Legislative Council Wednesday 18 September 2019

Ms FORREST (Murchison) - Mr President, as other members have mentioned, this bill implements the Government's commitment to amend the Criminal Code to make serious cyberbullying a criminal offence.

There will be some who have and will say it does not go far enough.  Some will say it goes too far, so somewhere in the middle is the balance.  This is a difficult area to legislate in.  Bullying, particularly cyberbullying, is so insidious.  It happens almost behind the scenes and you only actually see the results of it at times.

In the days when I was at school, bullying in the playground was much more physical or verbal where abuse was called out loud so everyone got to hear it, not only the intended victim.  Now, no-one else might see it, and parents are often very unaware of the nature of some of the comments that some of their children may experience.

It is important to make the point here, this is not only about children; this is about adults and the behaviour of adults.  Some of the worst behaviour we see is with adults.

We all have our own opinions on things and we are in a position where we are more or less paid to have opinions here.  We exercise that right, as we have to, and as the member for Launceston referred to, sometimes our opinion does not sit well with a sector of the community.  It may not be particularly the people who have elected us; it could be someone from quite outside that area. 

It does not stop them from feeling they have a right to criticise.  I am quite happy with being criticised for decisions.  I have said to some of the people I represent directly, the people of Murchison, that if they disagree with a decision I make, I am very happy to meet with them personally and talk to them about how I made the decision, why I made it and what information I had that assisted me in that process.  Often, I have information that they do not have access to.

I have not been subject to some of the appalling social media that we have seen directed at our Speaker in this parliament.  Some of that has been absolutely disgraceful.  You do not have to agree with her; you do not have to support her.  You can make your point without using the language and the repeated attacks on her as an individual.  That is not acceptable in any frame.

The member for Launceston said we expect this.  No, we do not and we should not.  We should not accept this; we should not tolerate it or say, 'oh well, it is one of those things you do in the job'.  No, because we are condoning it by doing that.

We need to stand up and say 'this is not okay'.  When you see it happening to a colleague, say so.  Say 'that is out of line, that is not okay'.  We have all had derogatory comments put on our Facebook page.  As the former president used to say, ignore it, but do not respond.  I do not think you can ever ignore it because once you are aware of it, it has impacted you in one way or another.

Mrs Hiscutt - And you cannot unsee it.

Ms FORREST - That is right, you cannot unsee it.  I do not engage with them unless there is a point of clarification or a legitimate question they have asked in amongst all the other guff.  The interesting thing is that what I have found - and I know this is not everyone's experience - but I have found that the people who support me come out pretty quickly on my social media and back me up.  That is what we need to see people doing.  That is what I am saying we should do for our colleagues and anyone else in a leadership position who is being trolled, or being cyberbullied, to say 'it is not okay'.

I would ask why do we have to be tough and pretend this does not have an impact when it does?  We have to show a bit leadership in this and not say, 'oh, that is just part of the job'.  It should not be part of anybody's job to put up with revolting cyberbullying in any circumstances, in any workplace, in any school, in any setting.

Mr Valentine - They would not say it to your face.

Ms FORREST - Some of them might, I do not know.  They have not done that.  In some places they might.  At least then you can have a conversation with them.  At least then you can engage.  With cyberbullying there is no direct engagement.

Mr Valentine - It is there forever.

Ms FORREST - It is there forever.  Facebook, or whatever, can take it down if it is really offensive, but it is still being seen.  It is still there.  If someone has taken a screenshot, well it is there forever.  It is still there forever anyway, as we know.

As leaders in this state, we need to show a great deal of leadership, to take a stand on that whenever we have the opportunity.  If we say, 'oh well, it is okay in this job', then what is that message we are sending?  It is not okay in this job.  It is not okay in any job.  It does not mean I am saying people should not have a right to voice their opinion; they can.  It is how you do it and the language you use.

I do not know if anyone watched the first Adam Goodes film, The Final Quarter?  That was an example of harassment and some of the comments made by commentators like Andrew Bolt, Sam Newman, Miranda Devine and Eddie McGuire - and I name them because they were appalling and disgraceful.  I feel the treatment Adam Goodes, an Australian of the Year, put up with is unacceptable.  That was not cyberbullying.  That was outright in your face on mainstream media bullying.  We cannot accept it.  We have to call it out, and have to say it is not okay.

I know other members have mentioned this.  I am sure we have all had people in our office at different times, particularly parents of young people who are experiencing bullying and asking, what can we do?  Pleading with us for something that can give some weight to it.

Then there is the other side of the coin that we do not want to criminalise young people unnecessarily.  Finding that balance is not easy and it is difficult.  This bill does try to strike that balance - serious cyberbullying.  It is difficult to define that and nail it down because it is quite nebulous and it is difficult.

I do intend to support the bill. 

