Bullying, Young People and the Law

Bullying, Young People and the Law Symposium
The Alannah and Madeline Foundation

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Opening remarks

Thank you for the introduction, and to the Alannah and Madeline Foundation for inviting me to be part of this symposium about the law’s response to bullying and cyber bullying.

I would like to acknowledge the traditional owners of the land on which we meet today, the Boonwurrung and Wurundjeri tribes of the Kulin Nation, and pay my respects to their elders past and present.

And I would like to acknowledge my co-panellists, and say that I am honoured to be sharing the panel with them.

It’s awful to think of a young boy receiving death threats from a child at school over his x-box, or students being driven to self-harm, and even suicide, by continuous taunts on Facebook and Twitter.

But these are the types of stories that came out of the Human Rights Commission’s BackMeUp Campaign – a video competition which encouraged kids to share their experiences of bullying and stand up for their peers. This showed that the scope of bullying has definitely widened, taking on new forms and becoming ever more insidious and covert.

The 6th World Congress on Family Law and Children’s Rights, held in Sydney earlier this year, endorsed a call for this symposium to face these issues and to enhance the protection of our young people from bullying. It is our collective role, as the advocates of Australia’s children, to focus on developing a framework that ensures young people feel genuinely protected from any type of harassment online, at home or at school.

But first, a little bit about my role.

I started as National Children’s Commissioner on 25 March this year. Under the Australian Human Rights Commission Act –my responsibilities include:

• making an annual report to the Minister and parliament on the rights of children
• promoting awareness and discussion of human rights of children
• undertaking research and educational programs on children’s rights
• and examining Commonwealth laws for compliance with children’s rights.

A key aspect of my role of course is promoting children’s voice and participation. Article 12 of the United Nations Convention on the Rights of the Child states that children have the right to express their views about matters affecting them, and that those views will be given due weight.¹

As part of this I have embarked on a national listening tour called The Big Banter.

During The Banter I have been listening to and learning from children and young people themselves, and their advocates.  I am asking them to help me identify the priorities for my work.

To do this, I have been visiting city and country areas in each state and territory and holding targeted focus groups with diverse groups of children, children’s advocates and with government. I have already spoken to several hundred children and young people (and some key adults) in the ACT, NSW, South Australia, Queensland, Victoria and Tasmania.

Already in the discussions I have conducted with children and young people, bullying, and particularly cyber bullying, has been raised as a serious issue. The prevalence of social media and increased access to mobile phones means that children and young people are exposed in unprecedented ways to both the opportunities and the risks this brings.

Research shows that 27 per cent of young people report they are bullied every two weeks or more, and about 1 in 10 Australian people experience cyber bullying on a regular basis.² Some figures indicate that frequency is far higher. Bullying not only affects the physical and psychological health of children, but it also violates their right to feel safe, respected and included. Research has shown that victims of bullying not only tend to dislike school and have higher levels of absenteeism, but they also tend to have low self-esteem, more interpersonal difficulties and are more likely to report higher levels of loneliness.³ Recent Australian longitudinal data highlights the ongoing consequences of bullying, with younger victims going on to report higher levels of depression symptoms later in life.⁴

This has been a constant topic when I have visited alternate schools. During a recent school visit, a young student said this to me about her placement at an alternate school:

The school I was at before had a no bullying policy, but they had no idea what was really going on. I told them but they didn’t believe me because they had a policy. So that’s why I’m here.

The United Nations Committee on the Rights of the Child has recognised bullying, including cyber bullying as a form of ‘mental violence’.⁵ This type of ‘mental violence’ can lead to children feeling unsafe at school, which can affect their right to an education.⁶  It can also violate their right to leisure and play by making them feel like they cannot spend time with their friends and enjoy themselves like everyone else. Further, cyber bullying can infringe young people’s right to privacy – young people who are cyber bullied can have their personal information put online or sent by phone for everyone to see.

Homophobic bullying has also arisen as an area of concern. The Commission uses the term homophobic bullying to be inclusive of bullying on the basis of sexual orientation, gender identity or intersex status. The rates of this type of bullying are disturbingly high. Research published in 2010 from Writing Themselves In 3 - the third national study on the sexual health and wellbeing of same-sex attracted and gender questioning young people - found that 61% of young people reported verbal abuse because of homophobia, 18% of young people reported physical abuse because of homophobia and 69% reported other forms of homophobia including exclusion and rumours.⁷ 80% of homophobic bullying is occurring at school. ⁸  Such treatment has been associated with many health and safety issues for these young people. For example, homophobic abuse was associated with feeling unsafe, excessive drug use, self-harm and suicide in young people.⁹

Another young man not in mainstream school, because of bullying he was subjected to after he came out as gay, told me that he was made aware of a Facebook page where contributors were asked to rate how gay other people were in relation to him.

