Personal Safety Intervention Orders Regulations 2021

The Regulations introduce or operationalise several concepts that are central to the Act's machinery. The first is prescribed corresponding interstate law. This is a closure rule: section 4 of the Act defines "corresponding interstate law" to include both laws that are declared by the Act itself and laws prescribed by the Regulations. Regulation 6 prescribes nine specific laws. The consequence is that an intervention order made under any of those nine laws can be registered and enforced in Victoria as if it were a Victorian personal safety intervention order. Conversely, a Victorian order can be enforced in those jurisdictions if their laws provide for reciprocity. The list is notable for what it omits: no laws from the Commonwealth, and no laws from non-Australian jurisdictions other than New Zealand. It also means that if a state amends its relevant law or passes a new one, the Victorian Regulations must be amended to pick it up or the new law will not be a corresponding interstate law. The concept thus creates a closed set of foreign orders entitled to recognition, limiting private choice for order holders who might wish to rely on orders from non-prescribed states.

The second concept is prescribed corresponding New Zealand law. Regulation 7 prescribes the Harassment Act 1997 (NZ) as the sole such law. This allows trans-Tasman enforcement of certain orders. It is a bilateral recognition mechanism that depends on New Zealand maintaining its own reciprocal arrangements. The narrowness of the prescription means that a New Zealand protection order under a different statute (for example, the Domestic Violence Act 1995) is not covered unless it falls within the Harassment Act's scope. The practical effect is that a person holding a New Zealand order under a non-prescribed law would need to apply for a fresh Victorian order rather than having it automatically recognised.

Third, the Regulations create the concept of prescribed time for reports. Under sections 72 and 75 of the Act, the court may ask for a report from the Secretary or the Department. The Regulations fix that time at 7 days. This is a mandatory deadline; the source does not indicate any power to extend it. If the report cannot be prepared within 7 days, the court may proceed without it, or the respondent may suffer prejudice if the report is late. The short time frame also imposes a real resource cost on the Department: it must prioritise these requests over other work.

Fourth, there is the concept of prescribed particulars for surrender directions under section 115. The Regulations split these into two categories depending on whether the direction is oral or written. For an oral direction given by an officer not in uniform, only two particulars are required: the officer's name and rank, and a warning about the offence. For a written direction (which can be given by any officer, uniformed or not), the list is eleven detailed items. This asymmetry reflects the fact that an oral direction is given in the field and cannot easily carry a long checklist, while a written direction can be more formal. But it also creates a risk: if a police officer gives an oral direction without stating their name and rank (for instance, because they are in uniform and think that dispenses with the requirement), the direction may be procedurally invalid. The source does not state that the particulars are mandatory for validity, but the use of "prescribed" and the reference to section 115(3) indicates they are required. A direction that omits a prescribed particular could be challenged as ultra vires, leaving the respondent with no obligation to comply and the officer with no power to enforce.

Fifth, the concept of prescribed way for disclosure requests under section 181. This means that only a written application in the specified form counts as a valid request. An oral request, a text message, or an email that does not include all the listed fields would not trigger the organisation's obligation to provide information. This protects organisations from informal fishing expeditions but also imposes an administrative burden on police to prepare the written application and on organisations to verify its completeness before disclosing. Organisations that disclose information in response to a non-compliant request may be in breach of privacy laws or other confidentiality obligations, because section 181(2) only authorises disclosure in response to a request made under that section.

The Regulations affect a range of actors. The most directly affected are police officers in Victoria. Any officer who directs a person to surrender a firearm, firearm authority, ammunition or weapon must now ensure that the direction includes the full set of prescribed particulars. For written directions, this means having a template or checklist ready, because the particulars are numerous and specific. Officers must also, when making an oral direction while not in uniform, state their name and rank and give the warning. Failure to do so could render the direction unenforceable, which may have consequences for public safety and for the officer's own accountability. Additionally, officers who wish to obtain information from organisations under section 181 must now write out a formal application with the prescribed fields; they cannot simply ring up or send an informal email.

