The adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capture cyberbullying
The Law Council strongly supports efforts to better ensure the online safety of children and adults. There are strong levels of community concern about the widespread nature of cyberbullying particularly given that it can cause significant psychological harm to victims. The Law Council emphasises however, the need for common understanding of conduct which constitutes cyberbullying, and the perpetrators involved, as a necessary basis for assessing possible law reform options in this area.
In considering the adequacy of existing offences in the Criminal Code Act 1995 (Cth) (Criminal Code) and of state and territory criminal laws to capture cyberbullying, the Law Council considers that the Australian Government needs have careful regard to certain guiding principles. These include a number of important human rights obligations as well as rule of law principles. Noting the tensions which may exist between the competing interests involved, the Australian response should seek to balance these interests in a manner which ensures that any limitations on individuals’ rights are necessary, reasonable and proportionate.
The Law Council does not support the introduction of a new federal offence for broadcasting assaults and other crimes via social media platforms. It considers that existing offences in the Criminal Code and state and territory are adequate to capture a range of serious conduct which could constitute cyberbullying. The utilisation of a civil penalty regime, the eSafety Commissioner’s powers and other less formal methods (be it school or mediation based) should be considered in less serious cases. Should this not be accepted and a new offence of broadcasting assaults and other crimes via social media platforms be introduced, the consent of the Attorney-General should be required before a person under the age of 18 could be charged with an offence. A penalty of 12 months imprisonment may be an appropriate penalty when compared with other telecommunications offences in the Criminal Code.
Further, the Law Council opposes any move to introduce an aggravated offence which is contingent upon harm to the victim. The Crimes Act 1914 (Cth) (Crimes Act) already provides adequate scope for the harm to a victim to be considered in the sentence imposed. However, the Law Council would not oppose a general increase to the maximum penalty for a section 474.17 Criminal Code offence, provided it did not go beyond a maximum of 5 years imprisonment.
You can read the full submission below.