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Legal and Constitutional Affairs References Committee
07/03/2018
Adequacy of existing cyberbullying laws

PATTIE, Mr David, Group Manager, Improving Student Outcomes, Schools and Youth, Department of Education and Training

SERRY, Ms Ella, Policy Officer, Student Inclusion Team, Improving Student Outcomes Group, Department of Education and Training

[14:12]

CHAIR: Welcome. I understand information on parliamentary privilege has been given to you both. The Senate has resolved that officers of departments of either the Commonwealth or the state shall not be asked to give opinions on matters of policy and shall be given an opportunity to refer questions asked to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude us asking questions asking for explanations of policies or factual questions about how policies were adopted. We have your submission. I thank you. You are now invited to make a short opening statement. At the conclusion of those remarks, I will invite members of the committee to put questions.

Mr Pattie : We don't have an opening statement, so we are happy to take questions.

CHAIR: Thank you for coming to give evidence today. To what extent have the Department of Education and Training coordinated policies to combat cyberbullying within education environments?

Mr Pattie : We have a role, and obviously a national leadership role, in looking at policies around all sorts of things around student wellbeing and education, but obviously, as you know, we don't run schools and we don't employ teachers and things like that. As far as looking at the policies is concerned, as our submission said, we look at them through the Education Council, the National Safe Schools Framework, our Student Wellbeing Hub and the national curriculum. They obviously all have elements around bullying and cyberbullying. And our learning potential hub work has information for parents. So general support and general information through those avenues is the role of the Commonwealth.

CHAIR: Do you find, in addition to that policy-driven stuff, that you work with carriers and others, social media organisations et cetera? How do you facilitate school communities raising issues with carriers or online platforms? Is that for the schools?

Mr Pattie : We don't. That is for the school. Our role is one of encouraging and facilitating how schools might do that, but it's up to the schools. In the states and territories the education departments will have their processes and procedures in place to support those schools, and principals, teachers and parents, to engage with those organisations. We don't have a role in that at all.

CHAIR: What do you see are the key challenges for schools in doing that if they've got a particularly serious episode of cyberbullying that a cohort of students, say, might be perpetuating against other students?

Mr Pattie : As with other areas of student wellbeing, the challenge is obviously with the school principal and the teachers, in both their own understanding and their professional learning, and then the resources and support they have from their state departments to do that. They're the challenges in their space as far as understanding what they can do and who they can talk to.

CHAIR: Is their understanding of who they can talk to in terms of whether there are any applicable offences available to them? Clearly, offences against children are not unique to online behaviours. How is it, in terms of student wellbeing, that you help support schools to navigate using the tools that are available to them?

Mr Pattie : The answer is that all of that responsibility to support the schools rests with the states and territories. The state and territory departments of education have to have procedures and processes in place, and they do, to support their school communities. We don't have a one-to-one relationship with a school or with a principal.

CHAIR: No; I understand that. In that context, schools have, if you like, a duty of care towards their students. Clearly, you put together work that helps support them in that duty of care. How does that duty of care extend if, for example, bullying is taking place across borders?

Mr Pattie : Again, that is going to be a case of the procedures and processes of the states that are involved. In Albury-Wodonga, for instance, on one side and the other it would obviously be for New South Wales and Victoria to have those procedures in place and their local schools to manage them.

CHAIR: Has there been cause to reflect on the interjurisdictional nature of that?

Mr Pattie : We have not.

CHAIR: With things like the death of Amy Everett, where notably she went to a boarding school in one state but lived in another, how do you seek to—

Mr Pattie : Our guidelines, our advice and our support documentation—websites and things—are state irrelevant in that sense. They're national and they apply no matter what state is in play.

CHAIR: In that context, schools may be doing their best but they also may be failing in their duty of care. So you see it as the responsibility of parents and state governments to hold those schools to account, rather than there being a particular role for the Commonwealth in doing that?

Mr Pattie : In an operational way, yes, that's correct.

