Bullying to Become a Crime

Bullying comes in all shapes and sizes: from toxic employees forming chat groups to mock and disparage colleagues, to students forming pacts to ignore or gang up on others, to physical abuse.

The question of how we should best deal with bullying has been an ongoing debate, with victims, mental health professionals and legal experts all voicing opinions as to how we should address this issue.

In 2006, a 19-year-old Melbourne woman took her own life after experiencing ongoing bullying at the hands of her employer and colleagues.

The incident triggered sweeping changes to the Victorian Crimes Act, with new stalking provisions embodied in section 21A, including a new maximum penalty of 10 years imprisonment.

Now, the Tasmania seems set to go one step further – with the Tasmania Law Reform Institute proposing a radical new plan to make bullying a criminal offence.

The Proposal

Tasmania’s Attorney General, Dr Vanessa Goodwin, asked the Tasmanian Law Reform Institute to consider how the state could better address the issue of bullying.

The Institute released its final report in January this year, which contained 15 recommendations, including:

1. Replacing the old offence of ‘stalking’ with a new offence of ‘stalking and bullying’ under section 192 of the Tasmanian

Criminal Code, and expanding the current definition to include intentionally causing a person extreme humiliation or causing them to harm themselves physically by either:

• Making threats to the other person;
• Using abusive or offensive words to or in the presence of the other person;
• Performing abusive of offensive acts in the presence of the other person;
• Directing abusive or offensive acts towards the other person;
• Acting in another way that could reasonably be expected to cause the other person extreme humiliation or to harm himself or herself physically or to be apprehensive or fearful.

2. Creating a new civil framework which emphasises a restorative justice approach to bullying by promoting mediation and allowing victims to apply for restraining orders;

3. Giving the Tasmanian Industrial Commission the power to deal with workplace bullying complaints which are unable to be addressed by Fair Work Australia;

4. Imposing an explicit duty of care on employers to prevent bullying;

5. Imposing mandatory legal requirements on schools and other education providers to uphold anti-bullying policies and procedures;

6. Asking the Department of Education to establish a Bullying Working Group to develop these legislative requirements.

According to the Institute, these changes are necessary because existing laws do not specifically deal with bullying and harassment.

Moreover, the Institute found that there is currently ‘no overarching legal framework covering bullying in Tasmania and not all common bullying behaviours are caught by the current laws.’

It also found that overlapping laws and clashes between the criminal and civil law systems make it difficult for victims of bullying to seek justice and prevent further instances from occurring.

On Friday 18 March – the National Day of Action Against Bullying and Violence – the Attorney-General announced the Government would ‘progress legislative amendments to ensure serious bullying behaviour is capture under criminal laws more effectively,’ noting that:

‘The proposed legislative provisions will be updated to ensure that disciplinary action in schools sits within a broader behaviour management approach.

As well as law reform, education and community awareness initiatives have an important role to play in addressing the problem of bullying.’

Dr Goodwin foreshadowed the government’s response to the recommendations by September 2016.

A Legal Issue?

While the consequences of bullying are very real – and often harrowing – some have questioned making it a criminal offence is appropriate. As noted in the Institute’s report:

‘The imposition of criminal liability is the most punitive response to bullying. The criminal law is censuring and stigmatising and can result in the deprivation of liberty.

The potentially harsh consequences associated with the enforcement of the criminal law suggest that it should be reserved for serious wrongdoing that cannot be dealt with in another way.

At a basic level, in order to justify a criminal justice response to bullying, the behaviour should be shown to be harmful and the criminal law should be shown to be able to make a contribution to dealing with the problem that other responses cannot make.’

Other submissions to the Institute argue that current laws against stalking and assault may already cover serious cases of bullying, and additional provisions are therefore unnecessary. The Director of Public Prosecutions noted the dangers of criminalising minor forms of bullying, which ‘are better dealt with through methods such as the development of better policies at educational institutes and workplaces.’

These sentiments have previously been echoed by the Chief Executive of the Australian Federation of Employers and Industries, Garry Brack, when the Federal Government conducted a parliamentary inquiry into workplace bullying in 2012. At that time, Mr Brack told the media:

‘If there are criminal incidents, there’s already a law there in the Crimes Act that can deal with this sort of stuff.

We don’t want to see an expanded piece of legislation that makes it more difficult for employers to deal with incidents between human beings in the workplace which at best are very, very difficult to deal with at any time.’

Yet the loved-ones of those who have succumbed to workplace bullying say that a proactive, preventative response is needed to prevent further tragedy – arguing that the threat of criminal sanctions will act as an effective deterrent.