Harassment Act 1997

The Harassment Act 1997 is mainly a civil protection law. Its purpose is to give greater protection to victims of harassment by recognising that behaviour can look minor in isolation but amount to harassment when viewed as a pattern. The main remedy is a restraining order made by the court.

For business owners, that matters where repeated conduct affects a worker, manager or owner at the workplace, online, or around business premises. The Act can apply to conduct at a person’s business or employment, not just at home. It also says other remedies are not limited, so this Act can sit alongside employment, health and safety, privacy or police steps where those are relevant.

The Act applies where one person is being or has been harassed by another person and seeks a restraining order. It is not limited to strangers. It can cover customers, former customers, neighbours, competitors, ex-employees, members of the public or others who repeatedly target a person connected with a business.

But there is an important limit. A person who is or has been in a family relationship with the other person cannot apply under this Act for a restraining order against that person. The Act uses a broad family relationship concept, including current or former spouses, civil union partners, de facto partners and family members. Those cases are directed to family violence law instead.

The Act defines harassment as a pattern of behaviour directed against a person. Usually that means doing a specified act on at least 2 separate occasions within 12 months. The specified acts can be the same type or different types. The Act also covers one continuing act carried out over a period, including offensive material placed in electronic media that remains there for a protracted period.

Specified acts include watching or loitering near a person’s residence, business, employment or another place they frequent, following or accosting them, entering or interfering with property in their possession, making contact by phone, correspondence or electronic communication, giving offensive material, and other conduct that causes fear for safety and would do so for a reasonable person in that person’s circumstances.

The court may make a restraining order if it is satisfied of several things. First, the respondent has harassed or is harassing the applicant. Second, the behaviour causes distress or threatens to cause distress to the applicant, and would cause distress or threaten distress to a reasonable person in the applicant’s particular circumstances. Third, the degree of distress must justify an order. Fourth, the order must be necessary to protect the applicant from further harassment.

This matters for businesses because not every difficult customer or online critic will meet the test. The focus is on repeated or continuing conduct, the effect on the person, and the need for protection. The Act also says a respondent who encourages another person to do a specified act is treated as having done that act personally.

The Act contains an important defence. A specified act cannot be relied on to establish harassment for the purpose of making a restraining order if the respondent proves the act was done for a lawful purpose. That means context matters. Some contact, attendance or communication may be legally justified even if it is unwelcome.

For businesses, this is a reminder to separate genuine enforcement or operational steps from conduct that has become personal, excessive or threatening. For example, ordinary debt collection, service of documents, complaint handling or lawful attendance at a public place may need careful analysis. The fact that conduct is connected to a business dispute does not automatically make it lawful for this Act. Equally, the fact that someone feels upset does not automatically make the conduct harassment.

Every restraining order carries standard conditions. Unless a special condition allows it, the respondent must not do or threaten any specified act to the protected person, and must not encourage anyone else to do a prohibited specified act. If the order relates to a continuing act, the respondent must take reasonable steps to prevent that act from continuing.

The court can also impose special conditions that are reasonably necessary to protect the person from further harassment. The order can apply not only to the main respondent but also, by direction, to another person whom the respondent has encouraged to do specified acts, if the statutory test is met. Orders can be made for a period the court considers necessary, whether longer or shorter than one year.

Once a restraining order is in place, breach is serious. A person commits an offence if, without reasonable excuse, they do an act in contravention of the order or fail to comply with a condition of it. The Act sets criminal penalties, including a higher maximum imprisonment term in some repeat-offending situations.

The Act also gives Police practical powers in some cases. If a complaint is made and the complainant does not know the alleged harasser’s name or address, a constable who has reasonable grounds to suppose the person is harassing or has harassed the complainant may require that person to give their name and address, and may require satisfactory evidence if the details appear false.

Police may also disclose identifying information to a court Registrar to help a person apply for a restraining order, with confidentiality protections around that information.

For many SMEs, the first challenge is not legal theory but evidence and response. The Act uses a pattern-based test, so records are critical. A business should be able to show dates, times, locations, communications, witnesses, and how the conduct affected the person. Because the Act refers to distress, safety and continuing acts, records should also show escalation, repetition and any ongoing online presence.

Employers should also respond as employers. If a worker is affected, consider immediate safety planning, rostering changes, reception instructions, visitor management, online moderation, and support for the worker. If the alleged harasser is an employee, contractor or customer, the business may need to use internal disciplinary, access-control or service-refusal processes as well. The Act does not replace those operational steps.

Applications for restraining orders must be made on notice to the respondent and to any person against whom a direction is sought so the order also applies to them. The Act also deals with applications by minors, applications on behalf of certain people who are unable or unwilling to apply personally, variation and discharge of orders, and appeals to the High Court and, with leave, to the Court of Appeal.

The court may also protect privacy in proceedings. It can restrict publication of evidence, submissions, names or identifying particulars, and can exclude people from all or part of the proceedings where appropriate. That can matter for businesses where publicity may increase risk, expose staff, or spread harmful material further. Appeals do not automatically suspend the operation of an order unless the court directs otherwise.