Prohibited Behaviour Orders Act 2010

The Act rests on several definitional and structural concepts that determine scope and operation. The core objects are:

• Prohibited behaviour order (PBO): an order imposing constraints on a person’s otherwise lawful activities and behaviour to reduce the likelihood of committing another relevant (anti‑social) offence (s 3(1) definition; s 10(2)). The PBO is a statutory instrument made by a court (Pt 2).

• Relevant offence and anti‑social behaviour: relevant offences are those involving anti‑social behaviour, which the Act defines as behaviour causing or likely to cause harassment, alarm, distress, fear or intimidation to one or more persons, or damage to property (s 3(1)). The Act provides that a prescribed offence is to be taken to involve anti‑social behaviour in the absence of proof to the contrary (s 3(2)), giving regulatory actors power to streamline the characterisation of some offences.

• Constrained person: the individual to whom PBO constraints apply, who must be a natural person (s 4) and must have reached 16 years of age for the court to make a PBO (s 6(4)(c)). Youths are treated specially (Pt 2 Div 2). Adult is defined as 18+ and youth as 16-under‑18 (s 3(1)).

• Related prosecution and related sentence: PBOs are tied to a related prosecution and sentence. A prosecutor may apply after conviction and prior to sentencing (s 5), and the court may impose a PBO after sentence (s 6). The timing of when a PBO comes into force depends on whether the sentence is a term of imprisonment and whether it is suspended (s 11).

• Civil character of PBO proceedings: PBO proceedings are civil for all purposes (s 27(1)), the civil rules of evidence apply (s 27(2)), and questions of fact are determined on the balance of probabilities (s 27(4)). The practices of the court’s civil jurisdiction apply, including the Magistrates Court (Civil Proceedings), Children’s Court non‑criminal jurisdiction, and the District and Supreme Courts’ civil procedures (s 28(1)). The rules of criminal evidence do not apply (s 27(3)).

• Grounds test: the statutory gateway requires a pattern , a conviction for a relevant offence followed by another relevant conviction within three years; a likelihood of reoffending unless constrained; and appropriateness of imposing constraints (s 8(2)). This is a conjunctive test.

• Range of constraints: PBO constraints are deliberately wide and may limit lawful activities, including access to premises even where the constrained person has legal rights to be there (s 10(3)-(5)). The Act however preserves other statutory mechanisms where they conflict or duplicate specified orders (s 10(7)).

• Firearm‑specific measures: where PBOs constrain firearm possession or authorisations, the constrained person must surrender firearm items and authorisations to a prescribed person in a prescribed manner and period (s 30), with seizure powers where the constrained person fails to do so (s 31). The Commissioner of Police must effect notification to co‑licensees and responsible persons (s 32).

• Publication: the Department CEO must publish specified identifying material about constrained persons on a website unless a court orders otherwise (s 34). Publication is limited in certain respects (no exact address, protection for other children, and Children’s Court convictions) (s 34(3)) and republication by others is permitted (s 34(8)).

• Enforcement and sanctions: breach of a PBO is a criminal offence with sliding penalties tied to the forum of the original PBO (s 35). Additional offences are created around false answers to police firearm inquiries and allowing constrained persons access to firearm items by responsible persons or co‑licensees (s 32(3), (5)).

Each of these concepts has procedural and evidential mechanics set out in the Act: notice and hearing timing (ss 5-7, 33), admissible evidence (s 26), registrar duties for providing PBO copies (s 15), correction of clerical errors (s 25), and pathways for variation, extension or cancellation (ss 21-24). The Act also cross‑references other legislation , Sentencing Act 1995, Young Offenders Act 1994, Firearms Act 2024, Criminal Organisations Control Act 2012, Restricting Orders Act 1997 and the Criminal Procedure Act 2004 , which affects interaction with sentencing, youth welfare, firearm regulation and evidence procedures (see definitional cross‑references across Pt 1 and Pt 2).

The Act deliberately separates the civil adjudicative phase for PBOs from the criminal prosecution that generates the related conviction. That separation changes evidential burdens and remedies and allows courts to impose constraints tailored to future risk rather than to punish the historical offence. The text explicitly requires courts to weigh protection of others and property as a primary consideration against the hardship to the constrained person when deciding whether to make a PBO (s 9(1)-(2)).

