Adequacy of Existing Offences in the Commonwealth Criminal Code and of state and territory laws to c


We have condensed the Senate committee report into the Adequacy of Existing Offences in the Commonwealth Criminal Code and of state and territory laws to capture cyberbullying into an easy to read two-part blog This is Part One.

Released in March 2018 was the Senate committee report into the Adequacy of Existing Offences in the Commonwealth Criminal Code and of state and territory laws to capture cyberbullying. Given an initial two-month period to reach a conclusion, the Legal and Constitutional Affairs Reference Committee rapidly came to a realisation that the complexity of the issue necessitated more time and research, resulting in an extension to March 2018. I was asked to be a part of “The Roundtable” on ABC’s Radio National hosted by Hugh Riminton to discuss the topic – link to the interview here: http://www.abc.net.au/radionational/programs/sundayextra/roundtable/9645580

The report shows bullying is endemic in Australia. That cyberbullying goes hand in hand with face-to face bullying for children. That it is not contained to the schoolyard. That our police are not familiar with Commonwealth legislation available for prosecutions. That this is a social and public health issue. And sadly, that any progress will be held up by the ongoing problem of how to define cyberbullying – something the government has been toying with for over seven years. While the results are disappointing and essentially lead to no immediate action, the content of the report included some valuable information about cyberbullying, the current law and clarifies the epidemic Australia is slowly beginning to acknowledge.

Submission to the committee came from a wide range of parties extending from the eSafety office, state and territory police and representatives, the attorney general, law firms, foundations, journalists, mental health groups and the Australian human rights commission. Examples of legislation in other nations were considered, and whether these could be adapted to Australia. Much of the value in the report came from the submissions, rather than the outcome. And showed there are a wide range of opinions on how to address this matter as whole.

The report and its results are of interest, taking into clear account where Australia is at in developing effective legal processes to prosecute cyberbullies.

The report the Inquiry delivered is lengthy, but some highlights taken from it included the following.

The recommendations as specified are:

Recommendation 1

5.4 The committee recommends that the Australian Government consult state and territory governments, non-government organisations, and other relevant stakeholders, to develop and publicise a clear definition of cyberbullying that recognises the breadth and complexity of the issue.

Recommendation 2

5.7 The committee recommends that Australian governments approach cyberbullying primarily as a social and public health issue. With this in mind, the committee recommends that Australian governments consider how they can further improve the quality and reach of preventative and early intervention measures, including education initiatives, both by government and non-government organisations, to reduce the incidence of cyberbullying among children and adults.

Recommendation 3

5.12 The committee recommends that the Senate not legislate to increase penalties for cyberbullying offences committed by minors beyond the provisions already in place.

Recommendation 4

5.13 Noting the serious harms that cyberbullying can cause, the committee recommends that Australian governments ensure that:

• _the general public has a clear awareness and understanding of how existing criminal offences can be applied to cyberbullying behaviours;

• _law enforcement authorities appropriately investigate and prosecute serious cyberbullying complaints under either state or Commonwealth legislation, coordinate their investigations across jurisdictions where appropriate, and make the process clear for victims of cyberbullying, and

• _consistency exists between state, territory and federal laws in relation to cyberbullying.

Recommendation 5

5.15 The committee recommends that the Australian Government consider increasing the maximum penalty for using a carriage service to menace, harass, or cause offence under section 474.17 of the Criminal Code Act 1995 from three years' imprisonment to five years' imprisonment.

Recommendation 6

5.22 The committee recommends that the Australian Government:

• _ensure that the Office of the eSafety Commissioner is adequately resourced to fulfil all its functions, taking into account the volume of complaints it considers;

• _promote to the public the role of the Office of the eSafety Commissioner, including the cyberbullying complaints scheme;

• _consider improvements to the process by which the Office of the eSafety Commissioner can access relevant data from social media services hosted overseas, including account data, that would assist the eSafety Office to apply the end-user notice scheme, and

• _consider whether amendments to the Enhancing Online Safety Act 2015 relating to the eSafety Commissioner and the cyberbullying complaints scheme would be beneficial, and in particular, consider:

• _expanding the cyberbullying complaints scheme to include complaints by adults;

• _expanding the application of the tier scheme by amending the definitions of 'social media service' and 'relevant electronic service', and

• _increasing the basic online safety requirements for social media services.

