Chapter 12 Policing
Policing and justice
12.1
It is clear that the Australian Federal Police (AFP) and State and
Territory police forces are committed to improving safety in the online
environment. It is equally clear, however,` that that some people who report
bullying or harassment to local police stations often do not receive much
support. It was noted that, because of resource constraints, stations are ‘far
too overstretched’ to engage with anything but high-level cyber-crime and in
some cases an understanding of the issues.[1]
Criminalisation of online behaviour
12.2
The Attorney-General’s Department noted that the Criminal Code Act
1995 (Cth) contains comprehensive offences dealing with the misuse of
telecommunications, and cyber-crime.[2] The Commonwealth Director
of Public Prosecutions submitted:
There are a number of
Commonwealth offences which relate to the potential abuse of children online,
such as offences involving grooming and procuring children using a carriage
service (sections 474.26 and 474.27 of the Code) and offences of using a
carriage service for child pornography material and child abuse material
(sections 474.19, 474.20, 474.22 and 474.23 of the Code). These offences are
prosecuted by the [Commonwealth Director of Public Prosecutions] (CPP). The
CDPP is prosecuting an increasing number of offences involving the on-line
exploitation of children ... The Crimes Legislation Amendment (Sexual Offences
Against Children) Act 2010 (Cth) inserted new offences into the Code which
specifically relate to the potential abuse of children online.[3]
|
Act/Section
|
Outcome
|
FY05/06
|
FY06/07
|
FY07/08
|
FY08/09
|
FY09/10
|
Total
|
|
Criminal
Code
474.19
|
Proven
|
2
|
22
|
38
|
110
|
129
|
301
|
|
Criminal
Code 474.20
|
Proven
|
|
4
|
2
|
6
|
3
|
15
|
|
Criminal
Code 474.22
|
Proven
|
|
4
|
7
|
9
|
4
|
24
|
|
Criminal
Code 474.23
|
Proven
|
|
1
|
1
|
1
|
|
3
|
|
Criminal
Code 474.26
|
Proven
|
|
4
|
6
|
12
|
14
|
36
|
|
Criminal
Code 474.27
|
Proven
|
1
|
1
|
3
|
11
|
14
|
30
|
|
Totals
|
Proven
|
3
|
36
|
57
|
149
|
164
|
409
|
Source Commonwealth
Director of Public Prosecutions, Submission 49, p. 5. Table relates to a total
of 356 defendants.
12.3
It was suggested that, while there is enough legislation that can be
applied to abusive behaviour, enforcement mechanisms are required. The Stride
Foundation made the point that students see cyber-bullying as it relates to
student to student:
One of the key components of
the definition of Cyber Bullying is that it relates to students on student
behaviour. It does not include adult on student or adult on adult behaviour as
there are clear laws and definitions that cover these areas.
[4]
12.4
Further, the Association of Independent Schools of South Australia make
the point that:
Many teachers and parents may not be aware that as well as
being morally wrong, cyber-bullying and other inappropriate behaviours may also
be against the law. An e-crime is where technology, for example a mobile phone,
is used to commit an offence such as harassment. E-crimes can be reported to
police and offenders can be prosecuted. This is not widely known throughout the
community.[5]
12.5
The possibility of enforcement of criminal laws for behaviour online is
not always appreciated.[6] The Stride Foundation
believe that,
Assumed anonymity and the perceived lack of penalties have
created the image that the internet is a lawless world which provides great
freedom to the user. What is often lacking is an awareness by students of the
potentially serious legal ramifications of their behaviour. Teachers and
students need to be made aware of current penalties that exist. For example in
NSW the Crimes Act, Section 545AB covers the offence of intimidation. Teasing
or spreading rumours about someone online is considered intimidation and under
the Act carries a maximum penalty of five years detention and/or $5500 fine.
