Is School Bullying Illegal?
Bullying is a significant and ongoing problem in Australian schools. Schools have anti-bullying rules and regulations and usually deal with the problem internally. However, some bullying is so severe that it cannot be dealt with at the school level. This article explains the legal implications of school bullying in Australia.
What Is School Bullying?
Bullying is when someone deliberately and repeatedly causes upset, hurt or damage to a person or group of people. Bullies within a school setting are typically students, but teachers can also bully students. The behaviour can be:
- Physical (hitting or pushing);
- Verbal (insults, abuse, name-calling);
- Social (overt or covert exclusion, spreading rumours);
- Psychological (manipulation, threats and stalking); or
- Cyber bullying (harassment over technological mediums).
Bullying harms the victim’s self-esteem and wellbeing. It can also seriously affect the victim’s reputation within and outside the school. Many children have experienced life-long mental health consequences from school bullying. In the most tragic cases, bullied children have committed suicide to escape their tormentors.
Bullying usually occurs out of sight of adults, and children are often reluctant to report the behaviour for fear of reprisal. A parent may see signs such as a child not wanting to attend school, a drop in academic performance, being socially isolated, having trouble sleeping, or being unusually quiet and secretive. In serious cases, the child might have physical injuries or missing or damaged belongings.
Reporting School Bullying
All schools have a duty of care to do everything reasonable to provide their students with a safe environment to learn. As such, every school should have policies to prevent and respond to bullying. All public schools in Australia have anti-bullying policies to address school bullying and cyberbullying. These schools must have clear processes to report bullying, and the school must respond quickly to any report.
When schools receive a report, they will develop a plan to deal with the bullying, even if it occurs online and outside school hours. If the student or parents have consulted with the principal and are not satisfied with the plan or its outcomes, they can complain to the relevant school authority. It is also advisable to consult the police or a solicitor in some circumstances.
Is School Bullying Illegal?
Bullying is a crime if the perpetrator:
- Deliberately causes physical or mental harm;
- Threatens to hurt or kill;
- Stalks the victim (following, watching, intentionally scaring the victim); or
- Intentionally steals or damages property belonging to the victim.
Bullying might also be illegal if it pertains to a protected category of discrimination, such as discrimination based on gender or race. This means that even verbal behaviours (such as name-calling in the schoolyard) may be illegal if racial slurs are used.
In these circumstances, the victim can report the matter to the police. The police may decide it is appropriate to caution or charge the bully with a criminal offence if the bully is old enough to be held criminally responsible for their actions. The police cannot charge a child under the age of ten with a crime, and there is a rebuttable presumption that a child under the age of fourteen lacks the capacity for criminal intent.
In cases of serious bullying, the courts can make an intervention order to prohibit someone from engaging in bullying behaviour in the future. For example, an order can specify that a bully cannot contact the victim or approach them at school or home. If the bully does not follow the intervention order, they can be charged with a criminal offence.
It can be a crime to bully someone on social media, email, chat rooms or through text message. It is illegal for someone to use the internet or phone carriers to threaten, distribute suicide promotion material, or menace or harass someone. A bully cannot publish someone’s private information or launch online hate campaigns. Someone who is bullied on these platforms should carefully save and print any electronic evidence, noting the date and time that it is saved. A student can be charged with unlawful operation of a computer system if, for instance, they gain access to another student’s email or social media accounts and impersonate them online.
Under the Criminal Code Act 1995, it is illegal for someone to send (or threaten to send) sexually explicit photos or videos of a minor. If a student uses this material to intimidate or blackmail another student into acting against their will, this may also constitute a criminal offence.
If your child is experiencing bullying, the first step is to report the matter to the school. If your child has been physically harmed or their property has been damaged or stolen, you should report the incident to the police. The solicitors at Armstrong Legal can provide legal advice on whether the matter constitutes criminal behaviour and help you seek an intervention order or other legal solution. Please make an appointment or phone 1300 038 223 for assistance.