The Act directly affects several discrete groups and public bodies; the statutory text identifies roles, duties and potential liabilities.

• Constrained persons: individuals who meet the statutory gateway (s 8) and against whom PBOs are made. They must comply with constraints on lawful activities and behaviour (s 10), surrender firearm items and authorisations where those constraints are imposed (s 30), respond to police questions about occupational access and co‑licensees (s 32(2)), and attend hearings or ensure they are properly served to preserve procedural rights (s 6(4)(d), s 33). Breach attracts criminal penalties (s 35), and constrained persons may apply to vary or cancel a PBO at any time (s 21).

• Prosecutors: a prosecutor in criminal proceedings may apply for a PBO after conviction and before sentencing (s 5). Prosecutors are parties to PBO proceedings (s 3(1) definition of party) and may apply to vary or cancel a PBO (s 21). The statutory posture gives the prosecutorial agency initiative and control over bringing PBO applications.

• Courts and registrars: the Magistrates Court, Children’s Court, District Court and Supreme Court may make PBOs per s 6. Registrars have duties to give hearing notices and to distribute copies of PBOs to parties and to the Commissioner of Police (ss 7(2), 15, 22). Courts decide whether grounds are made out, must consider protection of others as primary and balance hardship to the person (s 9), and may explain terms and effects to the constrained person (s 14). Courts also control publication by ordering suppression under s 34(4).

• Commissioner of Police and police officers: the Commissioner must be given copies of PBOs (s 15) and must instruct police to ask constrained persons occupational questions and then notify responsible persons and co‑licensees (s 32(2)-(4)). Police are given operational enforcement powers: to seize firearm items and firearms authorisations without a warrant where the constrained person has not complied with surrender requirements (s 31(1)), to use reasonable force (s 31(2)), and to deal with seized items in a prescribed manner (s 31(3)). Police are the public body charged with operational compliance.

• Responsible persons and co‑licensees: where a constrained person uses or has access to a firearm item in the course of occupation, the Commissioner must notify the responsible person or any co‑licensee named (s 32(4)). Those persons receive notice that it is an offence to permit the constrained person access in contravention of the PBO; failure to comply exposes them to fines and, for co‑licensees, possible imprisonment (s 32(5)).

• The Department CEO: the chief executive officer of the Department principally assisting in the administration of the Act must publish constrained person details on a website unless the court orders otherwise (s 34(2)). The CEO may request the Commissioner of Police to provide a recent photograph for publication (s 34(6)-(7)).

• Employers and others: persons whose businesses or workplaces involve firearm items, or who employ constrained persons who need access to premises or specific items, are affected by potential notifications (s 32), prohibitions on access (s 10), and the penalties that attach if they permit access contrary to a PBO (s 32(5)).

• Third parties who republish: the Act expressly permits republication of material published under s 34(2) (s 34(8)), which expands the audience and potential consequences of public disclosure.

Indirectly affected groups include victims and potential beneficiaries of protection from acts constituting relevant offences (s 9(1)(a)) and children and families where youth PBOs interact with child welfare laws (Pt 2 Div 2; s 18). The Act preserves the operation of child welfare laws and allows courts to adjourn youth PBO proceedings where another court or authority proposes action under child welfare law (s 18(2)-(3)). Youths have additional procedural protections drawn from the Young Offenders Act (s 19 and s 20).

Who pays: the constrained person bears the immediate costs of compliance (lost access to lawful activities, surrendering firearms, reputational costs from publication). Responsible persons and co‑licensees may bear enforcement risk and potential fines if they permit contravention (s 32(5)). The Commissioner of Police and registrars incur administrative costs for notification and seizure, and the Department incurs publication and website maintenance costs (s 34, s 15). Courts allocate time and resources to hear PBO applications and manage variations, cancellations and corrections (ss 6-7, 21-25).

Who decides: prosecutors decide whether to apply (s 5), but courts decide whether to make, vary or cancel a PBO (ss 6, 24). The Commissioner of Police coordinates enforcement and notifications (ss 15, 32), and the CEO decides on publication subject to court orders (s 34(2)-(4)).

