The Convention on the Rights of the Child protects all children by outlining their specific rights. Bullying can have a negative impact on the enjoyment of a number of these rights.
Article 6: The right to life, survival and development
Bullying can slow a child’s development by negatively affecting their physical and emotional health and wellbeing. Being subjected to violence or harassment at a young age has been associated with long-term social, emotional and cognitive problems.
Article 16: The right to privacy
Each child has a right to have their privacy protected. Bullying can breach this right when personal information or photos are made public.
Article 19: The right to be protected from violence
Children have the right to be protected from all forms of physical and mental violence, injury or abuse. The Committee on the Rights of the Child has recognised bullying, including cyberbullying, as a form of mental violence.
Article 24: The right to health
Bullying can affect a child’s right to enjoy the highest attainable standard of health by causing psychical and psychological harm. It may also lead to mental health issues such as anxiety and depression.
Article 28: The right to education
A child’s right to education may be hampered by bullying. Bullying often leads to social anxiety and a high degree of absenteeism in affected children.
Article 31: The right to leisure and play
Bullying often occurs when young people play or in social environments. This means that a child’s right to a safe environment in which to enjoy leisure and play can be negatively affected by bullying.
Relevant rights for adults arise, for example, in the two International Covenants.
International Covenant on Civil and Political Rights
Article 9(1): the right to security of the person
Everyone has the right to … security of person.
This right means that everyone has a right to personal security, and freedom from personal attacks and harassment. The worst forms of bullying can threaten the enjoyment of this right.
International Covenant on Economic Social and Cultural Rights
Article 7: the right to just and favourable conditions of work
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular …
(b) Safe and healthy working conditions …
Article 12: the right to health
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. …
Specific anti-bullying rights arise for members of vulnerable groups from the issue-specific treaties such as the Convention on the Rights of People with a Disability. For example, Article 16 thereof recognises the rights of people with a disability to freedom from exploitation, violence and abuse.
Australia has no specific anti-bullying legislation, though some elements of bullying may be encompassed by stalking, harassment and defamation laws. Discrimination legislation, such as the Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Sex Discrimination Act 1984, provides protection for those bullied on the basis of a protected ground such as race or disability.
Under the Fair Work Act 2009 (Cth) a person can seek redress for bullying under the protections in Part 3-1. In addition to this, an employee who reasonably believes he has been bullied at work may apply to the FWC for an order to stop the bullying under s 789FF.
The Commonwealth Criminal Code Act 1995 makes cyberbullying a crime if it involves menacing, harassing or causing offence to someone (Section 474.17) or making a threat against them (Section 474.15).
The Government developed the ‘National Safe Schools Framework’ which aims to foster educational communities that are safe from bullying and encourages student participation in forming anti-bullying strategies.
One of the first successful cyberbullying convictions in Australia occurred in New South Wales in 2012. Ravshan Usmanov was convicted of publishing an indecent article under section 578C of the Crimes Act 1900 (NSW). Usmanov had posted nude photos of a former girlfriend on a social networking site as a form of revenge.
However, very few bullying or cyberbullying cases have been successfully prosecuted in Australia. David Vaile, executive director of The Cyberspace Law and Policy Centre at the University of NSW points out that crimes conducted online are often taken less seriously than physical offences.
All Australian jurisdictions have anti-discrimination laws that make bullying that constitutes sexual and racial harassment unlawful. See our video and material on discrimination here.
The Victorian Charter of Human Rights and Responsibilities reinforces the right not to be bullied. S 21(1) states: “every person has the right to … security”. In addition to this, s17(2) states: “every child has the right, without discrimination, to such protections as is in his or her best interests and is needed by him or her by reason of being a child.”
Brodie’s Law (Crimes Amendment (Bullying) Act 2011) makes serious bullying a criminal offence by extending the application of the stalking provisions in the Crimes Act 1958 to include behaviour that involves serious bullying. The offence of stalking, and therefore conduct that amounts to serious bullying, carries a maximum penalty of 10 years imprisonment.
The anti-stalking provisions in Section 21A of the Crimes Act 1958 also mean that bullying and cyberbullying can be prosecuted. Stalking includes any course of conduct that involves, for example, using abusive or offensive words to another person, contacting them or acting in a way that could reasonably be expected to cause them physical or mental harm, including self-harm.
Victorian courts heard a cyberbullying case for the first time in 2010. Over the course of several months, Shane Gerada had sent more than 300 threatening text messages to Allen Halkic, who later took his own life. Gerada was convicted of one count of stalking and sentenced to an 18 month community based order. Magistrate Peter Reardon found that Gerada never intended to drive Halkic to commit suicide but emphasised the need for young people to be aware of the consequences of cyberbullying.
New South Wales
There have been several cases concerning bullying put before the NSW courts. Under the Work Health and Safety Act 20111 (NSW), workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety (see ss 17, 19- above). Examples of such behaviour include:
Offensive language or comments
Deliberately excluding someone from workplace activities
Withholding information that is needed for work
In 2007 Nationwide News Pty Ltd was found directly liable for the psychiatric harm suffered by one of its employees due to severe and prolonged bullying that had included physical threats and racial abuse.
In the case of Gregory v New South Wales, a student won in a claim against his school after teachers failed to heed the victim’s complaints of serious instances of offensive name calling and physical exclusion from shared spaces.
An employee of Peakhurst Bowling and Recreational Club was awarded damages after sustaining psychological damage due to bullying carried out by her workplace supervisor. For example, she had been told on numerous occasions that her employment was precarious, causing her much psychological distress, and he had pressured her to resign from a trade union.