verbal aggression by one or more people against others’. 1 Acts of bullying can involve ‘intentional injury or physical assault such as kicking, hitting, pushing, punching or damaging property; psychological assault such as teasing, name-calling, taunting, rumour spreading or ostracism; continued harassment of a student by other students through email, text messages or chat rooms with a aim of insulting and ridiculing others; or direct or indirect harassment such as sexual abuse, or vilification, for example on the basis of race, ethnicity, ability, gender or sexual identity. Unlawful discrimination may also amount to bullying’. 2

Unfortunately bullying is widespread, and can have detrimental effects on all involved, including the bully. 3  Children frequently involved in bullying as bullies and/or as victims of bullying, share a significant risk of suffering from various health problems such as:

  • anxiety,
  • backaches,
  • depression,
  • dizziness,
  • headaches,
  • injuries that require medical care,
  • irritability,
  • low self-esteem,
  • sleeping difficulties,
  • stomach aches,
  • suicidal attempts, and/or
  • suicide. 4

Health advisers state that parents can help their children by believing and supporting them if they say they are being bullied, helping them develop coping techniques, and speaking to those in authority where the bullying is occurring. 5

This short article focuses upon the laws and policies that may prevent and/or address bullying both at, and beyond, school. Such discussion is particularly relevant to both illustrate how the law can serve as an important tool to improve people’s health and well-being, and to focus our attention upon how to improve such laws/policies.

What can laws and policies do?

Laws and policies play a crucial role in addressing and protecting people against bullying. For example, anti-bullying policies have been found to represent effective intervention strategies in schools for reducing students’ risk of being bullied and cyber-bullied. 6

In Australia, it is an expectation that schools, early childhood services and sporting or interest groups ensure a safe environment for children, and should have policies to prevent bullying.

Policies, codes of conduct and/or guidelines exist in all states and territories that are aimed at preventing and/or addressing bullying within schools across the country. Such policies are also reflective of laws at State/Territory or Commonwealth levels. Some such policies (and associated resources) include:

In addition to the above, understanding general laws that may protect against or address bullying is also important.

Skater boy looking forward

Criminal Law

Commonwealth

While there is no legislation at a Commonwealth level that specifically prohibits bullying behaviour, there are a number of criminal laws that may operate to protect against and/or deal with behaviours associated with bullying. 7

For example, in relation to ‘cyber-bullying’ using the internet or a phone in a threatening, harassing or offensive way may be a crime. 8  This might include threats or intimidation; stalking; accessing internet accounts without permission; and/or encouraging suicide. A text message or post could be considered offensive if it is likely to cause serious anger, outrage, humiliation or disgust, and may lead to a maximum penalty of three years in jail. 9 More serious threats, such as threatening to cause serious harm or threatening to kill someone are punishable by seven to ten years imprisonment respectively. 10

There also exists Commonwealth anti-discrimination legislation that makes certain threats or acts that involve discrimination based upon race, gender, sexual orientation, disability or disease unlawful . 11

States and Territories

New South Wales is the only Australian jurisdiction to have enacted legislation specifically directed at bullying in schools. 12 The Crimes Act 1900 (NSW) s 60E makes it an offence to ‘assault, stalk, harass or intimidate any school student or member of staff of a school, while the student or member of staff is attending a school’. The legislation only applies to actions that occur on the school premises, or while entering or leaving the school premises in connection with school work. 13  

All states and territories do however also have criminal laws concerning assault, battery and false imprisonment. 14 Such laws apply everywhere.

All states and territories also all have criminal defamation laws that make it an offence to publish information that is false about a person (or disregards whether the information is true or false) with the intent of causing serious harm to a person or another (or shows reckless disregard as to whether such harm might be caused). 15

Relevant other legislation on human rights, 16 and anti-discrimination laws prohibiting discrimination or harassment based on race, gender, religion, sexual orientation, and/or disability may also lead to penalties or prosecution depending on behaviour and context. 17

Civil Law

The civil law is also relevant.