The Act sets out specific duties for public officers, constrained persons, third parties and courts, and grants certain rights to parties to PBO proceedings. The main statutory duties and rights are as follows:

Duties of prosecutors and courts

• Prosecutor may apply for a PBO after conviction and before sentence (s 5). The application must follow rules of court (s 5(2)). This gives prosecutors the initiative and a duty to adhere to procedural rules when seeking a PBO.
• Courts must not make a PBO unless satisfied of grounds in s 8 and having had regard to matters in s 9 and, for youths, s 19 (s 6(4)(a)-(b)). The protection of other persons and property has primacy in s 9(1)-(2). Courts must explain the purpose, terms and effects of the PBO to the constrained person and the consequences of contravention; this must be done orally or in writing if the person is present, and in writing if not (s 14(1)-(2)). Where the constrained person does not readily understand English, the court must arrange an explanation in a practicable manner the person can understand (s 14(3)).

Duties and powers of registrars and the Commissioner

• Registrars must give hearing notices when PBO proceedings are adjourned for hearing (s 7(2)) and must cause copies of PBOs to be given to each party and the Commissioner of Police (s 15). Registrars also fix hearings and notify parties on applications to vary or cancel a PBO (s 22).
• The Commissioner of Police must receive copies of PBOs and arrange for police to question constrained persons about occupational access and co‑licensees, to complete parts of the PBO copy, and to notify identified responsible persons and co‑licensees in writing (s 32(2), (4)). The Commissioner must comply with requests to provide photographs to the CEO for publication (s 34(6)-(7)).

Duties on constrained persons and related offences

• A constrained person must comply with the constraints specified in a PBO from the time the PBO comes into force (s 11) and may be required to give up possession of firearm items and firearms authorisations to a prescribed person in a prescribed manner within a prescribed period (s 30(1)). If the constrained person was lawfully in possession before the PBO, they are not in breach while actually complying with surrender under s 30(3).
• A constrained person who fails to obey a PBO commits an offence with penalties varying by the court that made the PBO (s 35(1)). Proceedings for breach are brought in the Children’s Court for youths or the Magistrates Court for adults (s 35(2)).
• A constrained person who fails to answer or gives a false answer to police questions about occupational access or co‑licensees commits an offence with a specified penalty (s 32(3)).

Duties and liabilities for responsible persons and co‑licensees

• Once the Commissioner has notified a responsible person or co‑licensee that a PBO prohibits a constrained person’s access to firearm items, it becomes an offence for that responsible person or co‑licensee to allow the constrained person access contrary to the PBO (s 32(4)-(5)). Penalties are specified and substantial.

Rights and procedural protections

• Parties to PBO proceedings include the prosecutor and the person against whom the PBO is sought (s 3(1) definition). The constrained person must be present or personally given a hearing notice at least 7 days before the proceedings (s 6(4)(d)(i)-(ii) and s 33(2)(a)). If a hearing notice is posted, it must be posted at least 14 days before the hearing date (s 33(2)(b)).
• PBO proceedings are treated as civil proceedings; the civil rules of evidence apply and questions of fact are decided on the balance of probabilities (s 27). The constrained person has rights to have the court consider hardship (s 9(1)(b)), to apply to vary or cancel the PBO at any time while it is in force (s 21), and to seek correction of errors (s 25). If a related conviction is set aside or quashed, the PBO ceases to be in force at the conclusion of those proceedings (s 13).
• Courts may order non‑publication of details that would otherwise be published under s 34(2) if circumstances justify it (s 34(4)), and for youth PBOs the court must have regard to the youth’s wellbeing when considering suppression (s 34(5)).

Evidence‑related rights and mechanics

• The court may admit into PBO proceedings certain records and evidence used or disclosed in the related prosecution, including criminal records and transcripts, subject to the Criminal Procedure Act 2004 s 168 where relevant (s 26(3)). The Act permits the court to hear evidence from the related prosecution as part of its assessment (s 26(3)(b), (e)), but subjects the proceeding to civil evidentiary rules (s 27).

Regulatory and administrative rights and duties

• The Governor may make regulations to prescribe matters required or convenient to give effect to the Act (s 39). Regulations may set the manner and persons to whom firearm items and authorisations are surrendered and facilitate effective operation of firearm‑related PBOs (s 39(2)(a)-(b)). The Minister must carry out a statutory review of the Act’s operation three years after commencement of the review provision and lay the report before Parliament (s 40).

