Have you ever been harassed and thought there was nothing the law could do for you because you are not married or in a de facto relationship? Alice Ferguson of Timpany Walton outlines the Harassment Act 1997 and the protection it offers to people not covered by domestic violence laws.

The Harassment Act 1997 ("the Act") makes harassment a criminal offence, as well as establishing a regime to protect individuals from civil harassment, through restraining orders.

The Act came into force on 1 January 1998 except for Part 3, relating to 'civil harassment', which came into force on 1 May 1998.

Harassment is defined in section 3 of the Act. A person harasses another if they engage in a pattern of unwanted behaviour directed against that other person. That pattern of behaviour includes doing any 'specified act' to another on at least two separate occasions within 12 months.

The 'specified acts' may be the same type of act on each occasion or different types. Interestingly, they need not be done to the same person on each occasion, as long as the pattern of behaviour is directed against the same person. This gives additional scope to the legislation and fits with the object of the Act, which is to give greater protection to victims of harassment. It recognises that behaviour which appears innocent or trivial when viewed in isolation may amount to harassment when viewed in context.

'Specified acts' are central to the definition of harassment. The legislation defines them as any of the following:
- watching, loitering near or preventing or hindering access to or from a person's home, business, employment or any other place;
- following, stopping or accosting a person;
- entering or interfering with a person's property;
- making contact with a person, whether by telephone, correspondence or any other way;
- giving offensive material to a person, or leaving that material where it will be found by, given to, or brought to the person's attention;
- acting in any other way that causes someone ("A") to fear for their safety, where a reasonable person in A's particular circumstances would be afraid. This includes the situation where acts are done to someone else ("B") in A's family and the doing of the act is due to that family relationship. In this case it does not matter whether or not the acts cause B to fear for their safety.

Criminal Harassment

It is a criminal offence to harass another person where it is intended to cause that person to fear for their safety, or the safety of anyone in their family.

It is also an offence if the harasser knows that the harassment is likely to cause the person to fear for their safety or that of someone in their family.

Anyone who is convicted of one of these offences can be imprisoned for up to two years.

Civil Harassment

Anyone who has been or is being harassed may ask the Court for a restraining order. This is similar in effect to a protection order issued under the Domestic Violence Act 1995. A restraining order has standard conditions:
- that a respondent (the person against whom the order is made) must not do or threaten any specified act to the applicant (the person for whose protection the order is made);
- that a respondent must not encourage anyone to do a specified act against the applicant, where that act, if done by the respondent, would be prohibited by the order.

The Court may also impose special conditions to protect the applicant from further harassment.

A restraining order lasts for as long as the Court considers it necessary to protect the person from further harassment. The order continues until either the court removes it or the period set by the Court expires. If the court does not specify its duration, the order expires one year from when it was made.

Anyone who contravenes a restraining order commits an offence. If convicted, they can be imprisoned for up to six months or fined up to $5,000. If they have already been convicted twice within the previous three years, the penalty then increases to two years' imprisonment.

Family Situations Not Covered

The Harassment Act is not designed to deal with disputes between family members or people who have previously been in a relationship (the Domestic Violence Act 1995 applies to these situations instead).

Section 9 says that if you are or have been in a domestic relationship with another person you may not apply for a restraining order under the Harassment Act. A person is in a domestic relationship with another if they are partners or family members, if they ordinarily share a household or if they have a close personal relationship.

Summary

The Harassment Act aims to increase protection to victims of harassment by recognising that behaviour which may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context. The Act aims to ensure there is adequate legal protection by:
- making the most serious types of harassment criminal offences;
- empowering the court to protect victims of harassment who cannot use domestic violence legislation; and
- providing effective legal sanctions against harassment.

The Harassment Act is a relatively little used piece of legislation. It may be compared in some respects with the Domestic Violence Act which allows for protection orders similar to restraining orders under the Harassment Act. However, applications for orders under the Domestic Violence Act have flooded the court system, while Harassment Act applications are relatively rare.

That there is a specific piece of legislation dealing with these matters may be seen as a recognition that, although harassment by a stranger is relatively rare, the matter is serious and should be treated in that way by the courts.

Copyright The Lawlink Group Ltd 2000

Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.


Alice Ferguson is a solicitor with the Timaru Lawlink firm of Timpany Walton. Alice practises in employment and family law and civil and criminal litigation.

Web site: Timpany Walton



Email: alice.ferguson@timpanywalton.co.nz

April 2000