I want to read from the letter from YNOT because I think it is important the voice of YNOT is heard in this, even though some of us may not agree with some of the points raised.  It is important that we actually understand the views behind some as to why we should not be going down this path in terms of the criminalisation of young people.  I will not read all of it but I will read some sections of it.  This was received on 31 January this year, and it was to the director of the Department of Justice, commenting on the bill.  They talk about how they appreciate the opportunity to make a submission and they applaud the Tasmanian Government's commitment to eliminating bullying within our communities and acknowledge the serious and adverse effects bullying can have on the health and wellbeing of young people. 

However, YNOT holds grave concerns for the potential impact this Bill will have on the lives of young Tasmanians. 

YNOT is opposed to the amendments set out in this Bill.  The reasons for which are identified below. 

They then talk about YNOT being the youth representative peak body, which I am sure most of us would be aware of, representing people aged between 12 and 25.  They are not-for-profit and work collaboratively with Tasmanian young people, the youth sectors and all levels of government to ensure the voices of our stakeholders are heard.  I am not sure to what extent they consulted with young people in preparing this, but we cannot ignore these aspects of concern.

Under their comment, it says -

YNOT is concerned that bullying and cyber bullying have not been defined in this Bill.  We support the view that cyber bullying is an extension of traditional bullying.  However there are unique characteristics that distinguish cyber bullying from traditional face to face bullying.  This includes but is not limited to the new numerous online platforms that can be used, the explicit or hidden nature of cyber bullying, the ability for cyber bully material to reach a wide audience quickly, and evolving technology.

YNOT acknowledges the complexity in defining bullying and cyber bullying.  However, ambiguity with regard to definitions has the potential to cause confusion amongst young people as to what constitutes bullying and cyber bullying, particularly in, as it relates to criminal responsibility. 

There is no agreed universal definition of cyber bullying in Australia.  The need to clearly define cyber bullying is recognised at a federal and state level, particularly with regard to law reform and public policy.

YNOT supports the Law Council of Australia's view that a common understanding of behaviour which constitutes cyber bullying is essential in assessing possible law reform options in this area.

The need for an agreed universal definition of cyber bullying that recognises the complexity of the issue was also recommended by the Senate Legal and Constitutional Affairs References Committee in 2018. 

It is essential that young people understand the boundaries as to what behaviour is considered unacceptable and unlawful with regard to cyber bullying.  If clear boundaries are not established there is the risk that more people will be exposed to the criminal justice system.  A criminal offence requires specific and certain definitions to establish boundaries of criminal responsibility.

That is the thrust of that point.

This matter was raised in the briefings and addressed in other reports by the Tasmania Law Reform Institute.  We were told in briefings and through the Tasmania Law Reform Institute that it is difficult to define as such.  There is some description of what it is like in the bill rather than a straight-out definition, and the TLRI report did not recommend a definition because it is difficult to define in a legislative way.  They have chosen to put some framework around what it actually is.

I understand that, because what really negatively impacts one person, young or older - it does not matter - may not have the same effect on somebody else, so it is really the impact on the person and you cannot define that either.  Having looked at that and at how the legislation before us seeks to deal with this, it is probably the best process.  Otherwise, we could end up being very prescriptive if something not quite defined happens and does not fit, even though it is causing an individual enormous harm.

The other point is cyberbullying is a social issue.  YNOT believes legislative reform that takes a punitive approach to bullying is not the most effective method of intervention for young people.  The best way to deal with bullying behaviour is to prevent it.  They go on to talk about the development of the adolescent brain, which is all-important to consider.

Again, the approach taken here is that criminalisation of bullying behaviour is only for the very serious and really high-end instances of bullying.  Using other mechanisms like cautions and, I hope, education programs predominantly would be the most effective prevention measure.  We should be aiming to prevent it and come back to my original comments that if we accept and condone it because it is part of our job, then we are part of the problem.  If we do not start saying, 'No, this is not okay', then we are saying, 'Well, it is okay for us so there are probably others it may be okay for', and we know that is not the case.

We know there are members of parliament in other jurisdictions - and may be in this one too - who have had mental health challenges and we do not know what lay behind those.  It may well have been bullying from constituents; it may have been bullying from their colleagues or others in the parliament - who knows?  We need to stand up and lead by example, and not engage in that sort of activity ourselves.

The words used in the briefing and in the bill before us are about the need for the behaviour to be repeated.  There was a comment made in the briefing on the Alannah and Madeline Foundation's definition where a person feels helpless to respond.  Most of us in this place feel quite able to respond, and that is great, but many people do not, and they are the ones who need someone to stand up on their behalf.