These duties and rights allocate responsibility for initiation (prosecutor), adjudication (court), enforcement (police/Commissioner), public disclosure (CEO), and compliance (constrained person, responsible persons/co‑licensees). Many statutory duties are implemented by subordinate instruments (rules of court, regulations) and administrative practice (police instructions), which the Act contemplates.

The Act creates a statutory enforcement architecture that combines civil ordering powers with criminal sanctions for contravention, administrative notification duties, search and seizure powers, and delegated regulatory prescription. The enforcement provisions are concrete and specify who may act and the penalties that can be imposed.

Breach of PBO

• A constrained person who breaches the PBO commits a criminal offence (s 35(1)). Penalties are tiered by the court that made the PBO:
  • Children’s Court: fine of $2,000 or imprisonment for 2 years or both;
  • Magistrates Court: fine of $6,000 or imprisonment for 2 years or both;
  • Supreme or District Court: fine of $10,000 or imprisonment for 5 years or both (s 35(1)(a)-(c)).
• Proceedings for breaches are to be brought in the Children’s Court for youths and in the Magistrates Court for adults (s 35(2)). That allocates forum and likely sentencing regimes.

Firearm compliance and seizure

• If a PBO prohibits possession of a firearm item or holding or obtaining a firearms authorisation, the constrained person must give up all such items and authorisations to a prescribed person, in a prescribed manner, within a prescribed period (s 30(1)). The Act contemplates regulations to prescribe the details (s 39).
• If the constrained person does not comply, a police officer may, subject to the Criminal Investigation Act 2006 s 31, without a warrant enter a place where a firearm item or firearms authorisation reasonably suspected to be in the constrained person’s possession is reasonably suspected to be and search for and seize it (s 31(1)). This is a statutory, warrantless power tied specifically to non‑compliance with the surrender obligation. The police may use any force reasonably necessary to exercise the power (s 31(2)). Seized items must be given to the Commissioner of Police and dealt with in the prescribed manner (s 31(3)).

Notification and liability for third parties

• The Commissioner of Police must instruct an officer to question the constrained person about occupational use or access to firearm items and to identify responsible persons and co‑licensees, completing the relevant part of the copy of the PBO (s 32(2)). A constrained person who fails to answer or gives a false answer commits an offence carrying a fine of $6,000 or imprisonment for 9 months or both (s 32(3)).
• The Commissioner must give written notice to responsible persons and any co‑licensee named, informing them of the PBO, prohibition, period, and that it is an offence to allow the constrained person access (s 32(4)). A responsible person who allows access commits an offence with a fine of $12,000; a co‑licensee who permits access commits a maximum fine of $12,000 or imprisonment for 12 months or both (s 32(5)). These are direct criminal liabilities on third parties.

Evidence and admissibility enabling enforcement

• The court may admit records and evidence from the related prosecution, criminal records, transcripts and records disclosed under the Criminal Procedure Act 2004 (s 26(3)(a)-(e)). PBO proceedings are civil, decided on the balance of probabilities, and the civil rules of evidence apply (s 27). The lower standard and admissibility profile facilitate courts assessing risk and making orders.

Procedural enforcement

• Registrars must give hearing notices and copies of PBOs and orders to parties and (where not a party) the Commissioner of Police (ss 7(2), 15, 24(3)). Service rules are specified (s 33): personal delivery or ordinary prepaid post to last known address, with minimum notice periods (7 days personal; 14 days by post). Where a party is served but fails to attend, courts may proceed (s 7(3), s 22(2)).

Defences and limits on enforcement

• The Act provides specified defences to contravention charges, including family dispute resolution, acting through a legal practitioner or authorised conciliator, acting in accordance with action taken under a written law, medical advice, or acting in an emergency that an ordinary person would do similarly (s 36(2)). These are statutory defences available in prosecutions for breach.
• A PBO is of no effect to the extent it requires unlawful consent or duplicates/conflicts with certain existing orders (s 10(6)-(7)). If the related conviction is set aside or quashed, the PBO ceases to be in force at the conclusion of those proceedings (s 13), which limits enforcement temporally where convictions are overturned.

Administrative corrections and appeals

• Registrars and courts can correct clerical or material descriptive errors in PBOs, subject to protection of public or constrained person interests (s 25). Courts can vary, cancel or remake PBOs on application or their own motion (ss 21-24), and appeals are available under specified statutes depending on the originating court (s 37). These mechanisms provide remedies that affect enforcement outcomes.