Recommendation 7

5.27 The committee recommends that the Australian Government place and maintain regulatory pressure on social media platforms to both prevent and quickly respond to cyberbullying material on their platforms, including through the use of significant financial penalties where insufficient progress is achieved.

Recommendation 8

5.28 The committee recommends that the Australian Government legislate to create a duty of care on social media platforms to ensure the safety of their users.

Recommendation 9

5.31 The committee recommends that the Australian Government consider requiring social media platforms to publish relevant data, including data on user complaints and the platforms' responses, as specified by the eSafety Commissioner and in a format specified by the eSafety Commissioner.

The recommendations will be put to the Parliament at some stage in the future. It is hoped that most of these recommendations will be acted on promptly, and this matter will not be buried under further levels of bureaucracy.

The office of the eSafety Commissioner – facts, figures and processes

Since its 2015 establishment, the Office of the eSafety Commissioner -

  • Approx. 550 complaints have been resolved in relation to cyberbullying material

  • From October 2017 – January 2018 there was a 30% increase in cyberbullying complaints from the same period the year before. At the same time 6,000 kids were referred by eSafety to Kidshelpline.

  • The Office has not used its formal powers and civil penalties against any social media platform. It is able to fine platforms the token amount of $18,000 a day according to 1.26 of the report as a symbolic deterrent, but has been able to negotiate well with the platforms involved to remove material.

  • The Office has not issue any end-user notices to individuals responsible for posting cyberbullying material – these include an apology. (this is in relation to children as the Office currently has no powers to assist adults in matters of cyberbullying).

To date, the cases handled by the Office have not warranted such an intervention. Each has been resolved through the 'hybrid' approach of taking the material down quickly whilst also working with schools, parents and victims.35

  • Rising numbers of complaints saw the current funding and number of staff discussed, with the recommendations allowing for some significant alterations to the eSafety Office be considered, as well as a potential increase in funding.

About cyberbullying - children

Children

  • One in five children in Australia is cyberbullied. Of these girls are attacked more frequently and the numbers on the whole are rising. Form 2015/16 and 2016/7 there has been a 63% increase in complaints received by the eSafety Commissioner.

  • In 2017 of 3,000 contacts about cyber safety, the Kidshelpline had 950 complaints about cyberbullying – 44% from 12-14 year olds. Other figures extend this age range to 10-15.

  • Face-to-face bullying is still more prevalent, cyberbullying is only one part of the problem.

An important note for schools

The eSafety commissioner, the head of strategy and research at yourtown, and the Australian Human rights commission all commented that; -

“ cyberbullying is an extension of bullying or conflict occurring at school”- eSafety

“85% of 400 students surveyed knew who was cyberbullying, and two-thirds of those being cyberbullied knew it was the bully that was doing it in a face-to-face situation” – yourtown

“ …most children do not see a clear distinction between the online a physical world and report that bullying usually occurs in both physical and online settings.” Australian Human rights Commission

The distinction between victim and perpetrator is blurred. Many children who bully were bullied themselves. Statistics from the Alannah and Madeline Foundation state that of the 900,000 bullying incidents in Australia a year, over a third of these were instigators and victims.

And children who cyberbully '…can simply be seen to be modelling the behaviour of their elders and the wider community.' – Yourtown

Why cyberbullies cyberbully

  • For fun, or because they are bored

  • They feel powerless or frustrated and through cyberbullying, they can get attention or vent their anger

  • To model other’s behaviour, they see others doing it

  • Peer pressure

  • To maintain popularity

  • Having being bullied themselves they are seeking justice

And the internet facilitates bullying because

  • The anonymity frees normal inhibitions and people feel they can say anything without consequence

  • People cannot see the hurt they cause which reduces their empathy

  • Strangers cast opinions with no personal knowledge, or connections and no empathy with the person they are attacking

  • Posts online can be shared to 1000’s and re-shared with long-lasting and ongoing effects

  • Bullies can now access their victims 24/7, allowing victims no escape and even off social media personal texts can still reach them.

How children cyberbully ( eSafety and Yourtown)

  • Social exclusion – excusing a victim from online group

  • Outing and trickery – a victim is manipulated into revealing information that the bully them publicises

  • Spreading lies and rumours

  • Harassment – through repeatedly sending messages to targets

  • Cyberstalking – when harassment creates significant fear for personal safety in the victim

  • Denigration – through words or images ( sexual and non-sexual)

  • Impersonation and masquerading – the bully pretends to be the victim. Twenty percent of complaints the eSafety commissioner receives relate to the creation of fake accounts.