Harassing someone online or making threats electronically can carry penalties
of up to 10 years detention.[7]
12.6
Students need to be made aware that the misuse of telecommunication
devices is considered a very serious situation in Australia and a Commonwealth
offence. Interviews with cyber-bullies have often revealed they considered
their online harassing behaviour as ‘pranking’ or joking around. Both students
and adults involved with online behaviour need to understand the sending of
offensive or harassing messages is considered by the law as assault.[8]
12.7
The criminalisation of young people has attracted the following
sentiments:
It may seem to some that a criminal prosecution would be an
extreme response to bullying behaviour. In the first place, the Director of
Public Prosecutions may be dubious in a given instance that a case can be
established beyond reasonable doubt, particularly with respect to the necessary
intention to commit the relevant crime. Nevertheless, even where there is such reticence
on the part of the prosecuting authority, targets of cyber bullying may find
that the very involvement of a police investigation helps them to regain a
sense of control and power otherwise lost to the bully. Examination of the
range of criminal offences that may be relevant is therefore warranted.[9]
12.8
Yet Commander Grant Edwards of the AFP commented:
suffice to say that it is positive in the sense that we are
getting very good conviction rates out of the prosecutions that we are putting
before court.[10]
12.9
While a range of sanctions against abuses of cyber-safety already exists
in Australian jurisdictions, several participants in the Inquiry expressed
concerns about criminalising some adolescent behaviour in the online
environment. For example:
we should be wary about criminalizing behaviour that is more
effectively and more appropriately addressed through non-criminal measures,
such as education and counselling ... The harms associated with the
criminalization (as child pornography) of naïve experimentation or
rule-breaking on the part of minors are likely to outweigh the benefits to the
community at large or to those minors.[11]
12.10
It was agreed that cyber-bullying should not necessarily be regarded as
entirely different to bullying at school. In particularly serious cases,
criminal investigation and prosecution ‘may well be warranted’.[12]
12.11
It was also suggested that there is enough legislation on
cyber-stalking, misuse of telecommunications and harassment, for example, to
criminalise behaviour. But children under ten are not held criminally
responsible for their actions and, between 11 and 14 years, courts decide
whether young people intended to commit a criminal act.[13]
12.12
There had been a proposal to amend the Criminal Code to ensure that it
can deal with serious cyber-bullying. The Alannah and Madeline Foundation
believed that ‘no-one wanted to criminalise children’s behaviour’ because this
abuse had to be seen in the context of the ways they behave. To make ‘an
enormous number’ of them of criminals would be an inappropriate legislative
response to a behavioural problem that is the responsibility of schools and,
particularly, parents.[14]
12.13
Professor Philip Slee thought that there was pressure to go down the
legal path of criminalising the behaviour of young people, and that caution
should be exercised.[15] Dr Julian Dooley and Ms
Robyn Treyvaud supported this view: that behaviour is the problem, not the
technology.[16] The Australian
University Cyberbullying Research Alliance stated that regulating technology,
or taking legal action, would not change behaviour.[17]
12.14
Mr Bruce Arnold agrees that a cautious stance should be adopted when
considering arguments for criminalising behaviour that he believed would be
more effectively and appropriately addressed through education and counselling.[18]
He also believed that the harms associated with criminalising what he saw as
‘naive experimentation’ or rule-breaking were likely to outweigh the benefits
to the community, or the individual(s). Education campaigns were more likely to
be effective than trials of 15 year olds, or seizing mobile phones.[19]
12.15
Ms Robyn Treyvaud noted that mobile phones are probably the area where
parents/carers can have influence. It seems to have been assumed that pre-paid
services might moderate inappropriate use because of the limited credit
available. It appears, however, that behaviour is modified if parents/carers
might find out, via account statements, that such images have been sent.
