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Criminal Code Amendment (Bullying) Bill 2019 - Second Reading

6 August 2019
Rosalie Woodruff MP

Dr WOODRUFF (Franklin) - Madam Deputy Speaker, I am pleased to add the Tasmanian Greens' support to the work this bill seeks to undertake, which is to make a very strong statement and add to resetting the culture which makes it very clear that Tasmania and Tasmanians see bullying as an abhorrent act that deserves to be identified and recognised for what it is, which is about a purposeful intent to harm another person or cause them physical and mental harm. This bill proposes to include self-harm or extreme humiliation and also that bullying can be an attempt to cause apprehension or fear in a person. The important point here is that this is about a purposeful intention to cause harm to another person, and what the bill is doing today is a part of the response that we need to have as a society to bullying. It is pretty clear that bullying is on the rise in a number of communities; it is particularly rising in the online community. Everyone who has been harmed - especially children and young people, but all people - can have lifetime effects on their personal wellbeing, and for children on their ability to engage with education, and to learn and to grow in the ways we want all of our children to be able to grow into their full potential. But bullies and bullying seek to stunt and harm a person, and cause fear and anxiety, which can lead to terrible views a person holds about themselves, and to self-harm, and a withdrawal from social activities, a withdrawal from society. We all have a part to play in making sure that we reduce bullying.

The Greens are pleased to support this bill, but in doing so I want to raise some very serious concerns that have been pointed out in stakeholder consultations. We hold with what this bill seeks to bring into being, and also what it fails to bring into being - in other words the limitations of what is not addressed in this bill, and the additional clarification we would like from the minister regarding questions and concerns we have with the bill.

There is a long history to this bill. There were conversations about it in parliament in 2013, then the Tasmania Law Reform Institute undertook a report which was released in 2016, and prior to that they did an extensive consultation with people in the community. Around that initial TLRI report, number 22, some key stakeholders then made contributions - including the then commissioner for children, the Director of Public Prosecutions, the Commissioner of Police, the Anti-Discrimination Commissioner, the Law Society of Tasmania, the Tasmanian Institute of Law Enforcement Studies, Unions Tasmania, and the Youth Network of Tasmania - challenging bullying amongst other people and organisations.

The TLRI listened to their views and produced a report with 15 recommendations. That is an important report, which has formed the basis of the bill that we have before us today. I want to make the point that as excellent as this is, the change that we have before us represents only a tiny part of the Tasmania Law Reform Institute's recommendations. There were 15 recommendations, and this addresses effectively only one of those. A number of the Community Legal Centres of Tasmania very clearly raised this point in their submission and said bullying has to be tackled holistically, and that the Government needs to adopt the TLRI tiered response to bullying, which comprises both criminal and civil justice responses, as well as introducing legislative responses to implement anti-bullying policies and procedures in schools.

I have a number of specific questions that I will ask the minister regarding those other recommendations and what the Government's actions on those are intended to be.

I want to start by addressing what this bill seeks to do, and make some comments on each of the sections.

We support the amendments to the Criminal Code Act 1924, and the proposed amendments to section 192 to broaden stalking to include bullying. We also support the application of the same mental element for both of those offences, namely that an offender has an intent to cause harm or actually causes harm, and knew or ought to have known harm would be likely to occur.

I would like to make some comments about definitions. This has been raised by a number of stakeholders in their submissions to this bill. These were made by the Youth Network of Tasmania, an organisation that represents the interests of young people aged 12 to 25 years. They made some very strong statements about their concerns that bullying and cyberbullying have not been defined in this bill. The Greens support that view. It is not clear what is meant by 'bullying'. When I was listening to the member for Clark's comments, I noticed that there has been a perception or a discussion about this bill in the community that it is about cyberbullying. It is not just about cyberbullying. This amendment make changes to section 192, and adds bullying into -

Ms Archer - Appropriately.

Dr WOODRUFF - to stalking. Correct, it has to cover all bullying, yes. But there is nothing that is specifically about this; it is not just about cyberbullying.

Ms Archer - That is what I am saying, I am agreeing with you.

Dr WOODRUFF - I absolutely agree. I just want to make the point that it is broader, and must be broader, and -

Ms Archer - We have no control how the media reports things.

Dr WOODRUFF - Yes, but it is important in this debate to be clear that this is not an amendment which specifically relates to cyberbullying. Nonetheless, cyberbullying is a particular form of bullying that has only become prevalent in recent years.

