SCHOOL BULLYING AND THE LAW
Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of bullying law before acting or relying on any of its content.
WHAT IS BULLYING?
Both public and private schools in NSW typically have policies and practices in place to prevent and deal with bullying. Government schools follow the Bullying: Preventing and Responding to Student Bullying in Schools Policy which reinforces the firm rejection of all forms of bullying. It details the levels of implementation and response mechanisms that schools must provide against bullying.
It defines bulling as the:
Repeated ‘verbal, physical, social or psychological behaviour that is harmful’;
‘Misuse of power’ by individuals or groups towards others; and
Bullying through ‘information and communication technologies’ (cyberbullying);
It can involve:
A variety of responses such as ‘humiliation, domination, intimidation, victimisation’; and
Broader forms of harassment based on ‘sex, race, disability, homosexuality or transgender’.
It is not:
Although the potentially devastating impacts bullying can have on victims has not changed, the way in which bullying takes place has changed markedly with the advent of social media such as Facebook and Instagram. Whereas school students might be victimised during the normal school day (9am to 3pm) in the past, social media now allows bullying to be a 24 hour phenomenon. Unfortunately, this can mean very little respite for those affected by it.
Furthermore, the scope for bullying to ‘go viral’ through the use of the like button, sharing and other dissemination on social media means humiliating, intimidating and harassing forms of bullying can be very difficult to contain. So what is the legal response?
BULLYING AND DUTY OF CARE
Bullying may give rise to claims of negligence where there is a failure to exercise reasonable care and skill. The Civil Liability Act 2002 (NSW) provides the principles of duty of care that a school must observe in order to negate claims of negligence towards their pupils in New South Wales. The general principles under s 5B provide that a person is not negligent when failing to take precautions against risks of harm unless:
The risk was foreseeable;
The risk was not insignificant; and
In the circumstances, a reasonable person in the same position would have taken precautions.
The ‘reasonable person’ test is considered against:
The probability of harm occurring if care is not taken;
The likely seriousness of the harm;
The burden of taking precautions to avoid that risk’; and
The ‘social utility’ of activities that create risks of harm.
‘Harm’ is defined in the Act under s 5 to include:
Primary Decision: Oyston v St Patrick’s College  NSWSC 269
A claim in negligence was brought against a Sydney school, alleging continued exposure to bullying and harassment by pupils towards the plaintiff over a three year period, resulting in psychological harm.
The school had a comprehensive bullying policy in place that underwent constant review, meeting its duty of care regarding student behaviour. The existing policies – Student Conduct – Polices & Procedures and Personal Protection & Respect Policy – indicated a consideration on behalf of the school as to the concerns surrounding bullying in the education environment.
The action and inaction taken by the school in response to reports of bullying and harassment by the plaintiff included:
Referral of the plaintiff to the school counsellor;
No mediation with the bullies was undertaken;
Placing one antagonist on a ‘behaviour contract’ but this was breached and the consequence of expulsion was not carried out; and
Filing incident reports under the ‘Bullying Register’ but this was not implemented.
The primary judge found, that the psychiatric injury suffered by a victim of bullying meets the ‘foreseeable’ and ‘not insignificant’ categories of s 5B of the Civil Liability Act. Further, it is insufficient to discharge a duty of care through policy alone, particularly where the school is allowed wide discretion. Here, the school failed to implement its own policies, effectively breaching its duty of care to the Plaintiff.
On Appeal: Oyston v St Patrick’s College  NSWCA 135
On appeal, the Court accepted that the risk of psychological harm from the bullying was both ‘foreseeable’ and ‘not insignificant’ within the meaning of s 5B of the Civil Liability Act. Accordingly, the actions or steps taken by the school were not seen as a reasonable response to this level of risk towards the plaintiff. This was based on the following:
The school did not follow its own policies;
A failure to properly investigate allegations of bullying;
Tobias AJA noted that ‘empty threats’ of expulsion as a response were ‘of no use’.
