THE PROTECTION FROM HARASSMENT ACT 2014

• Date: 01 December 2014
• Author: GOH Yihan LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate and Solicitor (Singapore); Associate Professor, School of Law, Singapore Management University. YIP Man LLB (Hons) (National University of Singapore), BCL (Oxford); Advocate and Solicitor (Singapore); Assistant Professor, School of Law, Singapore Management University.
• Published date: 01 December 2014

Comment

Legislative Comment

The Protection from Harassment Act 2014 (“Act”) was passed by Parliament on 13 March 2014 following its Second Reading. The Act is a culmination of a concerted ministerial effort to bring about legislative change to the laws governing harassment. Bringing together the background to the Act, its general structure and its specific provisions, this article aims to add to the undoubted long list of commentaries on the Act and, it is hoped, contribute to the understanding and enforcement of the Act.

I. Introduction

1 The Protection from Harassment Act 2014 (“Act”) was passed by Parliament on 13 March 2014. The Act is a culmination of a concerted ministerial effort to bring about legislative change to the laws governing harassment. This effort first gained public prominence in November 2013, when the Institute of Policy Studies held a Conference on Harassment in Singapore.1 Bringing together the background to the Act, its general structure and its specific provisions, this comment aims to contribute to the enforcement of the Act. Its purpose is therefore intentionally not to thoroughly evaluate the Act, but to look at relevant material in aiding its enforcement.

II. Background to the Act

A. Inadequate previous protection

(1) Limitations of common law protection

2 By way of background to the Act, the common law did not always afford protection against harassment. This is because harassment involves disturbance short of actual psychiatric or physical damage outside of the victim's property. The law of torts protects against such disturbance, including excessive noise, by way of actions in property-related torts such as nuisance. Specifically, the tort of private nuisance protects the right of a person who has possession of land to enjoy his premises undisturbed. The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.2 In Epolar System Enterprise Pte Ltd v Lee Hock Chuan,3 the Court of Appeal recognised these principles and held further that generally, only a person with a proprietary interest, whether by virtue of his freehold or leasehold interest, can sue in the tort of private nuisance. Mere occupation is not enough. Thus, a person who is a mere occupier, even if the wife of the husband-owner, cannot sue. This is further illustrated by the English case of Malone v Laskey,4 where the wife of the manager of a company entitled to live in the affected premises by virtue of her husband's employment was held not to have standing to sue in private nuisance.

3 However, the protection of privacy cannot stop there, especially where there is no property interest which precludes an action in these torts. This covers a wide range of situations like the one illustrated in Malone v Laskey. Many times, the occupier of the premises came into occupation by virtue of a relationship with the owner, such as wife, child or friend. Yet, in these cases, the English cases have held that there is no recourse for disturbance caused to them while on the premises. In order to alleviate the harshness of the situation, the English Court of Appeal in Khorasandjian v Bush5 held that the daughter of the mother-owner had the right to sue in private nuisance. Dillon LJ thought that it was “ridiculous” that in the light of changed social conditions:6

… the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or leasehold proprietary interest in the premises in which he or she has received the calls.

4 However, this decision was overturned by the House of Lords in Hunter v Canary Wharf.7 In that case, Lord Goff of Chieveley held that an action in private nuisance will only lie at the suit of a person who has a right to the land affected.8 Thus ended the English courts' attempt to extend the tort of private nuisance to afford some protection to victims of harassment. However, it must be said that the English position towards such victims is not so dire: there exists the UK Protection from Harassment Act 19979 that affords statutory protection for victims of harassment.

5 The other non-property-related torts fare no better. It is of course trite law that a person who suffers physical harm or the threat of imminent physical harm can sue in battery and assault respectively. Thus in Amutha Valli d/o Krishnan v Titular Superior of the Redemptorist Fathers in Singapore,10 the High Court defined battery as the actual affliction of unlawful force on a person, and assault as an act which causes another person to apprehend the infliction of immediate, unlawful force on his person.11 A person who is harassed does not generally fall within these definitions. There is normally no unlawful force on victims of harassment, since harassment usually takes the form of unwanted stalking or contact through other means, for example, telephone calls or e-mails. There is also normally no apprehension of battery (thus constituting assault) because the unwanted contact is usually through written communications, thereby possibly negating the immediacy that is required for assault to be established.

