Partner at Cavell Leitch Law
Partner at Clark Boyce Lawyers
How to take action against harassment
If you are being harassed, you may be able to apply to the District Court for a restraining order under the HARASSMENT ACT 1997. This Act gives protection to victims of harassment who are not protected under the DOMESTIC VIOLENCE ACT 1995.
What kinds of behaviour can I get protection against?
Whether you can get protection under the Act depends on whether the behaviour in question comes within the meaning of "harassment" as the word is defined in the Act. Under the Act, "harassment" means a pattern of behaviour directed against you that includes doing to you any "specified act" on at least two separate occasions within a 12-month period.
A "specified act" is defined as:
- watching or loitering near your home, business, workplace or any other place that you go to for any purpose, or preventing or hindering you having access to or from that place
- following, stopping or accosting you
- entering, or interfering with, property in your possession
- making contact with you, whether by phoning you, writing to you or in any other way
- giving offensive material to you, or leaving it where you will find it or where it will be given to you or brought to your attention
- acting in any other way that causes you to fear for your safety, if a reasonable person in your circumstances would also fear for his or her safety
How do I obtain a restraining order?
If you are being harassed, you should apply to your local District Court for a restraining order to be made against the person harassing you (the "respondent"). The application is made "on notice", which means that the respondent is notified about your application. The court will hold a hearing, and the respondent is entitled to attend and be heard there.
You cannot apply for a restraining order if you are or have been in a domestic relationship with the other person. If that is the case, you will be covered by the protection offered under the DOMESTIC VIOLENCE ACT 1995 (see How to obtain a protection order under the Domestic Violence Act).
The preconditions for the court making an order
There are five preconditions that must all be met before the court will issue a restraining order. These are that:
- the perpetrator has harassed or is harassing you
- the order is necessary to protect you from further harassment
- the behaviour is causing you or threatening to cause you distress
- the behaviour would have the same effect on a reasonable person in your circumstances
- the degree of distress caused by the behaviour justifies the order being made
What is the effect of a restraining order?
A restraining order prevents the respondent from harassing or threatening to harass you. It also prevents the respondent from encouraging anyone else to harass you. The court can impose any special conditions that are necessary to protect you.
The order stays in force for as long as the court considers necessary.
What happens if the order is breached?
It is a criminal offence to breach a restraining order without a reasonable excuse. The penalty is a prison term of up to six months or a fine of up to $5,000. The maximum prison term increases for repeated breaches.
As well as making it a criminal offence to breach a restraining order, the Act also sets up a criminal offence of harassment that will apply even if a restraining order has not already been made. This offence is committed if:
- a person harasses you with the intention of causing you to fear for your safety or for the safety of a member of your family, or
- a person harasses you knowing that the harassment is likely to cause you, given your particular circumstances, to have such a fear
The penalty for this offence is a prison term of up to two years.
- The court will not make a restraining order unless all of the requirements of the Act are met. It is therefore important that you consult a lawyer to advise you as to whether a court would make an order in your situation and to assist you in applying for the order.