If a person suffers an assault, battery or false imprisonment they may bring a civil cause of action against the perpetrator for trespass to person, claiming compensation. Trespass to person includes any behaviour that may cause the victim to anticipate being touched (an assault); that involves contact with the victim (be it through touching, throwing objects, causing other objects/people to come into contact with the victim, spitting on, restraining, or otherwise) (a battery); and/or that imprisons (by limiting the freedom of movement of) the person (false imprisonment) without his/her consent.

Schools and teachers also have a legal responsibility (a duty) to meet a reasonable standard of care in relation to their students. This would include dealing with bullying behaviour of pupils and providing support for both the victim and the perpetrator. 18 If a school or teacher knows or ought to know that a particular pupil is being bullied and fails to take reasonable steps to stop the bullying behaviour, they may be liable in negligence if the pupil suffers physical injury or harm due to the bullying. In such circumstances the pupil may bring legal action against the teachers, school or relevant education authority and claim compensation for his/her injuries. 19

How effective are such laws in preventing and addressing bullying?

 

Group of teenagers

 

The above-mentioned laws respond to injury or harm suffered by a person as a result of bullying by way of imposing criminal sanctions, or enabling a victim to claim compensation.

Laws and policies may also prevent future bullying by way of  having a deterrent effect when criminal sanctions such as fines or jail sentences are imposed, or civil compensation is payable.

In addition, they may direct behaviours and responses by others (such as parents and teachers) to prevent or address instances of bullying.

To have such effect however, they need to be carefully crafted, clear and implemented properly.

In a study conducted by Hatzenbeuhler et. al. in the United States in 2015, it was found that three components of anti-bullying laws were tied to decreased bullying and cyber-bullying – these included:

1) having a description of where and when the school has the authority to take action against bullying;

2) having a clear definition of what constitutes bullying; and

3) having a requirement that schools develop and implement their own local policies, possibly on a timeline. 20

In Australia, a number of bullying research projects have been conducted or are underway. The focus is upon determining which programmes are most effective in addressing bullying in schools. The problem of bullying is a big one. In ‘The Australian Covert Bullying Prevalence Study’ conducted in 2009 it was found that

  • Being bullied every few weeks or more often (considered to be frequent) overtly and/or covertly during the last term at school is a fairly common experience, affecting approximately one in four Year 4 to Year 9 Australian students (27%).
  • Frequent school bullying was highest among Year 5 (32%) and Year 8 (29%) students.
  • Hurtful teasing was the most prevalent of all bullying behaviours experienced by students, followed by having hurtful lies told about them.
  • The majority of students (61%) who had been bullied in any way had also experienced covert bullying (either on its own or in conjunction with overt bullying).
  • Of students who had experienced covert bullying, 60% had also been teased in ‘nasty’ ways, 24% had been physically hurt, and 13% had been sent nasty messages on the internet.
  • Slightly over half (53%) of students who said that they bullied others had engaged in covert bullying (either on its own or in conjunction with overt bullying).
  • Both overt and covert bullying were commonly observed by staff, with about 70% observing or having both these types of bullying reported to them in the term the survey was conducted.
  • Less than one in ten students (9%) reported that they generally bullied others every few weeks or more often, with 11% of boys reporting they bullied others more frequently.
  • By comparison, only 7% of girls reported that they bullied others frequently.
  • When asked qualitatively why some students bully, most believed it was because the person bullying didn’t like the person they were bullying; found bullying fun; enjoyed bullying others; liked to feel tough and strong, in control and popular.

Clearly much work must be done to combat the problem, and to change behaviours. This should include evaluating the effectiveness, and implementation, of laws and policies, and determining which are most effective.

Conclusion

Bullying is a significant problem for children around the world, and may have serious physical and mental health consequences. The law and policy has an important role to play in preventing bullying and/or addressing bullying when it occurs – noting that laws and policies are not ‘the’ solution, but that effective laws and policies may be part of the solution.

