Bullying is something done deliberately against a person or group of people to upset or hurt them or damage their property, reputation or acceptance by others. Bullying can be in person or online and can be obvious or hidden.
Other than for workplace bullying, there is no specific anti-bullying law or an offence of bullying or cyber bullying in South Australian or Commonwealth legislation. However, there are a range of criminal laws and civil laws which may be relevant in circumstances where bullying is occurring or has occurred.
The following sections set out these laws.
The Children and Young People (Safety) Act 2017 (SA) requires that prescribed organisations:
- develop policies and procedures to ensure child safe environments [s 114(1)(b)] and
- lodge a child safe environments compliance statement setting out their child safe environment policies and procedures [s 114(3)]
These policies and procedures must comply with standards and principles issued from time to time by the Chief Executive, Department of Human Services [s 145(a)]. The standards of care for ensuring the safety of children and young people include standards for addressing bullying by children within the organisation. The Principles of Good Practice issued by the Chief Executive of the Department of Human Services are available online.
A prescribed organisation must, at the request of a person in relation to whom the prescribed organisation provides, or is to provide, a service, produce for inspection a copy of the policies and procedures prepared or adopted [s 114].
Some bullying may constitute a criminal offence, for example, if the bully threatens or assaults the victim or uses the internet to harass or cause offence to the victim. For the particular conduct to be considered criminal it must satisfy all the elements of a particular offence.
The age at which a person may be held responsible under criminal law in South Australia is 10 years. There is a separate justice system for young offenders under the age of 18 years in South Australia and police have a wide discretion in the way they respond, including the use of cautions or laying a charge. For more information about police powers to question, search and seize property, see Questioning, search and arrest.
Depending on the particular bullying conduct, potential offences under South Australian law may include:
In relation to bullying occurring at school or between school students, there may be a number of things to consider, including the school's anti-bullying and complaints policies, disciplinary action the school may take, and whether any injuries have been sustained as a result of the bullying.
Depending on the particular bullying conduct, other potential civil action under South Australian law may include:
If serious cyber bullying is occurring, the Office of the eSafety Commissioner may also be able to investigate complaints, intervene to have cyber bullying material removed and issue civil penalties. Form more information, see Office of the eSafety Commissioner.
The Office of the eSafety Commissioner was established in 2015 to promote online safety. Initially established to protect and promote online safety for children only, the eSafety Commissioner's scope and powers have expanded under the Enhancing Online Safety Act 2015 (Cth) to cover adults as well as children, and include:
- a complaints handling service for young people experiencing serious cyberbullying [s 18];
- an ability to remove or require the removal of cyberbullying material from certain social media services and sites [ss 28; s 35];
- an ability to issue notices to individuals requiring them to remove cyberbullying material or to refrain from posting cyberbullying material online [s 42];
- an image-based reporting portal which provides reporting options, support and resources for victims of image based abuse;
- an ability to remove or require the removal of image based abuse material from social media services and sites [s 44D];
- an ability to investigate complaints about certain types of online content, pursuant to the Broadcasting Services Act 1992 (Cth); and
- an ability to issue civil penalties, and seek enforceable undertakings and injunctions for breaches of certain provisions of the Act.
More information can be located on the Office of the eSafety Commissioner's website.
For tips about cyber safety on social networking sites, search engines and on-line games see the Stay Smart Online website. The website contains information about protections against cyber bullying, how to report cyber bullying to in relation to popular internet sites as well as many other useful features, such as explaining information about privacy settings and who has access to social networking sites.
Powers to remove image-based abuse material
The eSafety Commissioner is empowered under the Enhancing Online Safety Act 2015 (Cth) to require the removal of certain image-based abuse material that is shared without consent, and in some instances to take action against the person(s) who shared the image or video without the consent of the person who is the subject of the image or video.
Any person depicted in an intimate image or video which has been shared without their consent can make a complaint to the eSafety Commissioner, as can certain authorised persons, such as a parent/guardian on behalf of a child who is under 16, or a parent/guardian of a person who has a mental or physical incapacity that renders them incapable of managing their own affairs [see s 19A].
Where consent has been given to share the intimate image or video, an objection notice may still be lodged with the eSafety Commissioner. This is different to a complaint [see s 19B]. An objection notice could be lodged, for example, where a person depicted in an intimate image or video initially consented to its sharing, but then changed their mind.
After a person lodges a complaint or objection notice, the eSafety Commissioner can issue a removal notice to the site where the intimate image or video has been published, to the hosting service provider, or to the individual who posted the image or video, requiring the image or video to be removed within 48 hours or within a reasonable time frame [s 44D(1)(g); s 44E(1)(g); s 44F(1)(h)]. Failure to comply with a removal notice may result in a civil penalty, enforceable undertaking or court injunction being sought, see Civil Penalties below.
The eSafety Commissioner can seek civil penalties in a number of circumstances, which can be enforced in the Federal Court or Federal Circuit Court of Australia. The penalties can be significant. The circumstances where a civil penalty can be sought, and the maximum amount that can be sought, are as follows:
- where a person has posted or threatened an intimate image of a person online without their consent [s 44B]. Maximum penalty is $105 000 for an individual or $525 000 for a body corporate;
- where a person, website, or hosting service provider has failed to comply with a removal notice issued pursuant to ss 44D, 44E or 44F [s 44G]. Maximum penalty is $105 000 for an individual or $525 000 for a body corporate;
- where a person has been given a written remedial direction, that is, has been required to take specific action to ensure they do not contravene section 44B again, but has failed to adhere to the direction [s 44K(3)]. Maximum penalty is $105 000 for an individual or $525 000 for a body corporate.
In circumstances where a person has breached section 44B, section 44G or section 44K, they may be given a formal warning prior to a civil penalty being sought [see ss 44C, 44H and 44I]. An infringement notice may also be issued for any breaches of those sections [s 46A(1)]. In addition to seeking civil penalties, the eSafety Commissioner is also able to seek an enforceable undertaking or injunction from the Federal Court or Federal Circuit Court of Australia [ss 47 and 48].
The sharing of intimate images may also be a criminal offence under either State of Commonwealth law. For information on criminal offences relating to image-based abuse, see Distribution of Invasive Images ('Revenge Porn').
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.