Respondents to personal safety intervention orders are affected by the surrender provisions. A person who is the subject of a direction must surrender the specified items within the time stated in the direction, or within 48 hours if no time is specified. The 48-hour default is generous compared to some other Australian jurisdictions (where immediate surrender may be required), but the direction may specify a much shorter time. Respondents have the right to be given the prescribed particulars; if they are not given, the respondent may have grounds to argue that the direction is invalid and that no offence has been committed. This is a significant due process protection that limits the state's power to seize property summarily.

Organisations that hold information about respondents (such as telecommunications companies, financial institutions, or government agencies) are affected by the disclosure provisions. Once they receive a valid written application under section 181 that meets the prescribed format, they are required under section 181(2) of the Act to give the police officer the requested information. This obligation overrides any contractual or privacy-based restrictions on disclosure, because the Act provides a statutory exception. However, the obligation only arises if the application strictly complies with the Regulation. Organisations therefore must train staff to recognise a valid request and to refuse disclosure if any prescribed field is missing. The compliance cost falls on the organisation: they must verify the application, locate the information, and provide it, all without charge (the Regulation does not provide for cost recovery). For a large organisation with many requests, this can be a significant administrative burden.

Courts and the Department of Justice and Community Safety are affected by the 7-day reporting deadlines. When a court requests a report under section 72 or 75, the Secretary or the Department must produce it within 7 days. This is a tight turnaround for any report that might require investigations into a respondent's background, criminal history, or personal circumstances. The Department must prioritise these requests over other work, potentially delaying other functions. The court, on receiving a report after 7 days, may need to decide whether to adjourn proceedings or proceed without it. The source does not state what happens if the Department misses the deadline; presumably the court can still proceed.

Holders of interstate and New Zealand orders are indirectly affected because the Regulations define which foreign orders are recognised in Victoria. A person who obtains a protective order in, say, the Northern Territory under its Personal Violence Restraining Orders Act 2016 will be able to have it registered in Victoria. But a person from a non-prescribed jurisdiction (such as a person from the United Kingdom with a restraining order) will not. That affects the portability of protection and may require the person to start fresh proceedings in Victoria, incurring additional cost and delay.

The Regulations create or clarify several duties and rights, all of which are tied to provisions of the Act.

Duty to provide particulars when giving a surrender direction. Regulation 10(1) imposes a duty on a police officer who gives an oral direction under section 115(2)(a) while not in uniform to provide the officer's name and rank and a statement that non-compliance is an offence. Regulation 10(2) imposes a more detailed duty on an officer issuing a written direction under section 115(2)(b) to include all eleven listed particulars. This duty is not expressed as a separate offence, but failure to comply means the direction may not be a valid direction under the Act, so the officer's power to seize may be lost. The officer has a right to assume that if they comply, the direction will be enforceable.

Right of the person directed to receive the particulars. The corollary of the officer's duty is the respondent's right to be informed. When a person is told to surrender a firearm, they are entitled to know the officer's identity, the legal basis, the items to be surrendered, and the consequences of failure. This right functions as a due process safeguard against arbitrary state action. If the officer does not provide the prescribed particulars, the person may have a defence to a charge of failing to comply, because the direction was not given in the prescribed manner. However, the source does not explicitly say the direction is invalid without the particulars; that would be a matter for a court to determine. The person also has a right to a reasonable time to comply: either the time specified in the direction or, if none, 48 hours. The default 48-hour window is a genuine period to allow the person to locate the items and arrange surrender, rather than being forced to hand them over on the spot.

Duty to surrender within the specified time. Once a valid direction is given, the respondent must surrender the items at the specified place and time, or within 48 hours. This is a duty backed by criminal penalties under section 115(4) of the Act: 60 penalty units for a firearm and 30 penalty units for a firearms authority, ammunition or weapon. At the time of writing, one penalty unit under Victorian law is about $192, so the maximum fine is about $11,520 for a firearm and $5,760 for other items. This is not trivial. The duty is absolute; there is no defence of inconvenience or inability to transport the item, though presumably a person who does not have the item (e.g., it was stolen) could argue factual impossibility, which would be a defence to a strict liability offence.