Regulatory backing

• Regulations may prescribe how firearm items and authorisations are to be surrendered and dealt with and otherwise facilitate effective operation of firearm‑related PBOs (s 39(2)). The framework therefore relies on subordinate instruments and police practice to effect enforcement in practice.

Overall, enforcement combines statutory criminal sanctions, administrative seizure powers (including warrantless entry under narrowly defined circumstances), notification‑driven third‑party liability, and civil procedural norms that lower evidentiary thresholds. The Act prescribes specific monetary and imprisonment penalties, allocation of jurisdiction for breach proceedings, and explicit defences and safeguards in relation to youth and child welfare matters.

The Act is drafted to sit alongside and interact with several other Western Australian statutes and regulations; the text explicitly cross‑references multiple pieces of legislation and limits or preserves other statutory processes.

Sentencing and related criminal procedure

• PBOs are tied to sentencing under other statutes. The Act defines "sentence" with reference to the Sentencing Act 1995 for adults and the Young Offenders Act 1994 for youths (s 6(1)). A PBO may be made after the related sentence is imposed (s 6(2)). Related prosecution evidence and records are admissible in PBO proceedings, referenced to disclosure and admission under the Criminal Procedure Act 2004 (s 26(3)). The rules of court relevant to civil proceedings apply (s 28), linking court practice to existing civil procedural regimes such as the Magistrates Court (Civil Proceedings) Act 2004 and Children’s Court non‑criminal jurisdiction (s 28(1)).

Youth and child welfare

• The Act expressly preserves child welfare laws and does not affect the jurisdiction or powers of courts and authorities under specified child welfare statutes (s 18(2)). Where a youth‑related PBO proceeding could affect or be affected by another court or authority proposing to make a child welfare order, the PBO court may adjourn until that action is taken (s 18(3)). Additionally, the Young Offenders Act provisions on principles and responsible adult attendance apply to youth PBO proceedings (ss 19-20), importing youth procedural protections and substantive principles.

Firearm regulation

• Firearm items and firearms authorisations in the Act use definitions from the Firearms Act 2024 (s 3(1)). The Act’s firearm surrender obligation (s 30), seizure powers (s 31), and notification duties (s 32) are integrated with the Firearms Act and subject to relevant provisions in the Criminal Investigation Act 2006 (s 31(1) caveat). Regulations under s 39 are authorised to prescribe the manner of surrender and dealing with firearm items and authorisations, and to facilitate operation of PBOs that restrict possession.

Other restraining and control regimes

• A PBO is of no effect to the extent it conflicts with or duplicates a listed class of orders and restraints, such as interim control orders or control orders under the Criminal Organisations Control Act 2012, restraining orders under the Restraining Orders Act 1997, or various release or community‑based sentence conditions under the Sentencing Act 1995 and Young Offenders Act 1994 (s 10(7)(aa)-(h)). The Act therefore explicitly defers to and coordinates with overlapping statutory regimes.

Evidence and criminal procedure

• PBO proceedings can admit records and evidence as defined in the Criminal Procedure Act 2004 where those records were disclosed under specified sections or otherwise admitted into evidence in the related prosecution (s 26(3)(a)). The Criminal Procedure Act’s s 168 applies, with necessary changes, to criminal records admitted in PBO proceedings (s 26(3)(c)(i)). However, PBO proceedings are civil; criminal rules of evidence are excluded (s 27(3)), and fact issues are decided on the balance of probabilities (s 27(4)). This alters the interplay between criminal standards and civil adjudicative procedure when the court assesses future risk.

Administrative law and liability

• The Act limits tortious liability for persons acting in good faith in performing functions under the Act (s 38(1)). The State, however, is not relieved of any liability it might have for another person doing such acts (s 38(3)), preserving potential public law remedies against the State even where individual officers are protected.

Publication and privacy

• The CEO must publish constrained person details unless the court orders otherwise (s 34(2)-(4)), but publication is limited to exclude identification of other children, exact addresses, and identification of offences in the Children’s Court (s 34(3)). Publication is authorised by the Act and thus interacts with privacy considerations and other laws that regulate publication and dissemination of personal and criminal justice information.

Regulations and subordinate instruments

• The Governor may make regulations under s 39 to prescribe matters required or convenient for the Act’s operation. The regulations are likely to detail procedural and operational matters that interface directly with other statutory frameworks such as the Firearms Act and Criminal Investigation Act, and rules of court will determine application and hearing practice (s 5(2)).