Further, it is in schools where students know that there is a log of where they
have been that inappropriate images are not sent.[20]
12.16
Professor Sheryl Hemphill suggested that there should be less legal
interventions, with more emphasis on the right way to behave, because of the
risk of putting young people on the path to criminal behaviour.[21]
The Queensland Catholic Education Commission agreed that an emphasis on
education, rather than on punitive action, seemed to be a more enduring way to
proceed in a complex area.[22]
12.17
The Family Online Safety Institute stressed the importance of
differentiating between teasing or ‘mean comments’ and actual criminal
harassment. It recommends that instead of criminalising behaviour, solutions
should include education, empowerment and the use of website tools to reduce
the likelihood that young people will fall prey to cyber-bullying.[23]
12.18
While the Australian University Cyberbullying Research Alliance accepted
the ‘natural tendency’ to avoid criminalising young people’s actions and added
the following points:
-
Criminal sanctions were appropriate to more cases than was generally
appreciated;
-
Very few young people seemed to appreciate their potential for
attracting criminal liability;
-
Recent reports had highlighted that schools, if not teachers and
parents/carers, were increasingly inclined to resort to criminal law as a result
of fear, frustration, or in the interests of community safety;
-
It was imperative to consider either criminalising behaviour or
providing ‘formative discipline’;
-
Civil law may be invoked when targets decide to turn to the
courts to gain some reparation from those responsible for abusive behaviour;
-
Under Australian law, parents/carers are not generally legally
liable for their children’s acts, so that schools are usually involved in civil
litigation;
-
While our society is increasingly litigious, consideration needs
to be given to the view that the ability of schools to respond appropriately to
abuse is hampered by ‘the often unrealistic fear’ of being sued; and
-
Finally, there is the issue of extending schools’ duty of care to
off-site behaviour, at any time of day or night.[24]
12.19
Reference was made to a case in Western Australia where an explicit
video had been made, sent by mobile phone and downloaded via a memory stick to
a computer at home. The young recipient was charged with possessing child pornography.
This was seen as an example of laws being used against those they were designed
to protect. If found guilty in some Australian jurisdictions, the young person
could be placed on a sex offenders’ register. Such cases raise the issue of
whether laws need to be changed because of the ways technology is changing, and
the ages of the users.
Restorative justice programs
12.20
Restorative justice programs are based on shared ownership, or a peer
approach, to resolve problems that arise at schools. They take the form of
conferences involving a range of people, including community representatives,
perpetrators, victims, parents/carers, law enforcement, teachers and school
staff. Incidents are discussed, as are ways of resolving them, and perpetrators
are present when victims explain the impact incidents had on them. Community
and law enforcement representatives can discuss ways of restoring harm that has
been done.[25]
12.21
As this process seeks to be educative rather than punitive, it can be
effective in resolving issues. Though these programs are becoming more widely
used in schools, their effectiveness is not clear.[26]
12.22
Most schools have effective policies and programs to address bullying
and its effects, but the prevalence of cyber-bullying seems to be growing. The
damage that this abuse can do to some students as either victim or perpetrator
indicates that, in terms of schools’ duty of care, prompt and effective action
should be taken.
12.23
While it was pointed out that such programs take a great deal of staff
time, involving perpetrators in a restorative process should enlighten them
about the hurt that they have caused. Such programs would be a structured way
to reduce that hurt for victims, to assist in their recovery from the abuse and
lead to greater involvement of parents/carers, police and local communities in
schools.[27]
12.24
The Association of Independent Schools of South Australia commented on
the firm, supportive and considered manner in which schools deal with
cyber-bullying and referred to:
The Restorative Justice approach is used by some AISSA member
schools when dealing with incidents of cyber bullying. It focuses on developing
an understanding in students of the social and emotional impact of their
behaviour, for oneself and others, rather than an emphasis on tangible consequences.