6 These shortcomings in the law of torts led the Singapore courts to develop a tort of harassment more than ten years ago. In Malcomson Nicholas Hugh Bertram v Naresh Kumar Mehta12 (“Malcomson”), Lee Seiu Kin JC (as he then was) created a new tort of intentional harassment, which had hitherto not been recognised elsewhere. Lee J defined “harassment” to mean:13

… a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person.

7 However, quite apart from the impracticality of resorting to expensive litigation to resolve harassment issues, even the creation of this new tort turned out to be insufficient protection for victims of harassment. Indeed, the very existence of the common law protection became unclear following AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan14 (“AXA Insurance”). In that case, the High Court held that, since the tort of harassment was essentially a new tort, its creation should be by Parliament through its process of deliberation and debate by members accountable to the public. The status of the tort of harassment therefore became unclear in Singapore.15

(2) Limitations of statutory protection

8 The common law tort of harassment aside, there was some statutory protection against harassment in Singapore. This was, however, spread over several statutes and none was targeted specifically at harassment. The protection arises from the criminalisation of certain acts deemed to be against the public order,16 or as part of the general criminal law.17 More specifically, protection may be accorded in the form of a protection order in the Women's Charter, but that is premised on there being a familial relationship between the parties concerned.18

9 The problem with these statutory protections, quite apart from their piecemeal nature, lay in terms of remedies. In this regard, most of the statutes are criminal in nature and did not generally offer compensation in the civil sense wherein the victim is compensated monetarily for harm caused by the harassing conduct.19 More prominently, there is no general injunctive relief for harassment unless it occurred in the familial context.

B. Institute of Policy Studies Conference on Harassment

10 All of these problems prompted the organisation of the Conference on Harassment in Singapore: Realities, Conundrums and

Approaches Moving Ahead, which was held on 18 November 201320 (“Conference”). The proceedings of the Conference might have been instrumental to crystallising the problems considered in the drafting of the Act. Indeed, the Minister for Law, Mr K Shanmugam noted that, based on public feedback, there was a sense that the laws at the time were inadequate to deal with harassment.21

11 In addressing these inadequacies within the present framework of legal protection against harassment, Mr Shanmugam said that it would be useful to look at standalone legislation enacted to protect against harassment in the UK, New Zealand and South Africa.22 In contrast, he also noted that there is comprehensive state or territory legislation, which is not necessarily general in nature, providing for criminal as well as civil remedies for harassment in Australia and some states in the US. It is suggested that these sources may help inform our understanding of the Act, particularly the origins of its provisions.

C. Parliamentary passage of the 2014 Act

12 It was against the above backdrop that the Act was presented and passed in Parliament. The Act was first read on 3 March 2014. This generated significant press coverage and discussion,23 much of which was positive. The second, more significant, event was the Act's Second Reading on 13 March 2014. The following sections will discuss the outline and operation of the Act with reference to the Minister's Second Reading speech.

III. Outline and general provisions of the 2014 Act

13 The Explanatory Statement provides that the Act “seeks to make provisions to protect persons against harassment and unlawful stalking, and to make consequential amendments to other written laws”. To that end, the Act consists of 22 sections and is organised into four main

parts: Preliminary (Pt I), Offences (Pt II), Remedies (Pt III) and General (Pt IV). Part I, comprising ss 1 and 2, consists of preliminary provisions, including the important provisions dealing with the interpretation of certain expressions in the Act. Perhaps the most striking characteristic of the interpretative provisions is that they do not set out a definition of “harassment”. Part II, comprising ss 3–10...