Australia: Could regulatory reform reduce bullying in Australian schools?

Last Updated: 10 November 2012
Article by Kristen Lopes

In brief - Bullying is pervasive in Australian schools and the current regulatory framework is inadequate

Research suggests that bullying in schools is evolving: it is becoming a group phenomenon, where several students bully one individual. In addition, social media has provided a new forum for bullying that has increased the reach of bullying incidents.

Bullying has a high cost and can have a lifelong negative impact on victims

Recent research suggests that bullying in Australian schools is an issue of significant concern.1 Bullying imposes significant costs on all levels of society, with the Productivity Commission recently suggesting that the total cost of bullying in Australia is between $6 billion to $36 billion dollars annually.2

Bullying at schools can have a lifelong negative impact on a victim of bullying where victims of bullying often struggle with anxiety and depression.3 Students who have been bullied also frequently report lower levels of connectedness to school, higher levels of loneliness and report experiencing peer relationship problems.4 In addition, research suggests that there may be a link between being bullied and academic difficulty.5

Bullying can be prevented with clear guidelines, appropriate responses to incidents and support of victims

However, research also suggests that children are not born bullies but rather they engage in bullying behaviours within certain contexts and that many children do not understand when their teasing and jokes have gone too far, nor do they understand the difference between public and private digital spaces.6

Arguably then, bullying behaviours can be prevented through clear definitions of what is appropriate behaviour; through an appropriate response being taken when bullying behaviours are engaged in; and through providing support to those who have been victims of bullying. A consistent approach to achieving these outcomes could arguably be best achieved through regulatory reform.

Prevalence of bullying in schools

Determining the prevalence of bullying in schools is difficult given the lack of a consistently-applied definition of bullying behaviours. Physical incidents of bullying are easer to identify; however, non-physical incidents, described as covert bullying, (often including exclusion or social humiliation) are often difficult to detect and quantify.7

Despite the difficulty in precisely determining the prevalence of bullying, research undertaken in Australian government, Catholic and independent schools in 2009 suggests that bullying in schools is indeed pervasive.8 The majority of students in the study who reported being physically bullied also reported being bullied covertly (which was defined in the study as "bullying not observed by adults").9 This suggests that the level of bullying occurring in schools may be higher than the incidents observed or reported.

Cyber bullying creates permanent record and provides bully with anonymity

Further research suggests that bullying behaviours are evolving in two troubling ways. First, it is suggested that bullying is becoming more of a "group phenomenon" where a group of students may bully one individual.10

Second, it is suggested that technology has lead to an increase in bullying, namely cyber-bullying, where social media has provided a new forum for bullying that has increased the reach of bullying incidents. An incident of bullying can be broadcast publicly through the use of social media.11 Also, unlike a spoken word which remains only in the victim's memory, online bullying is permanent and provides the bully with anonymity.12

Bullying incidents filmed and posted on YouTube

This troubling twofold development in bullying behaviour is illustrated by way of a recent assault on a teenaged girl by two other teenaged girls. The physical assault consisted of two girls repeatedly kicking a girl and punching her in the face until she fell on the ground. This incident was watched by approximately one dozen students.

In addition, the incident was recorded by one of the bystanders and was posted on YouTube for "entertainment" value. An anonymous bystander notified the police of the incident. Although YouTube removed the video clip, it had already filtered through to a number of viewers who saved the video clip. Every time the incident is viewed, the bullied girl is re-victimised.13

Initiatives to combat bullying - the National Safe Schools Framework

Recognising that bullying is a significant issue, the Commonwealth overnment has endorsed an anti-bullying initiative, the National Safe Schools Framework (NSSF).14 The NSSF is an integrated national policy aimed at promoting student safety and at the prevention of bullying and early intervention in incidents of bullying at schools.15 The NSSF was first implemented in 2003 and was recently modified in 2011 to include cyber-bullying.16

The NSSF has made online anti-bullying materials available to schools across Australia. The materials include guidelines, checklists and template documents to allow schools to develop and implement policies to prevent and to respond to bullying. However, although it is recommended that schools participate in and implement the NSSF initiatives, it is not mandated that schools do in fact participate.

NSW Department of Education implements anti-bullying policy

As part of the NSSF, in the sate of New South Wales, the NSW Department of Education and Training has implemented an anti-bullying policy, Bullying: Preventing and Responding to Student Bullying in Schools Policy in March 2011.19 The policy defines bullying behaviour, which includes cyber-bullying.