The Youth Network of Tasmania makes a plea to the Government to grapple with the complexities of defining what bullying and cyberbullying means. There are unique characteristics that distinguish cyberbullying from traditional face-to-face bullying, including that numerous online platforms can be used, that cyberbullying is often hidden in its nature, and cyberbullying has the ability to provide material that reaches a wide audience quickly, which can have a very immediate and far-reaching and damaging impact, in a way that is more difficult to do with non-cyberbullying. They make a strong statement about the importance of grappling with the failure to find a definition for cyberbullying in Australia, and this has been recognised as a problem at the federal and the state level.

This was raised by the Senate Legal and Constitutional Affairs References Committee last year and I would appreciate the minister returning in her response to why a definition was not provided in this amendment bill.

The Law Council of Australia's view also is that we need to have a common understanding of behaviour that constitutes cyberbullying, and young people need to understand the boundaries of what behaviour is considered unacceptable and lawful with regard to cyberbullying. This is the view of the Youth Network of Tasmania, and clearly, they represent the interests of young people. But it is also the case that people of all ages need to understand what constitutes bullying and cyberbullying.

I want to reflect on a code of conduct finding against a councillor in Tasmania that was made and reported on yesterday. I will not go into the details, but a complaint was made about a councillor having used bullying and disrespectful language, and that was found in favour of the complainant by the code of conduct board and the Local Government Association. The conversation about that in the media flipped and the councillor who had the finding made against them made statements to the effect that they felt themselves to be a victim because of the fact somebody had taken a complaint against them. I see it happening on a regular basis that, by virtue of the fact that people make a complaint, women make complaints about being sexually harassed, and perpetrators or people against who the complaint is being made sometimes feel that just the act of saying, 'Hey you're bullying me,' is somehow a bullying tactic in itself.

We need to have some much more considered public conversation about how you respond but, to make it pretty clear, making a complaint about being bullied ought not in itself by definition be considered a form of bullying. This is where the Director of Public Prosecutions needs to provide some very clear guidelines to make it quite clear what bullying constitutes and what sort of behaviour is meant by bullying under this amendment bill as it is not clear on the face of it what that would mean.

In relation to the amendments to the Justices Act 1959, I wanted to flag with the minister, and I believe the member for Clark raised this as well, that there is a restraint order bill that has been tabled. I would like the minister to explain whether an amendment will be made when that bill comes on for debate that is able to manage the issue about the amendment to the restraining order - I think it is section 72 of the Justices Act - that would allow any person who is subject to serious bullying to apply for a restraining order. Currently a victim is only able to apply for an order that is designed to stop bullying behaviour if it involves their spouse or partner. As I imagine is the case, the Government would be proposing once this bill has been passed that those sorts of consequential amendments that flow from this bill would be as amendments into the restraint order bill. If the minister could - do you understand the point?

Ms Archer - Yes, I understand what you're saying.

Dr WOODRUFF - Thanks. That would satisfy the concerns we have and that have also been raised by the community legal centres in their submission. If bullying g occurs from a person who is not your spouse or partner you ought to be able to make an application for a restraining order if that is appropriate.

One of the concerns raised by Ms Leanne McLean, the Commissioner for Children and Young People, in her submission related to concerns that amendments would apply to children and young people under 18 at a greater level than it would to other people in the community. She raises concerns about the appropriateness and efficacy in the context of bullying between children, except in the most serious of cases, going through the criminal justice system as a manner of responding to that bullying behaviour.

Many people who provided submissions to this bill made that point including the Youth Network of Tasmania, the community legal centres as well as the Commissioner for Children and Young People. The point is that the criminal justice system is an excessively blunt instrument and it should only be used for the most intransigent and persistent offenders and in order to truly change behaviour there has to be an alternative dispute resolution process that is offered in most instances, particularly for young people. Bullying is often the result of underlying issues that can be effectively addressed in much more proactive and restorative ways than through the criminal justice system. The Youth Network of Tasmania strongly advocates for a social and public health approach to managing bullying and note that we have a responsibility to address the needs of all young people and that includes those who are engaging in bullying behaviour and the bullying victims themselves.