The decision in Oyston reveals a need to foster an anti-bullying culture in schools through both policy and effective implementation. Schools owe their pupils a duty of care, and will be liable for the wrongdoing of others, including actions between students in bullying matters. See also: New South Wales v Lepore  212 CLR 511.This is not necessarily strict as the case affirms that measures taken need only be reasonable to prevent harm in individual circumstances. It is in cases where bullying or harassing behaviour is made aware to the school, however, that anti-bullying polices must be implemented in order to ensure a duty of care is not breached.
Cyberbullying has seen modern technology such as the internet and mobile phones used to transmit messages of an intimidating or threatening nature. The prevalence of cyberbullying in Australia has seen the establishment of an Office of the Children’s e-Safety Commissioner. At the time of its announcement, it was said that of the $10 million of funding to be received by the e-safety Commisioner, $7.5 would go towards assisting schools gain access to accredited online safety programs.
While there are no specific cyber offences in Australia (at least at the time of writing), a mixture of existing criminal offences may serve to provide guidance of rights and responsibilities in this area.
The Reach of Messages
The potential for significant reach and dissemination has been alluded to above. A bully in the online environment can go undetected through the creation of fake online profiles and sending anonymous messages. This means that the subject of the hurtful content will often be confronted whenever they visit popular sites like Facebook or Google. This can result in feelings of self-blame, hopelessness, loneliness, depression, fear, confusion, and shame.
Where does it fit in with Australian Criminal Law
At the time of writing, although there are no specific cyberbullying offences in Australia, a number of criminal laws can be used to charge cyberbullying offenders.
Many would know that the criminal law in NSW treats children differently (because of their young age, immaturity and the need for rehabilitation) differently to the way in which it treats adults. Thus, those under 10 years will not be liable for their actions, while those aged 10-14 will only be liable where it can be proven beyond reasonable doubt that they understood that they should not have committed the offence. Those over 14 can be criminally liable.
The Criminal Code Act 1995 (Cth) provides an offence involving the misuse of telecommunication services. This is useful due to the abuse of internet and phone services involved in acts of cyberbullying.
Section 474.17 makes it an offence to use carriage services (e.g. a telephone, or internet) in a way that is menacing, harassing or offensive, according to the reasonable person test. This may be through explicit content in communications, or implicitly inferred through types of use (such as multiple website postings).
Section 474.15 creates the offence of using a carriage services, including the internet, to threaten to cause harm or kill. Such threats may be directed at either the recipient of the messages or another person entirely. The offence is established where the bully intends the recipient to fear the threat will be carried out. There is no need to prove whether the recipient actually fears the threat.
Also, the AVO system in NSW can operate to stop one party from sending abusive or bullying messages to another.
In New South Wales, s 60E of the Crimes Act 1900, as amended following the commencement of the Crimes Amendment (School Protection) Act (NSW), provides a specific offence directed at bullying in schools. Specifically, it is an offence to ‘assault, stalk, harass or intimidate any school student or member of staff of a school, while the student or member of staff is attending a school’. Two important things to note about this section:
The terms ‘assault’, ‘stalk’, ‘harass’, or ‘intimidate’ are not defined under the Act. However, upon their natural meaning, they could encompass cyberbullying.
A key limitation of this provision is that it is limited to acts that take place on school premises, and would therefore not cover cyberbullying which occur elsewhere.
Further, each state and Territory have offences which mirror Commonwealth threat provisions which may be useful where cyberbullying does not result in physical injury, but rather in fear of personal violence. In NSW, s 31 of the Crimes Act 1900 provides an offence to maliciously send documents that threaten to kill or inflict bodily harm.
By Sebastian De Brennan, Barrister, firstname.lastname@example.org
 See Crimes Act 1914 (Cth), s 4M; Criminal Code Act 1995 (Cth), s 7.1; Children (Criminal Proceedings) Act 1987 (NSW), s 5.
 See Crimes Act 1914 (Cth), s 4N; Criminal Code Act 1995 (Cth) s 7.2; Children (Criminal Proceedings) Act 1987, (NSW), S 3.
 S 60D(2).
By Sebastian De Brennan, Barrister: email@example.com
 New South Wales v Lepore  212 CLR 511.