  • Happy slapping – filming a physical assault and then distributing this on social media

The effects of cyberbullying between children

All kinds of bullying has a detrimental effect on children. The effects are long lasting causing concerns with self-esteem, mental health ,depression, anxiety and ultimately suicidal ideation.

Kidshelpine cited statistics for the children who make contact with their services about online safety issues, noting that out of these 14% were experiencing suicidal thoughts.

More tragically, out of this 14 % - 9% of these children were aged from 5-12 years old.

This is a horrifying statistic, and schools and parents should take note. Regardless of the position that children should not be on social media in contravention of age restrictions, very young primary students are using these platforms- and they are causing problems that must be addressed in school as well.

Cyberbullies themselves are contacting services. Quoting Yourtown -

…cyberbullies who ring us severely distressed, remorseful and worried about their future. These young cyberbullies urgently need appropriate support and education to help them more positively navigate their online worlds, including mental health support services targeted to meet their specific needs.

Does cyberbullying directly cause youth suicide?

Discussions of the link between suicide and bullying were debated, with the submitters concluding that the level of distress caused was certainly a contributing factor but there were always additional factors.

There are always mental health issues involved. A bullying incident might be a trigger. It might be a factor or it might not be, but there are always mental health issues. We know that 30 per cent of children have been bullied in the previous 12 months. They have not died by suicide. So you can't say that there's a link. It is mental health - Professor Campbell - Yourtown.

A definition of cyberbullying.

Leading into the crux of the report the issue of a definition of cyberbullying was raised.

It seems madness that steps towards reform are hamstrung by this lack of definition. The Law Council of Australia was the first to suggest that the definition of cyberbullying was not universal and thus open to legal debate. While it is undoubtable true that this will effect law reform, that amount of time this problem has been on the table is frustrating. In 2011 Parliament was funding a working group to formulate a definition that could be universally accepted across the country, yet the matter is still hampering progress.

This group– The Safe and Supportive School Communities provided this definition for Parliament to mull over

"Bullying is repeated verbal, physical, social or psychological

behaviour that is harmful and involves the misuse of power by an individual or group towards one or more persons. Cyberbullying refers to bullying through information and communication technologies."

That the community on the whole was not clear on what cyberbullying consisted of was raised by the Alannah and Madeline foundation, and given the law sets standards for community behaviour ( Yourtown) a definition is urgently needed.

Suggestions submitted include:

It's ongoing, so it's not a one-off; it's an ongoing pattern of behaviour and intent—intent to humiliate or to hurt. Teasing might be in a particular context; it might be a one-off. But, when you see a pattern emerging, when it's an ongoing behaviour with that intent then, to me, that's when it passes the line to bullying and cyberbullying - yourtown

'…a very good definition that

comes out of the cyberbullying centre in the US, which is to do with repetitive

attacks with the intent to cause harm using an electronic device, so it's very specific.' – Van Badham

Taken from the Enhancing Online Safety Act 2015 the existing definition of cyberbullying material effecting a child is

when

  1. the material is provided on a social media service or relevant electronic service;

  2. an ordinary reasonable person would conclude that:

  3. it is likely that the material was intended to have an effect on a particular Australian child; and

  4. the material would be likely to have the effect on the Australian child of seriously threatening, seriously intimidating, seriously harassing or seriously humiliating the Australian child;

  5. such other conditions (if any) as are set out in the legislative rules

Parliament stated back in 2011, that various groups would be consulted, and the definition would be discussed with state and territory governments. Evidently, this is still in conversation as the Committees could not provide information about how close these ‘talks’ were to concluding. This is simply not good enough. And the Committees recognised this – seeing a definition is the first recommendation made.

The current state of the law

There were many submissions made that were summarised neatly by the Mental Health Commission of Australia.

'…the problem of cyberbullying is not fundamentally a legal problem, but a social one.'

The eSafety Commissioner emphasized prevention and intervention as necessary before the law stepped in to punish offenders.