Duty of the Secretary or Department to provide reports within 7 days. Regulation 8 and 9 impose a mandatory deadline on the bureaucracy. This duty is owed to the court. If the report is not provided in time, the court may proceed without it, but the Secretary or Department could potentially be subject to judicial criticism or even contempt if the failure is deliberate. There is no provision for extension. This duty creates an implicit right for the respondent and the applicant to have the matter dealt with promptly.

Duty of organisations to provide information upon a valid request. Regulation 11 prescribes the way a police officer must apply. An organisation that receives a valid application is required by section 181(2) of the Act to give the officer the information requested. The organisation's duty is triggered only if the application meets all the prescribed fields. The organisation does not have a discretion to refuse; the Act overrides any other law or contract that might prohibit disclosure. However, the organisation has a right (and arguably a duty to its own clients) to verify that the application strictly complies. If it discloses information in response to an invalid request, it may breach privacy laws or common law duties of confidence, and could be sued. Therefore, the organisation's duty includes a duty to assess compliance before disclosing.

Right of the police officer to receive the information. Once a valid application is made, the officer has a right to the information, enforceable through the Act's general enforcement provisions. The officer does not need a warrant, court order, or consent of the respondent. This is a significant power that shifts the burden of proof from the state to the organisation: the organisation must provide the information without delay.

The Regulations themselves do not create penalties; the penalties are in the Act. However, the Regulations reference two penalty provisions that are central to enforcement. The first is section 115(4) of the Act, which creates an offence for failing to comply with a lawful direction to surrender firearms, firearms authorities, ammunition or weapons. Regulation 10(2)(j) mandates that the written direction must include a statement of the penalty: 60 penalty units for a firearm and 30 penalty units for a firearms authority, ammunition or weapon. These are significant sums. The penalty is not expressed as imprisonment; it is a fine only. That suggests the legislature considered this a regulatory offence rather than a serious criminal offence. However, the penalty unit amounts are not trivial: at the 2024 value of about $192 per unit, 60 units equates to $11,520. For a person of modest means, that is a substantial penalty. The offence is likely strict liability (the Act does not state a mental element), meaning the prosecution only needs to prove the direction was given, the person did not comply, and the direction was lawful. There is no need to prove intent or recklessness.

Enforcement of the surrender direction is through the criminal justice system. If a person fails to surrender, the police can charge them and the matter will be heard in the Magistrates' Court. The police also have the power to seize firearms and weapons without a direction in certain circumstances under the Act, but the direction procedure is a less intrusive alternative. If the person resists, the police may also use reasonable force to effect seizure.

The second relevant enforcement mechanism is the requirement that organisations provide information. The Act provides that a failure to comply with a request under section 181 is an offence (presumably under section 181(3) or similar, though the source does not quote the penalty). The Regulations do not set out a penalty, but the Act itself likely provides one. Organisations that refuse or fail to provide information without a lawful excuse may face fines. The enforcement burden here falls on the police officer who made the request; they would need to take steps to compel compliance, possibly by applying to a court.

Beyond these specific provisions, the Regulations support the enforcement of interstate and New Zealand orders by defining which orders are recognised. If an order from a prescribed jurisdiction is presented to a Victorian court, the court can register and enforce it, effectively giving the order holder the same enforcement rights as if they held a Victorian order. This includes the power to apply for a variation or revocation, and the right to have the respondent arrested for breach. The enforcement of interstate orders reduces the need for victims to travel across borders to enforce protection, but it also requires the Victorian enforcement apparatus to deal with orders made under different legislative frameworks, which may have different standards of proof or definitions of prohibited behaviour.