Amendment and commencement links

• The compilation table shows amendments linking the Act to other legislative changes over time (Road Traffic Legislation, Criminal Organisations Control Act, Courts and Tribunals Act, Firearms Amendment Act, Firearms Act 2024), which have altered definitions and procedural integration (compilation table). For example, firearm definitions were updated to align with the Firearms Act 2024 (s 3(1) and compilation table entries).

In sum, the Act is deliberately integrative: it piggybacks on criminal convictions and sentencing regimes, imports youth procedural protections, interfaces with firearm regulation and enforcement frameworks, defers to other statutory orders where duplication/conflict arises, and relies on subordinate instruments and court rules to operationalise details. These cross‑references both narrow and broaden the Act’s practical effects depending on how the linked statutes and regulations are applied.

The statutory text includes a compilation table showing amendments and commencement dates. The key amendments recorded in the Act text and compilation table are:

• Prohibited Behaviour Orders Act 2010 (No. 59 of 2010): original enactment with royal assent 8 December 2010. The Act commenced in phases: ss 1-2 on assent (8 Dec 2010) and the remainder by proclamation (the compilation table records commencement on 23 February 2011) (compilation table).

• Road Traffic Legislation Amendment Act 2012 (No. 8 of 2012) Pt 4 Div 43: listed in the compilation table and commenced, per table, on 27 April 2015 (compilation table). The Act notes s 10 was amended by No. 8 of 2012 s. 165 and s. 49 of 2012 s. 180; those in‑text amendment notes appear after s 10 and s 31 and s 39, indicating changed content in those sections (see marginal amendment notes).

• Criminal Organisations Control Act 2012 (No. 49 of 2012) s 180: amendment reflected and commencement listed as 2 November 2013 (compilation table). The Act’s s 10(7)(aa) cross‑refers to interim control orders or control orders under the Criminal Organisations Control Act 2012, indicating this amendment expanded the list of orders a PBO cannot conflict with.

• Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (No. 20 of 2013): Part 2 of that Act was made to apply to this Act by insertion of s 5A (No. 20 of 2013 s. 105), and Pt 3 Div 16 other provisions were applied; compilation table notes commencement 25 November 2013 or as otherwise specified (compilation table).

• Legal Profession Uniform Law Application Act 2022 (No. 9 of 2022) Pt 17 Div 15: listed with assent 14 April 2022 and commencement 1 July 2022 (compilation table). The in‑text annotation shows the Act had s 14 and other sections amended in 2022 (s 14 amended: No. 13 of 2022 s. 76 and 77; s 3 amended: No. 13 of 2022 s. 75; see in‑text notes). The exact text changes should be read in the current reprint.

• Firearms Amendment Act 2022 (No. 13 of 2022) Pt 3 Div 3: amendments affecting s 3 definitions, Part 3 heading, s 29, s 30, s 31, s 32 and s 39 are labelled as amended by No. 13 of 2022 s. 76 and 77 in the in‑text marginal notes. The compilation table shows assent 18 May 2022 and commencement 19 November 2022 where relevant.

• Firearms Act 2024 (No. 23 of 2024) Pt 17 Div 3 Subdiv 15: amendments in the Act refer to definitions of "firearm item" and "firearms authorisation" being taken from the Firearms Act 2024 s 5 (see s 3(1) and marginal notes). The compilation table notes assent 27 June 2024 and commencement 31 March 2025 for the Firearms Act 2024 provisions cited.

Other textual amendments and insertions

• Section 5A (Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies) was inserted by No. 20 of 2013 s 105 (in‑text note).
• Section 3 has marginal amendment notes showing amendments by No. 13 of 2022 s. 75 and No. 23 of 2024 s. 479; these changes concern defined terms and how prescribed offences are treated (s 3(2) added or amended).
• Multiple sections in Part 3 have annotation that they were amended by No. 13 of 2022 s. 76 and 77, consistent with the Firearms Amendment Act 2022 changes aligning PBO firearm provisions with the new Firearms Act definitions.

Reprints and publication

• The Act has been reprinted. The compilation table notes a Reprint 1 as at 22 September 2017 that included earlier amendments listed in the compilation table. The current text bears compilation notes up to the Firearms Act 2024 amendment entries.