The focus is on restoring an appropriate relationship.[28]
12.25
The Australian Institute of Criminology supported the restorative
justice approach in which:
You have conferences of the victim, the offender, community
representatives and law enforcement all meeting together to discuss the nature
of the incident and how it can best be resolved. You have an offender present
when a victim explains the impact of the activity on them. The parents can also
be present. The representatives from the community and law enforcement can talk
together about restoration for the harm that has been done. I think that could
be a good alternative approach.[29]
12.26
The NSW Government also supported the restorative justice approach, as
it:
concentrates on promoting
values likely to lead to responsible citizenship, such as pride in one’s school
and an obligation to help others. Addressing the problems of bullying is seen
as requiring confrontations with the person bullying, the deliberate inducement
in them of appropriate shame, and action undertaken by them to restore positive
relations with the person being bullied... There is Australian data that
indicates that there is a decrease in suspension rates through the application
of restorative conferencing in schools, along with high rates of participant
satisfaction (e.g. person harmed, parents and wrongdoer) and high rates of
compliance with agreement (above 90%).[30]
12.27
Mr Stewart Healley advised:
Police are often reluctant to charge young people with
criminal offences where other, less punitive, measures can be used. This may
involve the use of restorative justice, where the person who has been cyber
bullied and the people doing the cyber bullying (as well as their support
network) are brought together to talk through the issues and come up with an
agreed solution. Other options include cautions or disciplinary action taken by
schools or parents.[31]
12.28
He also made the point that restorative justice program do not work in
all cases:
Unfortunately, for the remaining 10% of teenagers that do not
“choose to be” or “accept” any form of Social Responsibility; and are usually
supported “blindly” and sometimes “aggressively” by their Parents / Guardians
no matter what evidence is produced, will not be suitable for the Restorative
Justice Pathway and will be assessed as an “Ineligible Offender”.[32]
12.29
Mr Healley added that:
However, my previous 11 years as an operational Police
Officer have given me the knowledge and experience to know however few in
number, whatever conflict resolution methods you employ there are some children
and adults that do not wish to alter their behaviour choices and see that they
have a right to do whatever, wherever, whenever they chose and that includes
inflicting pain and suffering on others with an attitude of “who’s going to
stop me, then!”[33]
Intervention orders
12.30
Dr Helen McGrath referred to the number of intervention orders being
taken out by students against students:
My experience has been that parents tell me that when they
have tried to make a complaint to their local state police branch, even though
the local state police branch may be aware of the federal e-crime offences,
they are usually discouraged from going further and it is not made easy for
them. One of the areas of concern that I have is how effectively the Australian
Federal Police are working with state police to facilitate that process if that
is the way in which parents want to go.[34]
12.31
While victims can take out intervention orders against perpetrators,
these are ‘almost impossible in practice to enforce’. Where a school is
reluctant to take action, desperate parents/carers sometimes complain to local
police because they cannot see any other way to stop the abuse. Going to the
police or taking court action is not usually an effective first step, as
complainants seem generally to be discouraged from proceeding further.[35]
12.32
The Independent Education Union of Australia made the point that:
If one of the things that arises from that approach and then
taking it to the next logical step by seeking apprehended violence orders
against students at the same school where proximity becomes the determinant, it
is actually an unworkable solution that they cannot be within 50 metres of each
other. That might be the entire length of the school buildings in that
particular school. It becomes an unworkable solution even though it is an
approach that the law provides for. I think it is really critical that the
point she makes is upmost in our minds in that whatever solutions we are
proposing, they have to be absolutely workable.[36]
12.33
Dr Helen McGrath explained that sometimes parents are desperate and
while this may not be a good solution:
the reason why so many intervention orders are taken out
against children and young people is that the parents could not get the school
to make it stop, therefore they thought they had absolutely no other action.
The action per se, even though it might have been hard to implement, which I
would agree with you about, was enough to project the school into action. She
suggested that, if there were mandatory reporting of ongoing psychological harm
to young people, it might at least trigger a response such as there is now
going to be a mandatory restorative justice conference with that family, with
those children, with the school leadership, et cetera.[37]
12.34
Details were provided to the Committee of what could be regarded as a
case study in the lack of effectiveness of schools, law enforcement and the
justice system. A 15 year old was recently forced to change schools because of
bullying, harassment intimidation, and defamation on social networking sites,
lack of action by senior school staff and an assault. Restraining orders were
successful on the protagonists.[38] The writer explained
the impact of the event:
The other members of the group continued to post on Facebook
about the event and as a result of the physical attack I determined to take out
restraining orders on behalf of my child.