It requires that principals ensure that an anti-bullying plan is implemented in their schools and that school staff respond to bullying incidents in the manner prescribed by that plan. The policy requires schools to develop protection, prevention, early intervention and response strategies for bullying.20

In addition, schools are required to conduct an annual audit of the school's needs and existing anti-bullying strategies to determine whether the strategies are effective or require modification.21

Other programs and initiatives to combat bullying

In addition in August 2009 the Commonwealth government introduced a $3 million pilot project, Generation Next Blog, in 150 schools across Australia. The project is aimed at educating students, as well as monitoring the prevalence and impact of cyber bullying.22

More recently, on 19 June 2012, the Australian Human Rights Commission launched its "Back Me Up" campaign to encourage young people to support individuals targeted by cyber bullying.23 The aim of the campaign is to combat cyber bullying through raising awareness amongst parents, guardians and teachers.

Further independent initiatives and pilot programs have also been undertaken in schools across Australia to combat bullying. By way of illustration, in the state of NSW approximately twenty primary schools in the Hunter and Central Coast districts are involved in a pilot program which aims to build a "bully-free culture".24 This program was launched on 21 March 2012 by Interrelate Family Centres. The program teaches students to identify forms of bullying and how to develop strategies to deal with bullying.

Creating a Safe Supportive Environment (CASSE) has also initiated a project to develop safe and supportive environments in schools. CASSE's approach seeks to address the underlying causes of bullying.25 CASSE's approach is based on the CAPSLE model developed by Twemlow, Fonagy and Sacco which promotes understanding the dynamics of bullying. CASSE is scheduled to run a pilot project involving ten schools in 2012.

How consistent is the approach to preventing bullying and managing incidents?

The development and implementation of awareness programs, anti-bullying initiatives and pilot projects across Australia is a positive step towards combating bullying in schools. However, at issue is whether a consistent approach to preventing bullying and managing incidents of bullying is being adhered to across these intitiatives.

In addition, at issue is whether a consistent definition of bullying is being used across the various initiatives being undertaken. Further at issue is whether there is an adequate level of commitment across individual schools in the implementation of these initiatives.

Gaps in the current regulatory framework in Australia

Despite recent harmonisation of work health and safety legislation across Australia, the current work health and safety legislation does not expressly define bullying behaviour, nor does it require employers to control the risks to psychological health of employees.

A Code of Practice with respect to Preventing and Responding to Workplace Bullying was drafted by Safe Work Australia in September 2011. However, to date, it has not been adopted.26

Bullying is defined in the draft Code of Practice as, "repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety".27 This definition solely deals with bullying in the workplace and is limited in that it does not expressly deal with the education sector. (For more information please see our earlier article, Legislative responses to workplace bullying - the Preventing and Responding to Workplace Bullying Code of Practice.)

Part 5A of the Education Act 1990 (NSW) deals with health and safety risks at schools arising from student behaviour. However, this provision does not expressly require schools to control the risks to psychological health of students or staff working in the government school system, nor does it contain a definition of bullying behaviours in the definitions section. It is submitted that neither the WHS Act nor the Education Act contains a satisfactory framework for the prevention of bullying in schools.

On a broader level it is submitted that there is a gap in the current regulatory framework in Australia in terms of the prevention of bullying in schools. At the current time, a victim of bullying may seek compensation through the common law courts where a victim can establish that they have suffered harm as a result of bullying behaviours.

Seeking redress in the Human Rights Commission or Fair Work Australia

In addition, a victim may seek redress in the Australian Human Rights Commission (HEREOC). However, anti-discrimination and harassment laws are limited in that they can only provide a remedy for bullying behaviour which relates to discrimination based on disability, race, sex or sexual harassment.

Alternatively, a victim of bullying may seek redress in Fair Work Australia. However, the general protections provisions of the Fair Work Act 2009 similarly respond to bullying complaints in limited circumstances, for example, where workplace bullying occurs as a result of an employee exercising a workplace right.

Lastly, the Crimes Act 1900 (NSW) provides protection to a student or staff member who is assaulted, harassed or intimidated at a school.28 However, protection is only available if the incident occurs on school property.

