Communtity Law Manual | Harassment & bullying | Harassment in the community: Getting protection under the Harassment Act

Harassment in the community: Getting protection under the Harassment Act

Overview

If you’ve been harassed by a stranger or someone else in the community, you can take action against them under the Harassment Act 1997. You can apply to the District Court for a restraining order against the harasser, and in the most serious cases you can go to the police.

“Harassment” covers a wide range of behaviour, including things like stalking, abusive phone calls, and threatening letters. The Harassment Act recognises that behaviour that might see innocent or trivial on its own may amount to harassment when seen in context.

When you take action under the Harassment Act, you have to show, first, that the behaviour amounts to “harassment” within the meaning of the Act, and second that the harassment meets the test for obtaining a restraining order under the civil law parts of the Act or meets the higher test for criminal harassment.

Note: The Harassment Act doesn’t apply when the person harassing you is someone who you’re in a family or domestic relationship with. This is covered instead by the Family Violence Act (see the chapter “Family violence and elder abuse”). “Family” violence” (which the law used to call “domestic violence”) can include a wide range of family and close personal relationships.

How can the Harassment Act help?

If you’re being harassed, you can apply for a restraining order from the District Court under the “civil harassment” parts of the Act.

The Harassment Act also makes the most serious types of harassment a criminal offence, whether or not you’ve already been granted a restraining order. In those cases, you can complain to the police, and if the harasser is convicted they could be jailed for up to two years.

This section of this chapter explains about restraining orders. Criminal harassment is explained later in this chapter (see the last section, “Going to the police: When the criminal law can help with harassment”).

Note: A person’s behaviour can amount to both criminal and civil harassment. In those situations, you can both complain to the police and also apply to the District Court for a restraining order.

What is a restraining order?

Harassment Act 1997, ss 16, 19

A restraining order is a legal order granted by the District Court under the “civil harassment” parts of the Harassment Act. The order makes it a criminal offence for the harasser to contact you in any way, or to do things like watching or hanging around outside your home, or following you or stopping you in the street, or doing anything else that would make any reasonable person fear for their safety.

The order also makes it illegal for the harasser to threaten to do any of those things, or to encourage someone else to do any of those things to you.

Just having a restraining order made against them doesn’t give the harasser a criminal record. However, it’s a criminal offence if they breach the order, and this will give the person a criminal record (see below “Breaches of restraining orders”). In this way a restraining order is similar to a protection order under the Family Violence Act.

If the criteria for a restraining order are met, an order can be made against any person, but with these exceptions:

  • Harassment Act 1997, ss 9(4), 12

    an order can’t be made against a child (that is, someone under 17) unless they’re married, in a civil union, or in a de facto relationship with their parents’ permission

  • an order can’t be made against someone who you are (or have been) in a family or domestic relationship with. In these cases you may be able to apply for a protection order under the Family Violence Act (see the chapter “Family violence and elder abuse”).

Complaining to the Human Rights Commission about sexual or racial harassment

If you’re sexually or racially harassed in one of the areas of life covered by the Human Rights Act 1993, you can complain to the Human Rights Commission – for example, if you’re racially harassed by a shopkeeper, or sexually harassed by your landlord (see the chapter “Discrimination”). Sexual or racial harassment in the workplace is also covered by the Human Rights Act, but in those cases you have the option of taking a personal grievance under the Employment Relations Act 2000, instead of going to the Human Rights Commission (see the chapter “Resolving employment problems”).

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