The Regulations do not create any new court procedures or enforcement powers. They are purely procedural. Their contribution to enforcement is to make the Act's mechanisms operational and to reduce ambiguity. If the particulars were not prescribed, a directed person could argue that the direction was not sufficiently clear, or that they did not know the consequences. The prescribed particulars remove that ambiguity. Similarly, the prescribed way for disclosure requests reduces disputes about whether a request was properly made.

The Regulations interact with several layers of legislation. The primary relationship is with the Personal Safety Intervention Orders Act 2010 (Vic), which is the enabling act. The Regulations are made under section 185 of that Act and must be consistent with it. They fill gaps left by the Act, such as the list of corresponding laws and the time limits for reports. If the Act is amended, the Regulations may need to be amended to remain consistent.

The Regulations also interact with the interstate laws listed in regulation 6. Those laws are not Victorian law, but the Regulations make them relevant within Victoria. For example, the Criminal Code of Queensland (section 359A onwards deals with unlawful stalking and related offences) and the Criminal Procedure Act 1921 (SA) are not Victorian legislation, but by prescribing them as corresponding interstate laws, the Regulations allow Victorian courts to recognise orders made under them. This creates a form of interoperability that depends on both jurisdictions maintaining similar standards. If Queensland amends its Criminal Code to remove or change the orders that can be made, the Victorian Regulations must be updated or the old orders may cease to be recognised.

Similarly, the Regulations prescribe the Harassment Act 1997 (NZ) as the corresponding New Zealand law. This involves an interaction with New Zealand legislation and with the Trans-Tasman Proceedings Act 2010 (Cth) and related agreements. The Victorian Act and Regulations assume that New Zealand orders under that Act are sufficiently similar to Victorian orders to be enforceable. This is a legislative judgment that could be challenged if the Harassment Act is amended or if a New Zealand order does not meet Victorian standards of procedural fairness.

The Regulations also interact with the Subordinate Legislation Act 1994 (Vic), which imposes sunset provisions. The Regulations will automatically repeal on 17 August 2031 unless remade. This means that if the Act is still in force at that time, the government will need to remake these regulations (or new ones) to keep the system operational. Failure to do so would result in the loss of the prescribed interstate laws list, the time limits, the particulars, and the prescribed way for disclosure requests, leaving gaps in the Act.

The Regulations may also interact with firearm and weapons legislation in Victoria, such as the Firearms Act 1996 and the Control of Weapons Act 1990. The surrender directions under section 115 of the Personal Safety Intervention Orders Act are an alternative pathway to seize weapons; they do not replace the powers under those acts but add to them. The prescribed particulars in regulation 10 are specific to the PSIO Act; an officer using powers under other legislation would need to follow different procedures. This can be a compliance trap for officers who are more familiar with firearms law.

The Regulations also interact with privacy and information protection laws, such as the Privacy and Data Protection Act 2014 (Vic) and the Health Records Act 2001 (Vic). Section 181 of the Act overrides these laws when a valid request is made, but only if the request complies with the prescribed way. Organisations that hold personal information must be careful to distinguish between a valid request (which they must comply with) and an invalid request (which they may refuse without penalty). The prescribed way gives them a clear checklist.

Finally, the Regulations interact with the Interpretation of Legislation Act 1984 (Vic) as noted in the endnotes. The style changes and rules about headings, examples, and punctuation incorporated from that Act apply to the Regulations themselves. This is mostly technical but can matter for interpretation.

The source indicates that the Personal Safety Intervention Orders Regulations 2021 (S.R. No. 99/2021) were made on 17 August 2021 and came into operation on 29 August 2021. The Table of Amendments in the endnotes states: "There are no amendments made to the Personal Safety Intervention Orders Regulations 2021 by statutory rules, subordinate instruments and Acts." Similarly, the "Amendments Not in Operation" section states that this version does not contain amendments that are not yet in operation. This means that as at the version provided, the Regulations are in their original, unamended form.