Two girls (the one who admitted to the physical attack and
another who was facing charges for another incident) accepted the restraining
orders. However the other four continue to be seen as a collective (I lodged
six individual orders) and continue to contest the orders.
At the initial hearing the magistrate who granted the interim
orders stated something to the effect that he could not include Facebook and
MySpace as he was not personally familiar with and did not understand those
sites.
I will clarify that when the orders were put into effect, my
subsequent complaints for breach of an order as a result of Facebook activity
by some of the Respondents were taken seriously and acted upon by Police.[39]
12.35
The Stride Foundation cautioned about the potential to compound the harm
by trivialising cyber-bullying incidents and not taking them seriously:
To tell the target to
‘ignore it’, ‘get over it’, ‘don’t worry, or it happens to everyone’ does not
in anyway help the target to deal with the lack of confidence, self-esteem or
social comfortability.[40]
12.36
Baily commented that promoting a safe online environment or bully-free
zone is nowhere near as effective as enforcing and policing, and making young
people aware that it happens.[41] Similarly, Lisa
commented:
Police enforcement is really needed. I had an
issue, which turned really bad and when I contacted police, I was told to grow
up and that they can't do anything about it. How is that going to help
the youth that are receiving death threats, and police will do
nothing to help and put it done to “teenage drama”? I suggest getting a
better police force who actually do their job, instead of ignoring laws.[42]
12.37
Therefore, there needs to be greater awareness of the options available
to parents and young people in situations where the school have not been able
to resolve the situation adequately.[43]
Coordination
12.38
South Australian Police and Western Australian Police drew attention the
need for greater coordination of available resources between agencies to deal
with cyber-safety issues. The WA Force argued that there was a need for a
national body to investigate, advocate and act on cyber-safety issues.
12.39
Google commented on its cooperation with law enforcement to combat child
exploitation:
Google cooperates with child safety investigations, and has a
legal team devoted to this effort 24 hours a day, 7 days a week. We respond to
thousands of law enforcement requests for assistance, and hundreds of
subpoenas, each year. We also provide training and technical assistance to law
enforcement officials investigating online crimes against children through
forums such as the Internet Crimes Against Children National Conference and the
Virtual Global Taskforce.[44]
12.40
The Australian Council for Computers in Education stated that:
To date, police responses to
Risks associated with SNS use in all Jurisdictions studied for this report have
tended to be fragmented and insufficiently coordinated.[45]
12.41
The AFP detailed where cooperation would be particularly beneficial:
For example, from a law enforcement perspective, it is vital
that information about trends, offenders’ modus operandi derived post each
operation is linked into current prevention strategies. This ensures prevention
and awareness raising campaigns are targeting the vulnerabilities in which
online child sex offenders have identified and pursued.[46]
Legal risks
12.42
The Australian Council for Computers in Education highlighted the need
to consider the legal risks arising from using social networking sites as there
is a concern about the level of understanding of the nature of the risks. The
areas of law where there are potential liabilities for young people using social
networking sites include:
- Privacy disclosure
and breach of confidence;
- Intellectual property
rights especially copyright infringement;
- Defamation; and
- Criminal laws
including harassment and offensive material.[47]
12.43
The National Children’s and Youth Law Centre stated that in most cases
bullying had occurred at schools as well as online and the centre has had
requests for advice in relation to possible legal recourse.[48]
Feedback from young people
12.44
The Committee’s Are you safe? survey revealed that overall, young
people are generally positive in their engagement with police. Demonstrating
the breadth of police involvement in this area, the following comments were
made by survey participants responding to various questions throughout the
survey.
|
Goverment should create a cyber-safety police frce and
have a website where kids can report cyber-bullying. Police can chase this up
and parents of the other kids will be held liable. This would reduce and
deter people from bullying (Male 18).
I have been cyber-bullied, but it was a few years ago. It
was 27 pages of teasing and swearing, then my dad told the bullies that they
will see him in the school office the next morning. I was too scared to go to
school, but I did. The next morning, the principal said they couldnt do
anything, because it was out of school, so they got no punishment. He said to
not bother with the police because we were only 12. I still got
cyber-bullied, and i got very upset. I hope in the future, they will get
punished (Female 14).
