Banning Murder on Thursdays
Few things annoy me more than the government banning murder on Thursdays. This is my made-up term for introducing offences or other legal instruments that add nothing at all to the law, because what they seek to prohibit is just a specific example of something that is already banned. A law banning murder on Thursdays is useless and unnecessary because murder is already illegal.
Sometimes a justice system will introduce more specific versions of a law for a good reason or at least a valid one. While assault is illegal, a lot of jurisdictions have different laws governing assault on any gay person where the assault is because the assailant hates gay people in general (“hate crime”), and while being aggressive and unwieldy is an offence, it’s covered by different laws in a plane versus on the ground.
So now that I’ve explained what murder on Thursdays is, and what murder on Thursdays isn’t, let me explain one thing. Cyberbullying, a neologism that describes bullying someone using technology (usually one school child to another) is utterly illegal.
It at the federal level under section 474.17 of the Crimes Act;
Using a carriage service to menace, harass or cause offence
(1) A person is guilty of an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
A carriage service is any service which enables communication by directed electromagnetic radiation, so any phone, Internet connection etc. is a carriage service, and it’s illegal to act the goat with it. In most states cyberbullying it’s covered by something else as well, for example in Queensland it’s under the criminal code, and it’s stalking.
Criminal Code 359B. Stalking.
Either one protracted act, or conduct that occurs on more than one occasion, of the following kinds (or similar):
- following, loitering near, watching or approaching a person;
- contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
- loitering near, watching, approaching or entering a place where a person lives, works or visits;
- leaving offensive material where it will be found by, given to or brought to the attention of, a person;
- giving offensive material to a person, directly or indirectly;
- an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence; and
- an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant.
So why am I reading in today’s Sydney Morning Herald;
NEW BULLYING LAWS
STEPHANIE PEATLING
May 9, 2010
Young victims of cyber bullying and tormenting classmates will be given legal protection under new anti-harassment laws to be introduced by the federal government.
Because the government intends to ban more murder on Thursdays, that’s why. My most serious concern is, if we have so many laws against cyberbullying as it stands, why aren’t the police arresting people who do it? It’s pretty obvious that the new laws that Pealting writes about in the SMH are not going to have any effect, because they already exist. Being able to charge someone under a different section or a different act isn’t going to make the police magically arrest cyberbullies where they didn’t before.
There is to my mind three possible reasons why police don’t arrest cyberbullies either at the federal level with using a carriage service to harass/menace/cause offence, or at the state level under various bits of legislation that prohibit it.
It’s possible the police erroneously think there’s jurisdictional issues. ”It’s on the Internet”. A while back I spoke to ABC Radio Ballarat about a website run by a local that essentially allowed anybody to say disgusting things about other people in the area. The show interviewed a policemen who said their hands were tied because the website was hosted in the US. This showed that the police didn’t realise they could arrest an Australian breaking Australian law, they were actually focussing on trying to get the website taken down instead. Police need to understand that when Australians break Australian law, it doesn’t matter if they’re using the Internet or not, they should be arrested.
It’s also a possibility that the police don’t want to arrest children for what they see as minor offences. ”They’re just kids, I played up at that age too” is a potential dismissal. I wonder how many more kids will commit suicide before that one loses popularity among the police. The mother in the July 2009 incident even went so far as to blame the Internet itself for the death of her daughter. I personally blame the bullies and I think the police should too.
The third likely answer is that police just don’t want to chase crime that occurs online. Crimes that occur online have a greater abundance of forensic evidence, but it’s faster and “real time” and generally harder to chase after successfully.
So how do you fix it? I wouldn’t waste time figuring out which of the three above is responsible for the problem – fix all three just in case. The police need to be instructed about how jurisdiction of crime works in an online age (the same way it did sixty years ago), they need to recognise that bullying is a major problem and costs lives, and the police need to be better resourced to address the fact that a portion of Australian life is now online – including the bits that are illegal. While we accomplish those things, I’d like the Rudd government to please stop making a new criminal offence for each existing criminal offence, and just putting “cyber-” on the front. If we wind up with an offence called cyberspeeding, I’m leaving the country.
Tags: Censorship, Law, Media, Society
It’s alright. Once the filter comes in, it will be impossible to cyberspeed.
Excellent article – and I love the expression. It’s like drafting a whole bunch of new laws against murder every time someone finds a new tool to commit the same crime with.
A couple of years ago, I was approached by a well-intentioned busybody and asked to sign a petition to get the local bylaws changed because kids had been riding bikes and skateboards on the footpaths of the main street and knocking old ladies over.
I tried to explain to him that there are already laws against that, and if it was going on, the problem was that the laws weren’t being enforced. He asked me to sign anyway and I refused, explaining that new laws were not only redundant but also irrelevant if the existing ones weren’t being enforced.
It’s just another case of wanting to be seen to be doing something.
Don’t these politicians have access to lawyers who can tell them this?
I’m sick and tired of being represented by idiots who have no idea about the laws they create or do know but want to be seen as ‘doing something’.
While I agree with the gist of the article, isn’t there a subtle distinction between the two laws you’re using as examples?
If I send you one email demanding your lunch money or I’ll beat you up, it’s covered by the menace/harass law. It’s not covered by the stalking law because it’s not “either one protracted act, or conduct that occurs on more than one occasion”.
It does sound like the sort of thing that would be covered else where, but to my non-lawyering understanding there are two different things being talked about in your examples.
There’s subtle distinctions between those two, and between every other law that covers any of the things that people could call “cyberbullying”. The illustration with both laws is intended to point out that an array of different (but similar) options exist to both federal and local police.
If you send me an email demanding my lunch money, it’s covered federally. If you send me an email a day reminding me that you’ll intercept me on my way home from school one day and beat me, it’s potentially covered under both laws. If you send me emails each day calling me ugly and suggesting I kill myself, it’s likely only the local QLD law that applies.
Underlying point: Police have options, and they need to use them.
[...] was related in Mark Newton’s Joint Select Committee on Cybersafety submission, it is like "banning murder on Thursdays". Murder is already illegal – why would we need to further refine the [...]