…addressing cyberbullying behaviour through criminal sanctions is only effective after the behaviour has been perpetrated. It's arguable that in most instances this will be too late in the process as the harm will have been done to a number of parties. The Commissioner considers that the most effective measure to address cyberbullying is prevention, in the first instance, followed by early intervention through reporting, education and harm minimisation – before the escalation of conduct reaches a criminal level

Admitted by submitters was the acknowledgement that some cyberbullying by children is so serious that criminal sanctions are needed but there was universal agreement amongst those making submission that the position of the eSafety commissioner was the one to follow.

There is need to differentiate between the online actions of children and adults, with different sanctions being applied, and a case by case approach being advocated with younger offenders.

…bullying arises as children and young people explore and push social and relational boundaries, and undergo key transitions through school and puberty. During this process, they will make mistakes, misjudge or not fully consider the consequences of their actions, and an excessively punitive response from our legal system would mean these impulsive mistakes and lack judgement could result in long-lasting impacts on their future lives - Yourtown.

The Commonwealth Criminal Code 1995

The Attorney General took the floor to detail existing legislation. Specified was the lack of a formal cyberbullying definition in Commonwealth law.

The most notable and applicable offence for cyberbullying in the Code is s474.17

(1) A person commits and offence if:

  1. the person uses a carriage service; and

  2. the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Figures from the Director of Public Prosecutions showed this law has been used to against 458 defendants with 927 charges being proven in the 14 years this offence has been introduced.

It is unfortunate that it is not possible to tailor these numbers further to see which of these charges were specific to cyberbullying, but none involve children.

The Attorney General’s office stated this shows this law is no deterrent to children and indicates a need for additional deterrent approaches for school aged cyber bullies.

Many submitters argued the was a gap in current law, that it has not kept pace with cyberbullying, that women needed additional protections, that workplace cyberbullying needed addressing and many other points.

The Attorney Generals Department pointed the out that the broadly framed current legislation was advantageous citing evidence along with other submitters than specifically worded laws did not necessarily have the desired effect, and could made matters harder to prosecute.

General offences criminalising classes of conduct avoids the technical distinctions, loopholes and additional prosecution difficulty or appearance of incoherence that can be associated with multiple more specific offences. The existing offences in the Criminal Code are also technologically neutral, focusing on the harmful conduct of the perpetrator rather than any specific communications service or platform. This makes them applicable to the wide range of communications services and public platforms now in use as well as resistance to frequent rapid changes in communications technology – AG

Without specific figures to showing the exact number of cases brought under this legislation reform is essentially moot. The Attorney General has valid point here in that the determinations under this offence are what a reasonable person could consider to be menacing, harassing etc. – and narrowing the scope of the legislation limits this interpretation – perhaps not resulting in favourable results for a victim.

Evidence from America was presented indicating that specific cyberbullying laws for children have no effect on decreasing the behaviour.

No recommendation was made to alter existing Commonwealth law, though an extension of the penalty from three to five years was ultimately recommended by the committee.

What was disappointing to hear from the report was a selection of comments discussing the police efficacy, and their knowledge and ability to navigate the Commonwealth applications of the law and their awareness of the state versions.

Both the Law Council of Australia and the Australian Law Reform Commission handed down some interesting comments resulting from evidence provided to them.

Research shows that police often refuse to lodge complaints from disgruntled victims of cyberbullying because of their lack of knowledge of the various laws applicable to incidents of cyberbullying. – Law Council

In consultations, the [Australian Law Reform Commission] heard concerns raised that state and territory police may be unwilling or unable to enforce criminal offences due to a lack of training and expertise in Commonwealth procedure which often differs significantly from state and territory police procedures - MEAA

Ginger Gorman summed up neatly, the response many individuals have received in their engagement with the police with the following statement.

She stated that she called the police after her children received threats, and the police told her to …. stay off the internet, Love.”

This issue – of police and their apparent lack of knowledge of the state of the available Law, is problematic, especially when the Australian Federal Police state that under current arrangements State and territory police are currently responsible for investigating cyberbullying matters.

There was disagreement from the NSW police Force, and from the WA police- citing the work they have done in developing cybercrime departments and prosecuting under the current Commonwealth law – but this still does not refute the point that there is a need for the already stretched police forces to take cyberbullying seriously…and recognise the devastating impact this crime can have.

In Part 2 next week - How cyberbullying could be addressed in ways other than criminalising the offences.

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