Uncommenced provisions

• The compilation table and the uncommenced provisions table indicate a small number of provisions from related Acts (Courts and Tribunals (Electronic Processes Facilitation) Act 2013 s 106) remain to be proclaimed (uncommenced provisions table).

Practical effect of amendments

• The most substantive amendment theme visible in the text is alignment with the Firearms Act 2024 and the Firearms Amendment Act 2022: definitions (firearm item, firearms authorisation) and Part 3 enforcement mechanics were updated to reference and integrate with the new firearms framework (ss 29-32; marginal notes).
• Broader procedural integration with electronic court processes is referenced by s 5A and by the Courts and Tribunals Act amendments.
• Amendments expanding the list of orders with which a PBO must not conflict include reference to the Criminal Organisations Control Act 2012 (s 10(7)(aa)).

The compilation table in the Act is the authoritative internal ledger of amendments and commencement dates provided in the statute and should be consulted to track which amendments have taken effect. The Act requires review by the Minister three years after commencement of the review provision (s 40), which may produce further amendments or statutory reports.

The statute as provided does not list any judicial decisions or litigation outcomes. The text contains no named cases, no reported interpretations, and no judicial guidance; it is a standalone statutory instrument. The Act supplies appeal routes (s 37) to higher courts depending on which court made the PBO and how the Children’s Court was constituted. Those appeal pathways reference other statutes: Magistrates Court (Civil Proceedings) Act 2004 Part 7 for Magistrates Court decisions, Children’s Court of Western Australia Act 1988 ss 41 and 43 for Children’s Court decisions, District Court of Western Australia Act 1969 s 79 for District Court decisions, and Supreme Court Act 1935 s 58 for appeals from judges of the Supreme Court (s 37(2)-(6)).

Because the Act renders PBO proceedings civil for evidentiary purposes (s 27) and permits admission of criminal records and transcripts from the related prosecution (s 26), litigation arising from PBOs will likely centre on:

• Whether the statutory grounds in s 8 are satisfied on the balance of probabilities;
• Whether the constraints imposed are reasonably necessary and proportionate (s 10);
• Procedural fairness issues (service, notice, right to be heard) under s 6(4)(d), s 7, and s 33;
• Interaction with other statutory orders (s 10(7)) and child welfare laws (s 18);
• Validity of seizure and police powers under s 31, particularly the warrantless entry/search tied to failure to surrender firearms and use of force (s 31(1)-(2));
• Publication orders and suppression applications under s 34(2)-(5), especially for youth wellbeing considerations.

The Act contains specific in‑statute protections (e.g., s 36 defences, s 25 correction power with limits), but absent case law in the statute, it is not possible from the text alone to cite judicial constructions or established lines of authority. Practitioners will need to consult court decisions that have since interpreted these provisions to understand the applied standards for "reasonably necessary" constraints (s 10(2)), proportionality balancing under s 9, and admissibility of criminal records under s 26 and the Criminal Procedure Act 2004 s 168. The appeal provisions (s 37) outline the judicial hierarchy but do not supply reported case examples.

In short, the Act provides the statutory architecture and appeal routes but does not itself carry litigation history or jurisprudence. Any operational picture of how courts apply the Act in practice must therefore be built from subsequent case law and administrative practice outside the text of the Act.

The Act contains multiple provisions where operational detail, procedural nuance or unintended interactions can produce obstacles or risks if not anticipated. The points below set out the statutory features that commonly generate compliance or litigation issues:

1. Civil standard applied to orders tethered to criminal convictions (s 27)

• PBO proceedings are civil and decided on the balance of probabilities (s 27(1), (4)). This lowers the factual standard relative to criminal trials; evidence from the related prosecution (transcripts, records) may be admitted (s 26). Practitioners should not assume criminal evidentiary protections automatically apply in PBO hearings (s 27(3)).

2. Timing and service can drive waiver and default (s 6(4)(d), s 7(3), s 33)

• A court may make a PBO only if the person is present or personally given a hearing notice at least seven days earlier (s 6(4)(d)). However when a party is given a hearing notice but does not attend, the court may proceed and make orders (s 7(3)). Notices by post require a longer lead time (14 days) (s 33(2)). Failure to ensure proper personal service may result in the court proceeding in the party’s absence.