Australia has no specific anti-bullying legislation, though some elements of bullying may fall under stalking, harassment and defamation laws. Commonwealth anti-discrimination laws also provide some protection against bullying, when people are bullied on the basis of their age, sex, race, disability or religion. Recent amendments to the Sex Discrimination Act will make discrimination unlawful on the grounds of sexual orientation, gender identity and intersex status in employment, education and the provision of goods and services.

Specific anti-bullying legislation is not a standalone solution, and it must be said that anti-bullying legislation is a controversial and complex area. Bullying is highly difficult to define, which presents a challenge for law-makers, and cyber bullying in particular presents problems as it can be indirect, covert and anonymous.

Canada provides one example of the complications related to legislative attempts to combat bullying. Proposed legislation in the Canadian provinces has been riddled by definitional issues and dogged by controversy, with different states failing to find common definitional grounds regarding the direct and indirect elements of bullying, and whether it must be a repeated act to trigger disciplinary action.¹⁰

In New Zealand, ground-breaking new legislation targeting cyber bullying will make it an offence to send messages or post material online that is grossly offensive, indecent, or knowingly false. Posting material of this kind will be punishable by up to 3 months imprisonment or a fine. The proposed law will also create a new offence of incitement to commit suicide, whether or not suicide results.¹¹

In the United States, federal bullying legislation has been introduced every year since 2003, but has not yet passed. Most US states however now have their own laws regarding bullying, many containing provisions based on sexual orientation, gender identity and gender expression following a spate of tragic suicides of LGBTI young people.

Broader ideological conflicts also come into play. The Canadian state of Manitoba’s proposed law requiring schools to allow students to set up gay-straight alliances has been met with significant opposition from religious leaders and some family groups. ¹²

There are no easy solutions. We need to bring about real, comprehensive change, not only in the behaviour of individuals but in the way communities respond to bullying. Bullying affects every part of the community, including the workplace. The recent amendments to the Fair Work Act, which give the Fair Work Commission anti-bullying powers, is a positive step in eliminating a culture of bullying in our communities.

Ultimately, in order to shape an appropriate response to this issue, the most important perspectives will be those of the young people themselves. Involving them in the discussions about how to tackle bullying is ideal.

A community-wide, youth-led approach is needed to combat bullying- involving teachers, parents, schools and children. An effective framework should involve the collaboration of governments, organisations and individuals to build best practices for dealing with and preventing bullying. Changes can be implemented both within policy and legal instruments, as well as through educational initiatives like workshops, training and open discussion about the effects and causes of bullying. Our focus should be on tolerance, knowledge and empowerment rather than punitive measures.

The Canadian federal government’s recent pledge to fund the Red Cross’s youth-led anti-bullying ‘Youth Take Charge’ project is a promising example, which will see 2400 young people trained to deliver anti-bullying workshops and presentations to over fifty thousand people in their communities.¹³ There have also been some positive initiatives at the national level in Australia. The Australian Government has developed the National Safe Schools Framework which aims to foster educational communities that are safe from harassment, aggression, violence and bullying. Significantly, the framework also recognises the importance of student participation in school anti-bullying and violence strategies.

The Human Rights Commission has been involved in setting up youth-led and more creative ways of combatting bullying. I am very proud of the Commission’s work over the last year to tackle cyber bullying in particular. As I mentioned earlier, our BackMeUp campaign ran throughout 2012 and was supported by the Alannah and Madeline Foundation.  It focused on the role of bystanders in addressing bullying and harassment within the online community. The campaign asked kids to be part of the solution, not the problem, by backing up victims of cyber bullying and taking precautions to protect their own safety.  We engaged thousands of kids in tackling bullying through the campaign, which was based around a video competition- showing that technology and social media can actually be a force for good. Over 100 kids aged 13-17 from each State and Territory in Australia entered our competition to submit their own film about backing someone up who has been cyber bullied, and their videos received over 56 000 views on Youtube.  In fact, it was so successful that we’ll be relaunching it on the 20th August this year, and I was honoured to be named one of this year’s Ambassadors. Such initiatives are important in encouraging all children, not just those who are victims of bullying, to get involved and support their peers.

Projects like these are vital in fostering an anti-bullying culture that stems not from fear of punishment but from a genuine sense of communal responsibility.

On my tour talking to kids one of the key messages emerging is that they want to live in a world free from aggression, violence and judgment and that they want people to show respect for one another.

We need to harness and build on these natural aspirations that children and young people have.

Thank you again for having me here today and I look forward to the opportunity to explore these issues further with my fellow panel members over the next couple of days.