It is more about patterns of behaviour rather than individual incidents.  The other aspect of this in the criminalising of young people as opposed to prevention and education is the DPP guidelines that have been developed around this.  At the briefing, which was a few weeks ago now, we were provided with a draft copy, which I will not read out as it was still a draft, but it is close to finalisation.  The DPP has quite extensive guidelines dealing with the prosecution and also has a section about youth offenders.  The DPP has been developing a specific set of guidelines around charging people with stalking and bullying.  This may not be the final version, but it is the general direction.  As we know from the bill, the DPP's consent to charge with stalking and bullying - as distinct from pursuing individual charges or preventative court orders - is only given in circumstances where the course of conduct is extremely serious and has occurred over an extensive period, or where lesser charges, such as restraint orders and other mechanisms, might not have been effective in dealing with the behaviour.

Ultimately it comes down to the question of the DPP's judgment on this matter, but the DPP has been around a long time and is quite able to make that assessment.  I think the member for McIntyre made the point that it does not always have to be repeated to be harmful; it can be one particularly vicious attack and severe humiliation.  None of us likes to be made a fool of; we can all do that ourselves quite well sometimes.  When someone else seeks to humiliate you, if they are really out there to do a good job on you, they will generally know your vulnerabilities.

We are seeing revenge porn and that sort of stuff going on with young people now.  I was listening to an interview of a young person on the radio, or it might have been someone referring to an interview or a discussion had with a young person.  The upshot of it was that for many in this current age of internet connectivity, social media and this digital age we now live in, part of dating and what we used to call courting once upon a time now often involves sending a naked photo of yourself.  This conversation was - and I am repeating what was said on the radio - that first base was sending a naked photo of yourself; second base was meeting the person; and third base was kissing them.  How does it happen that there is a mentality out there that this is the order things happen in?  I thought, this is really odd.  The point being made around this was that once that photo is shared, even if you voluntarily shared it - you have given it to the boyfriend or girlfriend - once you have let it go, you have no further control over it.  If the person knows your vulnerabilities are the way you feel about your body, which a lot of young people do and many older people also do, what would be a better way to humiliate extremely, or seek to humiliate, someone than to share that with your mates?  Male or female, it does not matter.

These are things we need to deal with and it comes back to education.  We need to try to help young people particularly, who seem to be engaging in this sort of activity - much more, certainly, than people of my generation.  Even though they know deep down that this photo is there - it is going to be there forever, we keep telling them - the actual implications of that are significant.

You cannot legislate against that.  It is a bit like saying you cannot legislate against stupidity but we need to really try to keep people informed about the harm.

Ms Siejka - There is a bit more to it, too.  Some research shows some young people actually choose to do that knowing the risk but because it actually protects them from things like STIs, so that is a consideration as well.  It is actually not skin contact so there is a whole bunch of other things that -

Ms FORREST - There is a whole heap of things underlying that, but my point is that once that photo is out there, it can be used -

Ms Siejka - Some of them are weighing that up.

Ms FORREST - We cannot really understand their decision-making because the world they are living is not the world we lived in at the same age. 

Mr Willie - If it is then onforwarded, that is sharing child exploitation material so young people can get themselves into a whole lot of trouble doing that.

Ms FORREST - Absolutely, I agree, a criminal offence could result from that.  I am thinking about the person who is being extremely humiliated by the fact they are now - all the blokes at the footy club have seen that, or all the women at the whatever have seen that.

Mr Gaffney - I think the member for Windermere took a different slant because that is what you meant about the DPP using that material sparingly for an under 18.  Sometimes they do not do that, they do not realise the consequence of what they do.

Ms FORREST - Yes, that is a judgment call.

Mr Gaffney - Yes.  The person who forwards it on sometimes does not realise that.  They are learning the rights and wrongs, so I think the DPP has it right.  Sparingly.

Ms FORREST - That is the intention, to use it sparingly.  Also, according to the draft guidelines, what would be taken into consideration was the number and type of instances that had been directed at the complainant.  You would hope after one episode they would be counselled and told what the implications could be.  If they continued to do it - and it says the top period of time in which instances occurred - if they continued to reoffend then you would think, they are just not getting this.  That discretion is there for a reason:  to try to educate, I would hope, and to be used as an educative process rather than to criminalise them.

Mr Gaffney - If you think about how many times you might tell your child not to do something, you tell them more than once or twice or three times.

Ms FORREST - Yes.  I am not saying this is easy.  That is why it is difficult.  That is why you cannot really nail down a definition either. 

One of the other considerations is likely to be the planning and motivation for the conduct.  Was it one of those one-off, spur of the moment, stupid things, and, once the thing has gone, it is a bit late, or was it really a planned and orchestrated event?  Have the individual charges or other court measures failed to stop the conduct?  These other measures might have been taken but they are just not getting through.  That is what we have just mentioned now.

Also, consideration of the effect the conduct had on the complainant, which is important, and are there other measures that can be put in place that may be more effective?  You may have a remediation-type approach with either the Anti-Discrimination Commissioner or some other body that can counsel in a mediationtype of framework.