Knowing that laws and policies are in place may deter some behaviours, empower people to act, and support them in knowing what to do and who to report bullying to.

Nevertheless, understanding which elements of anti-bullying legislation and policies are more or less effective is vital. In addition, acknowledging that laws and policies may be more or less effective depending on how they are implemented and investigating how to improve implementation is crucial. Future research is called for in this area.

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KIDS HELP LINE – CLICK HERE

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Notes:

  1. Better Health Channel, https://www.betterhealth.vic.gov.au/health/healthyliving/bullying, accessed 14 October 2015.
  2. The Law Handbook, Bullying and Assault, at http://www.lawhandbook.org.au/04_08_03_bullying_and_assault/ accessed 14 October 2015.
  3. See Better Health Channel, ‘Bullying’ accessed 14 October 2015.
  4. Smokowski P. R. and; Kopasz K. H. (2005). Bullying in school: An overview of types, effects, family characteristics, and intervention strategies. Children and Schools, 27, 101–109.
  5. Better Health Channel, https://www.betterhealth.vic.gov.au/health/healthyliving/bullying, accessed 14 October 2015.
  6. Hatzenbuehler ML, Schwab-Reese L, Ranapurwala SI, Hertz MF, Ramirez MR. Associations Between Antibullying Policies and Bullying in 25 States. JAMA Pediatr.2015;169(10):e152411. doi:10.1001/jamapediatrics.2015.2411.
  7. Note, in relation to crimes children under 10 years of age will not be liable for their actions, and children aged between 10 and 14 will only be liable if it can be proven beyond reasonable doubt that the child knew his/her conduct was wrong.  Any offender over 14 years may be held criminally liable.
  8. Criminal Code Act 1995 (Cth).
  9. Criminal Code Act 1995 (Cth), s 474.17.
  10. Criminal Code Act 1995 (Cth), s 474.15.
  11. For example, see Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth).
  12. Des Butler, Sally Kift, Marilyn Campbell ‘Cyber Bullying In Schools and the Law: Is There an Effective Means of Addressing the Power Imbalance?’ (2009) 16(1) eLaw Journal: Murdoch University Electronic Journal of Law, p 88.
  13. The Crimes Act 1900 (NSW) s 60D.
  14. Note, Criminal Code Act 1924 (Tas) s 182(2) provides that words alone cannot constitute an assault. Criminal Code 1899 (Qld) s 245 and Criminal Code 1913 (WA) s 222 both refer to ‘threatening by physical gestures’, which may preclude online bullying via words or images.
  15. See Crimes Act 1900 (ACT) s 439Crimes Act 1900 (NSW) s 529Criminal Code 1983 (NT) s 204Criminal Code 1899 (Qld) s 365Criminal Law Consolidation Act 1935 (SA) s 257Criminal Code Act 1924 (Tas) s 196Wrongs Act 1958 (Vic) s 10Criminal Code 1913 (WA) s 345. Note the wording of the respective statutes differs slightly.
  16. For example see Human Rights Act 2004 (ACT).
  17. For example see Discrimination Act 1991 (ACT) Racial Discrimination Act 1975 (ACT), Sex Discrimination Act 1984 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1996 (NT); Anti-Discrimination Act 1991 (QLD); Equal Opportunity Act 2010 (VIC).
  18. The Law Handbook, Bullying and Assault, at http://www.lawhandbook.org.au/04_08_03_bullying_and_assault/ accessed 14 October 2015.
  19. See for example Gregory v New South Wales [2009] NSWSC 559.
  20. Hatzenbuehler ML, Schwab-Reese L, Ranapurwala SI, Hertz MF, Ramirez MR. Associations Between Antibullying Policies and Bullying in 25 States. JAMA Pediatr.2015;169(10):e152411. doi:10.1001/jamapediatrics.2015.2411.