CHAIR: Is the Commonwealth examining whether there's more it can do in a coordinating role?

Mr Pattie : We certainly have, through the Safe Schools Framework and through Education Council and our input into the working group under there. We have an input, and we certainly have a role and an interest. I think the government and the minister have been quite clear on their interest in this. So, yes, we have an interest in trying to further the debate, but we don't have an operational role, if you like, in terms of running schools.

CHAIR: No, you don't have an operational role in running schools. What if the offences being committed within a school environment relate to federal laws rather than state laws?

Mr Pattie : That's probably a better question for Attorney-General's to answer than our department. We don't have a view on the legal side; we're not legal experts.

CHAIR: I understand that there's a clear hierarchy that states are responsible for student wellbeing?

Mr Pattie : Yes.

CHAIR: And it's your understanding, on that basis, that they're responsible for student wellbeing in relation to how they uphold both state and federal laws?

Mr Pattie : Yes, that's our understanding.

CHAIR: And that the state therefore holds the schools to account under state law for upholding state and federal law, not the Commonwealth?

Mr Pattie : If I understand the question correctly, yes, states are responsible for holding schools to account; that's correct. But as far as Commonwealth law is concerned, we're not the experts to comment on that.

CHAIR: But, as far as you can see, there's not a direct role for the Commonwealth in the ultimate accountability for whether students are breaching Commonwealth law to harass other students?

Mr Pattie : Not from a Commonwealth department of education point of view. Attorney-General's may have a different legal view.

CHAIR: Senator Patrick.

Senator PATRICK: It was reported in the media on 1 March that the Prime Minister had written to all school principals in Australia to urge them to take action against bullying and cyberbullying. Are you aware of that report?

Mr Pattie : Yes, I am.

Senator PATRICK: Was the content of that letter suggestions as to what to do or was it simply an urging?

Mr Pattie : My understanding is that it's an urging. It was taken on the basis that there was a view that those issues were important enough to raise awareness.

Senator PATRICK: So, in the context of this inquiry looking into matters that directly relate to cyberbullying, can you table that letter or arrange to have a copy of that letter sent to the committee?

Mr Pattie : Just to confirm, which letter are you talking about?

Senator PATRICK: There was a report on 1 March 2018 that a letter was sent urging them to take action against bullying and cyberbullying, including registering to take part in a national day of action et cetera.

Mr Pattie : Sure, we can definitely table that.

Senator PATRICK: That would be appreciated, because I presume it will have some suggestions that might be relevant to this committee.

Mr Pattie : Yes.

Senator PATRICK: Did that letter stem from a policy per se? How was it—

Mr Pattie : It stemmed largely from the upcoming national day of action, so it was appropriate for the letter to go out to encourage people to be aware of that national day of action and to take steps to encourage people to be involved.

Senator PATRICK: So the national day of action is part of a policy objective?

Mr Pattie : Yes.

Senator PATRICK: And that letter was considered to be appropriate to then in some way promote and encourage that particular policy?

Mr Pattie : Encourage it—yes, that's correct.

Senator PATRICK: There was also talk of some $1.37 million of funding. Can you tell me what that funding was for and who it's directed at?

Mr Pattie : The funding is over three years. It's directed to the Safe and Supportive School Communities Working Group of Education Council. That's a COAG Education Council working group. Part of that working group's role is the Bullying. No Way! website and the national day of action, which is held annually on, I think, the third Friday of March. This year it's on 16 March. I hope I have that right. That funding supports that working group and its actions around that.

Senator PATRICK: Okay, thank you. In the context of developing policy, how much interaction do you have with, say, the eSafety Commissioner, ReachOut and the Carly Ryan Foundation?

Mr Pattie : We have a close working relationship with the eSafety Commissioner. For a lot of the materials that we provide on either the Student Wellbeing Hub or Learning Potential we have an interaction with the eSafety Commissioner. The interaction with other interested parties is much more on a case-by-case basis. We don't engage in a policy debate as such. Obviously we are interested in any feedback those state bodies may provide us, but we have a much closer working relationship with the eSafety Commissioner.