The draft guidelines suggest that youths who engage in stalking and bullying will only be charged in exceptional cases where the conduct is extremely serious and where there has been considerable adverse consequence to the complainant and there is no other appropriate manner to deal with it.  I think that is the appropriate approach to take, which the member for Mersey was alluding to by interjection.

I acknowledge the concerns and matters raised by YNOT in those couple of areas but the Government has sought to strike a bit of a balance here.  It does seek to use a more restorative and educative approach first rather than going in too hard on a person.

Sometimes these bullies are victims themselves.  We often see that.  They have been the subject of significant bullying over their lives and, in some respects, that is the only way they know how to deal with it.  It does not make it right either but it means we need to deal with those people in a way that can assist them.  We need to deal with the trauma they may have experienced being the victim of bullying, which may be one of the underlying factors for the perpetration of bullying.

We do need to make sure we have adequate services to support victims and that is always a difficult task.  Are we sure we have enough services?  We need services to support perpetrators.  It is no good saying they are just bad people and they should not have done it; we have to ensure we have services to support and assist perpetrators, who may well be victims themselves, as well as the victims.  It is very difficult if your child is the victim, to think, why should they be looking after the bully, if you like, the person who is the perpetrator of this behaviour upon another?

There was a couple of other things I wanted to address.  The growth of the internet and online access certainly has made this issue much more real and much more difficult to manage.  With a lot of things on iPads and iPhones and other smart devices, for young people parents can put certain locks on them and prevent engagement with a number of sites but most of this cyberbullying behaviour happens through very innocuous sites.  These include messages - just straight-out text messages - Facebook messages, other messenger systems and Facebook itself - particularly Facebook messaging which is only seen between the recipient and the person who sent it.

It makes it much more difficult to block these sorts of things.  You can block a person or not take their calls and things like that, but it is difficult.  Young people, and even us, are all pretty addicted to these devices.  Look at you now, all of you, most of you -

Mr Valentine -  It is called doing work while we listen.

Ms FORREST - Even up the back they are addicted to them. 

Mr Valentine - We will keep an eye on you next time.

Ms FORREST - I am as addicted as the rest of them but people expect us in this day and age to respond promptly.  They expect us to respond to an email within a very short space of time and a text message within seconds and anything else pretty promptly.  The young people and people like us do not want to miss out on something we need to know about.  You are not likely to turn your phone off unless you have to for some other purpose.

Mr Willie - Through you, Mr President, that is one of the hardest things for young people.  If they turn their device off, they feel like they are isolating themselves and feel disconnected so it is very difficult for them to work through that.

Ms FORREST - It is.  That is what I mean - they are so accessible in terms of bullying that if people want to get at them through those devices, they know they are going to be checking them, even if they have to turn them off in class.  Schools have different policies on this, but if you have to put your phone in the basket at the front of the class for the whole session, what is the first thing people do when they pick them up out of the basket at recess?  Check their messages.

In that case you could be bombarded with several all at once -

Mr Valentine - That is why it pays not to answer them straightaway.

Ms FORREST - That is right.  There is no easy answer to this. 

These actions are done frequently, very quickly in repetition, at all hours of the day or night.  When I was a kid at school, if someone wanted to ring you up and bully you, you had to do it on the landline and that was not answered in the middle of the night.

Mr Valentine - They risked getting your mother.

Ms FORREST - That is right, exactly, and often they did.  They usually knew what time to ring when mum was up in the cowshed, for example, and could not be in two places at once.

It is much easier to connect, which is a great thing for our society, but it has that added challenge of people connecting in a way potentially harmful to the recipient.

These could have tragic consequences for victims, the long-term mental health impacts, self-harm and psychological damage.

Talking to my son, who is a doctor and has worked in the emergency departments of some of the biggest hospitals in the country, he will tell you some of the self-harm he sees is beyond belief.  They do not always get the chance in the emergency department to check what the underlying factor is, but someone has to be in a pretty bad space to be self-harming to the extent some of these people do.  They are not only young people; they are getting on into early adulthood and into later adulthood

Sometimes, the pain of physically hurting yourself is less than the pain you feel inside - it must be a very difficult place to be when the only way you can relieve your pain is to cause serious physical injury to yourself.

This is a serious matter and the mental health impacts can last a lifetime.  The second reading speech talks about this.  While the bill may not be perfect in the views of some, it certainly fills a gap.

It is really important the Government engages in a proactive education program on this for two reasons.  First, so people know it is now a criminal offence to cyberbully in this way, but, second,  to keep the focus on this issue as being a grave matter and one for which we will take serious action if people do not desist.

I repeat:  we have a responsibility here in this place to lead by example and not to accept it when it happens.  It can be hard to stand up for yourself, but other people can, and we should because we are letting everyone down if we do not.

I will support the bill and commend the Government for acting on its word to do something concrete about this.

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