The research shows that young people who engage in bullying behaviour and those who are bullying victims at school are at a significant risk for a range of antisocial, criminal and poor health outcomes later in life. They say that a failure to address those issues means that this bill would do little to change bullying behaviour. They advocate that they do not believe law reform will effectively deter young people from engaging in bullying behaviour and argue strongly for the Government to place the emphasis on the social drivers of bullying behaviour, in particular the family, community and system-wide responses to bullying that we need to have.

These are really important points and we agree that we have to look at the social drivers that create people who have been damaged in behavioural, emotional and psychological contexts, including young people who themselves are victims of family violence, abuse or neglect who have themselves been bullied by other young people who suffer low self-esteem. These are often the people who become bullies themselves. That is not to excuse their behaviour but to understand it, and if we seek to change behaviour we have to address those system-wide issues.

We totally agree with the Youth Network of Tasmania's concerns but we do not agree that there is no place for a legislative change. This sends a strong signal about what ought to happen to people who are persistent, aggressive, intransigent bullies of other people who have had opportunities to change and who inflict great harm on other people.

Although young people are least able to understand what a bill like this means and noone under the age of 18 would be aware that this bill passes the House, it sends a signal to us in the community, it is not clearly not only for young people, to all people who bully and to us as a community that there are consequences for people who treat people in such a harmful way. I hope that triggers further community-wide conversations about bullying so that does have an impact on families, conversations at schools and online, so we are all more aware of the things we say and of treating people with respect regardless of what they throw at us, of not responding with an eye for an eye and understanding that that leads to a downward spiral. We all have to do what we can to stand up against bullies and to address the underlying issues behind that. The Greens believe there is a place for this strong statement of consequences but that we must address the systemwide issues.

In relation to comments made by the Director of Public Prosecutions and the former commissioner for children and young people, Mr Mark Morrissey, in their original responses to the TLRIs Final Report No 22 - Bullying, they made the comment that categorising children as either perpetrators or victims in the context of bullying is not in the best interests of the child. The then commissioner explained that legal and criminal justice responses to bullying raise a number of concerns, specifically: the introduction of children to the criminal justice system and the resulting stigma attaching to young offenders; the difficulty of the legal system in accommodating or defining the complexities of bullying between children; the highly individualised nature of occasions of bullying within interpersonal relationships; the need for support for victims and participants in bullying behaviour to rebuild relationships and prevent occurrences; the potential oversimplification of bullying and its causes; and the need for broader educational and social responses rather than punitive responses. In the TLRIs bullying report -

… the Director of Public Prosecutions noted that, other than in extreme cases, prosecuting anyone under the age of 18 would not be appropriate at first instance, and that it would be more appropriate for the behaviour to be dealt with by the school or by way of a caution.23 Tasmania Police were also concerned that if the criminal law is used to deal with bullying, children may be the subjects of the majority of complaints.24

That is an important point because of children's behaviour. On the face of it, children are potentially most vulnerable to prosecution under this act. Both the DPP, the Tasmanian Police and the Commissioner for Children and Young People are all clear that, except in the most serious of cases, children and young people who engage in bullying will be much more appropriately dealt with and responded to in restorative justice and non-punitive ways.

It is important that the DPP provide guidelines for the definition of bullying. I note that the Commissioner for Children and Young People provides in-principle support for the bill. It is very important that the DPP publicly release guidelines outlining the consideration that would be taken into account when they determine whether to prosecute a person for bullying behaviour. Can the minister please outline whether it is her expectation that those guidelines would be provided at the earliest instance, or offer the time line for that? That is going to go some way toward satisfying some of the concerns of stakeholders about the lack of a definition of bullying, the need for clarity as to bullying and cyber bullying and the circumstances in which prosecution may be sought for a person's bullying behaviour.

That goes to the last major point I want to make about this, which is about the importance for restorative justice and working on the rest of the recommendations from the Tasmanian Law Reform Institute's report on bullying. The other 14 recommendations relate to a whole range of issues that must accompany this bill in order to truly create a cultural change in behaviour around what is acceptable in terms of bullying. I welcome the minister's comments about the time frame for government action on those other 14 recommendations in our schools, their recommendations to establish anti-bullying policies and procedures in schools and in undertaking education that will reduce the escalation of bullying behaviour in the school environment.

We have a number of questions to ask in the Committee stage but I indicate that the Greens will be supporting this bill and we do not have any amendments that we wish to make to it.