Getting protection under the Harassment Act
Overview
If you’re being harassed, you might be able to get:
- A Protection Order, if you’re harassed or threatened by someone who you’re in a family or domestic relationship with (including an ex or current partner, a flatmate, or a member of your whānau). For more information about Protection Orders, see: “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.
- A Restraining Order, if you’re being harassed or threatened by a stranger or someone in the community, or anyone else who doesn’t fit into the above category for a Protection Order.
The information in this chapter is about harassment by someone who you are not in a domestic relationship with, and how to take action to protect yourself under the Harassment Act 1997. You can apply to the District Court for a Restraining Order against the harasser. 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 seem innocent or trivial on its own may amount to harassment when put 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 either:
- obtaining a Restraining Order under the civil law parts of the Harassment Act, or
- meets the higher test for criminal harassment.
What should I do if I’m being harassed?
If you’re being harassed, you can:
- apply for a Restraining Order from the District Court under the “civil harassment” parts of the Harassment Act, and/or
- report the harassment to the police, who (if the harassment meets the criteria) can charge the harasser with a criminal offence. If convicted, they could be jailed for up to two years (see: “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.
If you get a Restraining Order against someone, they would then be committing a criminal offence if:
- they contact you in any way, or
- they do things like watch or hang around outside your home, or
- they follow you or stop you in the street, or
- they do 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.
If the order has been made because of a continuing act of harassment, it’s a condition of the order that the harasser must take reasonable steps to stop the act continuing. For example, if the harasser had posted offensive material about you online, they’ll have to take the offensive material down.
Will the harasser have a criminal record if I get a Restraining Order against them?
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: “What happens if someone breaches a Restraining Order”). In this way, a Restraining Order is similar to a Protection Order under the Family Violence Act.
Who can apply for a Restraining Order?
Harassment Act 1997, s 9, 11, 13, 14
Anyone who is being harassed (by someone that they’re not currently or previously in a family or domestic relationship with) can apply to the District Court for a Restraining Order.
You can apply at any time – there’s no time limit, but the judge will take into account how much time has passed since the behaviour when they’re deciding whether a Restraining Order is necessary to protect you.
It’s generally recommended to get a lawyer to help you with the application (see: “Will I need a lawyer to apply for the order”). If you’re under 17 years old, or if you have a welfare guardian appointed, you can apply for a Restraining Order with the help of a representative. Even if a representative makes the application for you, you should still have a chance to share your opinion.
Who can’t be given a Restraining Order?
Harassment Act 1997, ss 9(4), 12
If the criteria for a Restraining Order are met, an order can be made against anyone, except that:
- an order can’t be made against a child (that is, someone under 17 years old) 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: “Family violence and elder abuse”).
