New laws on bullying: Schools under increased pressure to do more

12 October 2017

Even if you subscribe to the controversial school of thought that bullying is an 'inevitable' interaction, that it is 'part of growing up' and 'builds character', it is uncontested that being bullied, particularly at a young age, can have very serious consequences for a child’s wellbeing, development and overall mental health. It is hence little wonder that bullying and harassment are taken very seriously by schools.

There are many different types of bullying behaviour, including verbal/written abuse, violence and discrimination. Cyber bullying is also becoming an increasingly concerning issue; a recent ReachOut survey found that 40% of parents rank cyber bullying as their biggest worry, and 20% of teenagers experienced cyber-bullying in the previous month.

However, experts and decision makers are at pains to stress that bullying is not a singular incident, or mere teasing and name-calling. It is a pattern of repeated and intentional behaviour, causing fear, distress or harm towards another person that involves an imbalance of power.

The true extent of the consequences of bullying, and the longevity of its effects, remain uncertain. However, a recent UK study of twins – which allowed researchers to control for the impact of shared environmental and genetic factors – has attempted to clarify these uncertainties.

The research confirmed that being bullied at a young age leads to symptoms of anxiety and depression, as well as paranoia and disorganised thoughts. While the study suggested that these effects do lessen or disappear over time, symptoms can last 2-5 years, with the paranoid and disorganised thoughts only dissipating after 5 years. Such ongoing symptoms can have very tragic consequences.

Acting upon tragedy: new South Australian Bullying Bill

As School Governance recently reported, the tragic suicide of an Adelaide school girl – Libby Bell – has precipitated a public inquiry into the effectiveness of existing cyber bullying laws, with public submissions due by tomorrow, 13 October. At the time, we reported that there were calls for the South Australian Government to strengthen legislation in order to target and punish bullying. Further, a School Governance poll found that 69% of respondents agreed that criminal cyber bullying offences should apply to minors. This statistic emphasises how serious the student bullying issue is and more importantly, how strongly the community feels about punishing bullies, regardless of their age,

Answering these calls and in response to strong public support, the Statues Amendment (Bullying) Bill 2017 (the Bill) was introduced in the Legislative Council of the South Australian Parliament on 27 September by the Hon. D.G.E Hood, state leader of the Australian Conservatives. Referred to as ‘Libby’s Law’ in discussion, the Bill intends to capture and penalise serious acts of bullying.

The Bill is modelled substantially on ‘Brodie’s Law’ in Victoria, introduced by the Crimes Amendment (Bullying) Act 2011. Brodie’s Law came in response to the death of Brodie Panlock, a 19-year old Melbourne waitress, who took her own life after suffering ongoing workplace bullying.

Section 20C of the Bill proposes an offence of bullying. A person who does the following will be considered guilty of an offence:

  • intends to cause harm or is reckless as to whether harm will be caused to another person;
  • commits more than one act of bullying against the other person; and
  • this causes harm or serious harm to the other person.

The Bill introduces a wide array of conduct which is considered to be bullying of another person, including:

  • threatening to cause them harm
  • using abusive or offensive language towards them
  • publishing or transmitting offensive material electronically, or leaving it where it will be found by or given to the other person
  • any conduct that could reasonably be expected to degrade, humiliate, disgrace or harass, or cause apprehension or fear in, the other person.

Harm incorporates all physical and mental harm, including suicidal ideation, thoughts of self-harm, and distress, anxiety or fear that is more than trivial. Serious harm includes endangering a person’s life, serious/protracted impairment, and serious disfigurement.

While there is a requirement of intent to cause harm, it is not necessary to prove there was an intent to cause serious harm, or that the type of harm which eventuated (in particular self-harm) would occur.

Debate on the Bill has been adjourned, and the Legislative Council will not re-sit until 17 October.

Broader implications for schools

The ReachOut survey previously mentioned also found almost a quarter of persons aged 14-25 had been bullied in the past year, with 52% of those persons bullied being targeted at school. More alarmingly, a NSW survey by the Advocate for Children and Young People found that 97% of children had suffered bullying in the schoolyard, or online, by their classmates. This means that any legislative developments which target bullying will have a substantial impact on the school environment.

However, introducing punitive measures as a primary intervention to target bullying and harassment is unlikely to be the end of the story. As suggested by the UK study’s findings, the fact that the negative effects of bullying do decrease or disappear over time, means that there is a case for building secondary strategies aimed at building the resilience for children at risk and addressing their prior vulnerabilities.

The Hon. D.G.E Hood also commented in his Second Reading Speech that the behaviour in the Libby Bell tragedy “should never have been allowed to go as far in this school and in this situation”, with further suggestions that the schools involved in the other cases did not go far enough to preventing or disciplining the harm. This accords with the research of the NSW Advocate for Children and Young People, suggesting that most students felt that their teachers were turning a blind eye to bullying and should deal with incidents appropriately rather than ignoring them.

Preventing and managing bullying in schools

Schools around Australia are under increasing scrutiny to show they are able to combat the ‘endemic’ bullying problem and to meet their duty of care obligations. The clearest way to answer this scrutiny is to expand and improve upon existing discipline and anti-bullying policies and procedures.

Schools should also implement anti-bullying strategies designed to mitigate against the risk and consequence of bullying. Such strategies include:

  • training staff to understand how to recognise various kinds of bullying, in particular cyber bullying
  • educating and warning students and parents on how to recognise bullying and the potential consequences for the victim and the perpetrator
  • strengthening pastoral care programs with mentoring and counselling to provide support and promote resilience.

Schools should also be aware that certain types of serious bullying, even if it is committed between students, may constitute child abuse, and depending on the jurisdiction may also require mandatory reporting if there is a risk of significant harm. Therefore a school's anti-bullying and discipline practices should form part of its broader child protection policies and procedures.

Kieran Seed

Kieran is a Legal Research Coordinator at CompliSpace. In his position, Kieran assists with drafting and review of governance, risk and compliance content programs and client-requested policies, while also writing regular articles for School Governance. Kieran’s key focus areas are student duty of care and school registration. Kieran studied at the University of Sydney, completing a Bachelor of Law and Bachelor of International and Global Studies majoring in Government and International Relations.