Senator PATRICK: In the case of Dolly Everett, we heard evidence—and I think there is a coronial inquiry into that—that suggested that the bullying wasn't necessarily a direct cause and that there may have been depression involved and that it was, in essence, a catalyst. In fact, we've heard others talking about that as a general proposition.

CHAIR: We do need to tread carefully.

Senator PATRICK: Sure. I'll just say from a general perspective there is a view that cyberbullying can be a catalyst for those sorts of tragic events. Do you take that into consideration in the context of your policies? Obviously you are providing support to address cyberbullying in schools. Do you provide additional support in circumstances where you have identified students, or do you have programs in place that deal with students who are suffering some form of depression?

Mr Pattie : In general terms, across our student wellbeing policies, programs and support we have connections with the Department of Health and we do things around mental health, bullying and cyberbullying to give parents, students and teachers support and advice on that stuff. That's in a general sense. We certainly don't—and it's not our role—to address individual instances. But those individual instances have an impact on what we discuss and think about in our policy terms. We have a general response.

Senator PATRICK: So, in terms of education funding, you don't really direct any particular funding at cyberbullying? You direct funding at schools, and schools then conduct whatever activities they do in that space in effect under state government control.

Mr Pattie : That's correct. As you are aware, we fund government and non-government schools through the states and territories essentially. That funding is then distributed to those schools and those schools do whatever they need to do to teach and support the kids and the parents. We don't get to the level of detail of saying, 'You must run this program or that program.'

Senator PATRICK: Sure. But some of the evidence to the committee has talked about a national approach. One of the ways you can impose a national approach across states is through funding mechanisms. Can you maybe shed some light on that approach.

Mr Pattie : I think you are alluding to the conditions on funding that we might apply. The review into achieving excellence in schools by Dr Gonski is currently underway and is due to report at the end of March. Following that, there will be ongoing discussions with states and territories about bilateral agreements and what the conditions on national school reform might be. Those are very high level. However, the conditions on funding always involve a discussion between states and territories and the Commonwealth during the Education Council.

Senator PATRICK: So it's a COAG kind of discussion?

Mr Pattie : It's through an education council—that's right.

Senator PATRICK: If the committee were to make a recommendation—I don't seek to prejudice its findings—

Mr Pattie : Sure.

Senator PATRICK: If it were to make a recommendation around some sort of national program, you're suggesting that that would have to then go back through COAG?

Mr Pattie : Absolutely.

Senator PATRICK: I then come back to the input that others may have into that national program. If a decision were made to try to standardise the approach across the country, I presume that the Commonwealth would want to have at least some direct contact with some of the NGOs?

Mr Pattie : We cross into an area of the Constitution about who runs and doesn't run schools in this sense. It's not quite that easy, is what I'm saying.

Senator PATRICK: Yes. I'm trying to understand what the pathway would be.

Mr Pattie : The pathway would be the COAG Education Council—absolutely. The minister would talk to the state ministers, and through that process would be the channel, for sure.

Senator PATRICK: In what way do you collect data and statistics related to cyberbullying to inform you of Commonwealth policy? Is it through the e-safety commissioner, through direct means or through data coming directly from schools?

Mr Pattie : We don't collect specific data at the education department. We would certainly rely on e-safety commissioner information. States and territories would have closer data than we would. As a Commonwealth department, we don't collect that data.

Senator PATRICK: But you would appreciate that, in order to effectively form policies and set priorities, you need access to that data. Do you actually receive that data from the states, or is it—

Mr Pattie : We would, on a particular policy item, seek to find that data, whether it be from the states or through our Commonwealth colleagues—maybe Attorney-General's, the e-safety commissioner or whoever that might be. I don't have a specific example in mind, but we would seek to find whatever data we could.

Senator PATRICK: So, it's not the case that data flows up; it's a case of: if you're dealing with a particular area, you will request the data that you think might be useful?