The second part of this article, to be published next month, analyses the anti-bullying initiatives and legislation implemented by the government of Ontario, Canada and compares these to the Australian situation.

Footnotes

1 Child Health Promotion Research Centre (CHPRC), Australian Covert Bullying Prevalence Study: Result of a quantitative study of students and staff (May 2009) at http://www.deewr.gov.aw/schooling/nationasafeschols accessed at 30 August 2012.

2 Productivity Commission, Performance Benchmarking of Australian Business Regulation: Occupational Health and Safety (2010), p. 279 - 288.

3 Mitchell, Peter John, The limits of anti-bullying legislation: A cross-Canada assessment of what legislation can and cannot do, Institute of Marriage and Family Canada (May 2012) p 3.

4 Child Health Promotion Research Centre (CHPRC), Australian Covert Bullying Prevalence Study: Result of a quantitative study of students and staff (May 2009) at http://www.deewr.gov.aw/schooling/nationasafeschols accessed at 30 August 2012 at 26.

5 English, Eva, Liability for bullying: Holding schools accountable, (2011) 19 Tort L Review 41 at 42.

6 Shariff, Shaheen, Associate Professor, McGill University, Center for Internet and Society, Stanford University Law School.

7 Mitchell, Peter John, The limits of anti-bullying legislation: A cross-Canada assessment of what legislation can and cannot do, Institute of Marriage and Family Canada (May 2012) p 3.

8 Child Health Promotion Research Centre (CHPRC), Australian Covert Bullying Prevalence Study: Result of a quantitative study of students and staff (May 2009) at http://www.deewr.gov.aw/schooling/nationasafeschols accessed at 30 August 2012 at 22.

9 Child Health Promotion Research Centre (CHPRC), Australian Covert Bullying Prevalence Study: Result of a quantitative study of students and staff (May 2009) at http://www.deewr.gov.aw/schooling/nationasafeschols accessed at 30 August 2012 at 21.

10 English, Eva, Liability for bullying: Holding schools accountable, (2011) 19 Tort L Review 41 at 41.

11 Mitchell, Peter John, The limits of anti-bullying legislation: A cross-Canada assessment of what legislation can and cannot do, Institute of Marriage and Family Canada (May 2012) p 3.

12 English, Eva, Liability for bullying: Holding schools accountable, (2011) 19 Tort L Review 41 at 42.

13 Shariff, Shaheen, Associate Professor, McGill University, Center for Internet and Society, Stanford University Law School.

14 Terms of reference of the House of Representatives' Education and Employment Committee's Workplace Bullying Inquiry at http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees dated 8 August 2012.

15 Child Health Promotion Research Centre (CHPRC), Australian Covert Bullying Prevalence Study: Result of a quantitative study of students and staff (May 2009) at http://www.deewr.gov.aw/schooling/nationasafeschols accessed at 30 August 2012 at 19.

16 Ministerial Council for Education, Early Childhood Development and Youth Affairs, National Safe Schools Framework (Revised 2011) at http://www.safeschools.deewr.gov.au

17 http://www.safeschools.deewr.gov.au

18 NSW Department of Education and Communities, Bullying: preventing and responding to student bullying in schools guidelines at http://www.det.nsw.edu.au at 3.

19 NSW Department of Education and Communities, Bullying: preventing and responding to student bullying in schools policy at http://www.det.nsw.edu.au

20 NSW Department of Education and Communities, Bullying: preventing and responding to student bullying in schools guidelines at http://www.det.nsw.edu.au at 4.

21 NSW Department of Education and Communities, Bullying: preventing and responding to student bullying in schools guidelines at http://www.det.nsw.edu.au at 6.

22 http://www.generationnext.com.au//2009/08 accessed on 08/08/2012

23 http://www.humanrighs.gov.au/about/media/news/2012/55_12.html

24 ABC News, Pilot program aims to tackle schoolyard bullying at http://www.abc.net.au/news/2012-03-12 accessed on 08/08/2012.

25http://www.casse.org.au/about-us accessed on 08/08/2012.

26 Safe Work Australia, Preventing and Responding to Workplace Bullying, Draft Code of Practice (September 2011)

27 Safe Work Australia, Preventing and Responding to Workplace Bullying, Draft Code of Practice (September 2011) at 4.

28 Crimes Act, 1990 (NSW), section 60E.

Kristen Lopes
kxl@cbp.com.au
Workplace relations
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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