The Regulations revoked and replaced the Personal Safety Intervention Orders Regulations 2011 (S.R. No. 89/2011). The 2011 regulations had been in force for ten years (from 2011 to 2021). The new regulations effectively continue the same scheme with any necessary updates, though the source does not detail differences. The 2021 Regulations will themselves sunset on 17 August 2031, ten years after making. This ten-year cycle is standard for subordinate legislation in Victoria under the Subordinate Legislation Act 1994.

Given that the Regulations are relatively recent and no amendments have been made yet, practitioners should monitor the Victorian Legislation website for any future amendments. The absence of amendments does not mean the Regulations are settled; they could be amended at any time by further statutory rules. The Government may also repeal and remake them before the sunset date if changes are needed.

The source material does not cite any case law, and the Regulations themselves are procedural, so there is no direct litigation history provided. The Regulations came into force in August 2021; as at the version date (which appears to be shortly after commencement), there would likely have been no significant court decisions interpreting them. However, the predecessor regulations (2011) may have been considered in cases concerning surrender directions or disclosure requests. Without access to those cases, we cannot say.

Potential areas of future litigation include: challenges to the validity of surrender directions that omit prescribed particulars; disputes over whether a disclosure request met the prescribed way (e.g., if a police officer omitted the respondent's gender or date of birth); questions about whether the 7-day deadline for reports is mandatory or directory; and arguments about whether an interstate order from a prescribed jurisdiction actually qualifies as a "corresponding interstate law" if the substance of the foreign law differs from the Victorian Act. The Regulations also raise an interesting issue: section 185 of the Act gives the Governor in Council power to make regulations "prescribing any matter or thing required or permitted by this Act to be prescribed, or necessary to be prescribed to give effect to this Act." A court could be asked whether the prescribed particulars are indeed "necessary" or whether they go beyond what is permitted. Similarly, the list of interstate laws could be challenged if it includes a law that is not genuinely corresponding in its substantive provisions.

Practitioners should be aware of several traps.

First, the surrender direction particulars are mandatory. If a police officer gives an oral direction while in uniform, the source says the officer need not provide name and rank. But if the officer is not in uniform, those details must be provided. The distinction is easy to miss. An officer who is in plain clothes but fails to identify themselves could later find the direction challenged. Moreover, for a written direction, the requirement to include the respondent's name, address and date of birth "if known" means that if the officer does not know them, that particular can be omitted. But if the officer does know them and omits them, the direction may be defective. The safest practice for police is to include all particulars on every occasion, regardless of whether they are "if known". The trap is that the Regulation says "if known", creating ambiguity about whether omission of a known detail invalidates the direction. A court could hold that it does, because the Regulation prescribes that particular.

Second, the 48-hour surrender period in a written direction applies only if no time is specified. The direction can specify a shorter time (e.g., "immediately", "within one hour", "by 5pm today"). If the direction says "immediately", the person must comply instantly. A person who leaves the scene to go home to retrieve a firearm could be prosecuted if the officer intended immediate surrender. The 48-hour default is a floor, not a ceiling. The Regulation does not require that the specified time be reasonable; it can be any time the officer chooses. This could be challenged as unreasonable, but the source provides no guidance.

Third, the disclosure request must be in writing. A police officer cannot make an oral request under section 181. If they do, the organisation has no obligation to comply and may be in breach if they do comply (because the disclosure would not be authorised). The prescribed way requires the application to set out the respondent's gender. If the officer does not know the gender, the application cannot be validly made, because the source does not include an "if known" qualifier for gender. This is a significant gap. The respondent's gender is a mandatory field with no exception. If the officer does not know the respondent's gender, they cannot make a valid application. They could guess, but if the guess is wrong, the application may be invalid because it sets out an incorrect fact. The only safe approach is to obtain the correct gender before making the application.