I think that if you want bullying to be controlled, more
laws should be inforced,police men and women should come to the schools and
talk to youth about it and make children scared and insted of teachers
handeling it police should get involed. The bullys at my schools are mostly
the rich ones that get whatever they want and have more than everyone else,
or the girls that are really beautiful and use there looks to bully people in
ways (Female 15).
I think the main problem or reason that cyber bullying
seems to be increasing is that most young people are unaware that cyber
bullying can be as serious/harmful as face-to-face bullying. It seems that
many people are willing to post a nasty comment online, often people who
would never dream of saying the same to a person's face. Young people need to
be made aware that cyber bullying is just the same and can have the same
disasterous consequences as other bullying forms. There is also the issue of
anonymity, where bullies believe they cannot be traced and are therefore able
to say whatever they wish. Ensuring young people are aware that police or
other authorities have full access to internet history and the ability to
track internet use I think would reduce the number of people willing to bully
on the internet (Female 17).
kids are all wrapped in cotton wool now and arnt allowed
out side due to media making parents believe pedophiles are everywere. if
kids had something to do ( and police chilled out and wernt so enfocive over
things such as riding/skating on the road) kids wouldnt even go on a computer
(Male 17).
Kids need to be tought not to be idiots and make others
lives a living misery. If you become a victim of cyber bullying, immediately
block the person that is doing it, if it is taking place on Facebook or the
like. Then report the person to your teacher or the police if it is serious
enough... (Male 16).
Most people don't quite understand that there are people
who can help and some people don't think the police can do anything to stop
stalking or cyber bullying. Also people don't understand that it is the World
Wide Web and its huge and terrifying because you just don't know (Female 16).
police should come and talk to students and should be
putting fear into the bullies not the victim (Male 14).
The police came in to tell us about how 3 clicks on a
girls facebook page could tell us what her house looked like and where she
lived and what school she went to. enough to stalk her! I think that scared
most people a bit to check their privacy settings (Female 14).
“after seeing a email about how a police person who went
undercover who found out enough information about a person that they could
locate there house just by saying what sport team they play for. Is is
worring how easy it is to get information about people (Female aged 13).
the police should do more to protect us and teach us about
all the bad things (Female 15).
the protection could be increased, by having a random
conversation check, this could be done by police or any form of authorities.
you could teach people to report this (Male aged 15).
There is a huge fuss over cyber-bullying. I have been an
online gamer since I was 6, and cop crap every day from anonymous gamers, and
I have no trouble with it, I just treat it as banter and ignore it. Although,
inter school cyber-bullying is a totally different thing, and on a more
serious level (especially as the bully and the victim know each other), it is
quite overated. Calling names etc, is so easily blockable, and ignorable.
however, when it gets to matters such as, embarrasing pictures of the victim
being posted by the bully, that's when the police should be involved straight
away. I really think people my age just need to grow up (Male aged 15).
There should be a lot more police/government visits to us
students at school, to help reduce the bullies and make the charges even more
heavier (Female aged 15).
we need cyber police!!! (Male aged 13).
we should have the police/teachers suppervise kids on the
computer (Female aged 13).
Well being exposed to the internet is a bad thing because
the police can get involved and shit will hit the fans i reasently got kiked
out for what i did. All i can say is teach them better things make the
internet safer. Protect the young people (Male aged 15).
what made me really think about and realise what some of
the things i did was cyberbullying and wrong, was when we had a police
officer come to our school to tell us what cyberbullying really was. this was
when i realised some of the things i did were wrong and illegal (Female 17).
|
Concluding comments
12.45
Policing is an area where a great deal is happening and there is a lot
of work still to be done. While legislative change is being mooted in a number
of jurisdictions, the expansion of educative and restorative justice approaches
provide alternative approaches.
12.46
Australian police forces are actively involved in a number of
international law enforcement initiatives which are covered in Chapters 1 and
15.