In September 2010 the Victorian Government announced a $10.6 million eSmart program to tackle cyber bullying in every Victorian public school.
In October 2010, health and safety regulator WorkSafe Victoria released new guidance materials on bullying in the workplace . In November 2010, the Victorian Law Reform Commission commenced a review of the adequacy of existing laws for dealing with the most serious cases of bullying . The Commission was due to deliver its final report to government by December 2011 however the reference was withdrawn following the introduction of the Crimes Amendment (Bullying) Bill 2011 which amends the existing offence of stalking, whilst also extending it to cover ‘serious bullying’
Bullying has been on the increase, in schools, in workplaces and online. There has been a greater concern about bullying coupled with a greater focus on trying to tackle it, particularly since the egregious bullying which occurred in the tragic Cafe Vamp case outlined here. The case illustrated graphically how victims of bullying can suffer significant and irreversible damage. The new law has been dubbed Brodie’s law.
In the Cafe Vamp case, the victim, a young waitress Brodie Panlock, was subjected to severe and prolonged bullying and later committed suicide. The Panlock case was the catalyst for the legislative reform in which the perpetrators, being the employees of the cafe were dealt with under the Occupational Health and Safety Act 2004 (Vic) in the Magistrates Court.
Although the offenders were charged under certain provisions of this legislation, it was always open for the offenders to be charged under a provision of the Occupational Health and Safety Act which would have exposed them to criminal penalties for having committed an indictable offence.
s32 of the Act provides that a person has a duty not to engage in conduct which recklessly endangers persons at a workplace, by placing them at risk of serious injury. The penalty prescribed for such an offence for a person is imprisonement for five years.
This increased concern over bullying has led to the introduction of the Crimes Amendment (Bullying) Bill 2011 which broadens criminal law offences by extending existing laws dealing with stalking.
The Victorian Government didn’t want to tackle defining workplace bullying by introducing a new and specifically tailored offence for workplace bullying in the Bill.
Therefore instead it chose to expand the definition of the existing criminal stalking laws in an attempt to include the kinds of behaviours which are typical in workplace bullying. South Australia is the only state to have defined workplace bullying within occupational health and safety legislation.
The new cyberbullying legislation amends the Crimes Act 1958 in relation to the criminal offence of stalking. The law relating to cyberbullying has been extended so that it applies to all environments including workplaces. The legislation must commence operation by 1st January 2012 but may come into force earlier.
In relation to behaviour which satisfies the definition of ‘serious bullying’ penalties of up to 10 years imprisonement apply.
Currently the offence of stalking comprises behaviours such as following the victim, keeping them under surveillance or interfering with their property. The Bill criminalises additional kinds of workplace bullying behaviours under the new stalking laws.
A person, (the offender), now stalks another person (the victim) if they engage in a course of conduct which includes the following:-
- making threats to a person
- using abusive or offensive words to or in the presence of the victim
- performing abusive or offensive acts in the presence of the victim
- directing abusive or offensive acts towards the victim and acting in a way that could reasonably be expected to cause physical or mental harm, including psychological harm, to the victim. Harm includes self-harm.
A course of conduct involves engaging in contact with a person which could reasonably be expected to cause the victim to physically harm themselves.
A person can only be found to have breached stalking laws if it can be proven they engaged in stalking conduct with the requisite intention to cause physical or mental harm to the victim or of arousing apprehension or fear in the victim for their own safety or that of another person.
How do you prove a person has such an intention? A person will be considered to have such intention if they knew or ought to have understood, in all of the circumstances, that the conduct would be likely to cause the harm or apprehension.
‘Causing physical or mental harm‘ includes causing a person to engage in self-harm or have suicidal thoughts. This provision was directed at addressing the circustances which arose in the Cafe Vamp/Brodie Panlock case, where a person is bullied to such an extent that they commit suicide as a result.
The maximum penalty for a stalking offence is 10 years imprisonment. While the Victorian OHS Act currently provides for the imposition of significant monetary penalties over $200,000 this was seen as inadequate in the situation where the offenders’ horrific acts led to the death of a young girl.
The legislation applies to a situation where either the victim was in Victoria irrespective of where the relevant conduct occurred and the conduct was in Victoria irrespective of where the victim was situated.
Given current technology, in particular texting, email and social networking, and the potential to use technology to bully a person, it is foreseeable that offences will occur where either the victim or the conduct is outside of Victoria.
The immediate practical consequence of subsuming workplace bullying under stalking laws is that the offence can lead to a serious penalty of ten years of imprisonement. The victim of stalking can also obtain an Intervention Order under the Personal Safety Intervention Orders Act 2010 (Vic), which commenced operation on 5 September 2011, and replaced the intervention order system in Victoria that was previously administered under the previous Stalking Intervention Orders Act 2008 (Vic).
For an Applicant to obtain a Court Order, a Magistrates Court only needs to be satisfied to a civil standard, under the balance of probabilities, that the respondent has engaged in offending conduct.
Although workplace bullying is destructive to employees, employers and the economy and a significant problem in Australia, there is no large scale research which has been conducted on the incidence and impact of workplace bullying.
The lack of a uniform statutory definition makes it difficult to prevent and/or manage the problem. Now that workplace bullying has been accommodated under criminal law, employee victims will have access to another possible legal remedy in addition to seeking recourse under Occupational Health and Safety legislation or anti-discrimination law under which bullying type behaviour may be covered where it arises by virtue of a protected characteristic a victim possesses.
In any event the new legislation will force Employers to be more vigilant in trying to combat workplace bullying by putting into place risk management systems and education programs to monitor workplace bullying to reduce it’s incidence.
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