Fourth, the Regulations apply to firearms authorities as well as firearms themselves. A firearms authority includes a licence, permit, or registration. Directing a person to surrender a firearms authority means they must hand over the document, which effectively suspends or cancels their ability to possess firearms. The prescribed particulars for a written direction include a description of the item "if known". For a firearms authority, the description might be the permit number or type. If the officer does not know, they can omit that particular. However, the direction to surrender the authority is still valid; the person must surrender any authority they hold.

Fifth, the 7-day reporting time is tight. If the Department fails to provide the report within 7 days, the court may proceed anyway. The source does not say whether the court can extend the time. Practitioners should consider applying for an extension if the Department indicates it cannot meet the deadline, otherwise the report may be late and disregarded.

Sixth, interstate order recognition is limited to the prescribed laws. If a person has an order from a state not listed (e.g., an order from South Australia under the Summary Offences Act 1953 rather than the Intervention Orders (Prevention of Abuse) Act 2009), it will not be recognised as a corresponding interstate law. The person must check which statute their order was made under and whether it matches the prescribed names exactly.

For police officers, compliance with the surrender direction requirements is straightforward if a checklist is used. For an oral direction when not in uniform, the officer should say: "My name is [name], rank [rank]. This is a direction under section 115 of the Personal Safety Intervention Orders Act. You are required to surrender [description of item] to a police officer. Failure to comply is an offence punishable by 60 penalty units for a firearm or 30 penalty units for a firearms authority, ammunition or weapon." For a written direction, the officer or station should maintain a pro forma that includes all eleven fields and modify it as needed. The officer should ensure that the respondent's details are accurately recorded; if any detail is unknown, the pro forma should indicate "unknown" rather than leaving it blank. The direction should be served personally or, if that is not possible, left at the respondent's last known address. A copy should be retained for the police file. The officer should also record the date and time the direction was given, because the 48-hour period runs from that moment.

For organisations that receive requests under section 181, the compliance process is: receive the application; check that it is in writing; verify that it contains all the fields listed in regulation 11. If any field is missing, the request is not a valid request under section 181, and the organisation should not disclose the information. If all fields are present, the organisation must provide the requested information. There is no legislative mechanism to challenge the request or seek costs. The organisation should keep a record of the request and the disclosure to demonstrate compliance. If the information requested includes personal or sensitive data, the organisation should note that the disclosure is authorised by statute and therefore not a breach of privacy. However, the organisation should not disclose information beyond what is requested; the request itself should specify the information needed.

For respondents who receive a surrender direction, the primary compliance obligation is to surrender the items as directed. If the direction appears to lack the prescribed particulars, the respondent should nevertheless comply (arguing later if necessary) because the risk of prosecution is serious. However, if the direction is manifestly invalid (e.g., no officer name, no description of item), the respondent may wish to seek legal advice before complying, but must be careful not to be seen as refusing. The safest course is to surrender the items under protest and then challenge the direction in court. For the disclosure request, the respondent is not a party to that process; they are not notified. The respondent has no standing to object unless they discover the request later; they could potentially seek judicial review.

For courts, compliance with the reporting deadlines involves ensuring that requests to the Department are made early and that the 7-day timeline is understood. The court should not expect a report later than 7 days; if it receives a late report, it should consider whether to admit it.

For interstate order holders, compliance with registration requirements is governed by the Act, not the Regulations. The Regulations merely define which orders are eligible. The order holder should bring a certified copy of the order to the Magistrates' Court and apply for registration. The court will check that the order was made under a prescribed law. If the law is not prescribed, the application will be refused, and the order holder will need to apply for a fresh Victorian order.

For the Department of Justice and Community Safety, compliance means having systems in place to process report requests within 7 days. This may require prioritising these requests over other departmental work. The Department should also anticipate that a court may request a report orally; the request must be made in writing or, if oral, confirmed in writing to avoid disputes about the start of the 7-day period.

Overall, the Regulations reward meticulous adherence to form. The main compliance message is: read the prescribed lists, use checklists, and never rely on oral processes alone. The cost of compliance is administrative time, but the cost of non-compliance can be loss of enforcement power or legal exposure.