Mr Pattie : That's correct.

Senator PATRICK: Thank you very much.

Senator STEELE-JOHN: I wonder if you could help clarify a couple of questions I have in relation to how the curriculum deals with these issues. If I've understood your submission correctly, from years 1 to 8 the curriculum deals with this through the technologies spoke, which includes aspects in relation to online safety—is that a correct understanding?

Mr Pattie : That's correct.

Senator STEELE-JOHN: Then it becomes explicitly and implicitly a part of the foundation from year 10?

Mr Pattie : Maybe I should clarify: the national curriculum is from foundation to year 10. There is no national curriculum beyond year 10. Years 11 and 12 are a state-based requirement. You're right in the sense that there are general capabilities that are approached in the later years.

Senator STEELE-JOHN: If the national curriculum cuts off at year 10 and the technology spoke goes up to year 8, what exists in the year 9 space?

Mr Pattie : The way that the national curriculum works is that we provide the national framework and then states and territories will implement those curriculum. As they go through to the further years, states and territories may well be delivering the same content or appropriate content. If you'd like, I could get a clearer breakdown for you.

Senator STEELE-JOHN: I'm just wondering what happens in that gap between year 8 and year 10.

Mr Pattie : I guess what I'm saying is that it doesn't suddenly stop. Perhaps we can—

Senator STEELE-JOHN: But the Commonwealth purview as its—

Mr Pattie : The Commonwealth purview goes to year 10. Those general capabilities and digital capabilities are throughout that curriculum. I could give you a better breakdown of those later years, if you'd like.

Senator STEELE-JOHN: That would be great, because one of the things we've heard from the research that exists is that this is actually occurring between the years of 12 and 14, so I'm really keen to understand what, if anything, the curriculum does to either make sure that that occurs or facilitate the transition, or incentivise states and territories, as they come in, to make sure this is provided exactly when it's needed. Otherwise, we've got a gap of guidance in the years when it's actually required.

Mr Pattie : Sure.

Senator STEELE-JOHN: Also, I'd like to take you to paragraph 3 of your conclusions about the curriculum, where it says 'lessons that teach students about their digital reputation and the consequences of behaving inappropriately online' in terms of impacts on their career and, conversely, the positive impacts of a good reputation online. One of the things that's been made really clear to us in the committee, particularly from groups representing women in this space, is that it is really damaging to place the burden upon the victim or upon the person on whom a crime has been perpetrated. I'd hate to think that part of what the national department is advocating is that if you don't want intimate images shared then don't share intimate images, which completely misses the point of that aspect of cyberbullying. Could you take me a little bit more in depth into what that looks like in terms of reputation?

Mr Pattie : Maybe I'll answer that in the sense of saying that the national curriculum is not that specific. The curriculum is a framework for what schools and educational authorities then implement. The lessons, the lesson plans and how teachers and schools approach that is left up to them. Our curriculum—the national curriculum—doesn't go and talk about victims and perpetrators in that sense.

Senator STEELE-JOHN: No. But, beyond what you've listed here, is there any guidance within the national curriculum to ensure that your language here about reputation isn't interpreted in that damaging way, or is it just as you've placed here?

Mr Pattie : It's pretty much as is placed here, but I will take that on notice and give you some more detail about how it goes from what we've said here to in practice, if you like.

Senator STEELE-JOHN: That would be great. I would just love to know that we aren't inadvertently making a certain phenomenon, that we've heard is very damaging, worse.

Mr Pattie : That's definitely not the case.

Senator STEELE-JOHN: Well, it wouldn't be the intention either, I'm sure.

Mr Pattie : That's right, but let me take that on notice and I'll give you some clearer explanation about how that all fits in.

Senator STEELE-JOHN: All right, thank you very much.

CHAIR: Thank you both for your appearance today. Did you have anything in particular, Ms Serry, that you wanted to add?

Ms Serry : No, nothing further to add.

CHAIR: Thank you both for your attendance today.

Mr Pattie : Thank you.