3. Presumption about prescribed offences (s 3(2))

• A prescribed offence is taken to involve anti‑social behaviour in the absence of proof to the contrary (s 3(2)). This can shift evidentiary burdens and facilitate meeting the "relevant offence" test under s 8. Practitioners should check which offences have been prescribed.

4. Broad constraints can override legal/equitable rights (s 10(5))

• A PBO may prevent entry to premises even when the constrained person has legal or equitable rights to be on those premises (s 10(5)). This has practical consequences for housing, tenancy, employment and access rights. The PBO cannot, however, require consent to an unlawful act (s 10(6)). Conflict resolution with other orders (s 10(7)) may be necessary.

5. Firearm surrender mechanics and warrantless seizure (ss 30-31)

• Courts may impose firearm surrender obligations (s 30). If the constrained person does not comply, police may enter without a warrant and seize reasonably suspected firearm items or authorisations, and may use reasonable force (s 31(1)-(2)). The Act makes seizure subject to the Criminal Investigation Act 2006 s 31, limiting but not eliminating police discretion. Practitioners should attend to prescribed details of surrender (who, how, when) in subordinate instruments (s 39).

6. Publication by default, republication permitted (s 34)

• Unless a court orders otherwise, the Department CEO must publish name, photograph, and town/suburb and constraints on a website (s 34(2)), and republication by others is expressly permitted (s 34(8)). This creates reputational risks and potential collateral consequences. A court can suppress publication under s 34(4), and youth wellbeing must be considered (s 34(5)). Forgetting to seek suppression might foreclose privacy protections.

7. Third‑party criminal liability (s 32(5))

• Responsible persons and co‑licensees face specified criminal penalties for allowing constrained persons access to firearm items after notice (s 32(5)). Employers and co‑licensees need to understand their exposure and may require administrative processes to block access.

8. PBO duration limits and extension mechanics (s 12, s 23)

• If no period is specified, a PBO defaults to the shorter of the community based sentence period or six months (s 12(2)). Where a specified period exists, it must fit statutory ceilings (community based sentence period or otherwise 6 months to 2 years) (s 12(3)). If an application to extend a PBO is filed and the constrained person has been served, the PBO does not expire until determination (s 23). Practitioners must track expiry and extension filings closely to avoid unintended lapses or unwitting extensions.

9. Corrections and errors (s 25)

• Registrars can correct clerical mistakes or material errors (s 25(1)), but not where correction adversely affects public or constrained person interests (s 25(2)). Procedural safeguards and checks should be in place to avoid adverse inadvertent corrections.

10. Interaction with child welfare laws (s 18)

• PBOs cannot displace child welfare jurisdiction (s 18(2)). Courts must adjourn youth PBO hearings where another authority proposes action affecting the youth (s 18(3)). Failure to account for concurrent child welfare processes may produce legal conflict or later invalidation.

11. Defence scope in breach prosecutions (s 36(2))

• The Act sets out specific statutory defences , family dispute resolution, acting through legal practitioners, action under a written law, medical advice, or emergency action an ordinary person would take , to charges under s 35 (s 36(2)). These defences may be narrower than practitioners expect in some factual matrices.

12. Registrar and Commissioner notification burdens (ss 15, 32)

• Registrars must provide copies of PBOs to parties and to the Commissioner (s 15). The Commissioner then must arrange police questioning and notification of responsible persons/co‑licensees (s 32(2)-(4)). Operational failure in these chains may leave parties uninformed and complicate compliance.

13. Limited cost recovery in PBO proceedings (s 28(2))

• Courts cannot order PBO parties to pay another party’s costs except in exceptional circumstances (s 28(2)). This contrasts with typical civil litigation cost practices and affects how parties litigate risk.

14. PBO ceases if conviction quashed (s 13)

• If the related conviction is set aside or quashed, the PBO ceases to have force at the conclusion of those proceedings (s 13). This temporal link means PBOs are contingent on the continued validity of the underlying conviction.

These "gotchas" highlight where statutory structure, timing, evidentiary standards and operational detail intersect to create compliance traps. Practitioners should map process flows (service, hearing, registrar duty, Commissioner notification, surrender timelines) and check subordinate instruments (rules of court, regulations specifying prescribed persons and manner for firearm surrender) to mitigate risk.

The Act sets out concrete procedural steps and mandatory acts. This section converts statutory requirements into an operational compliance checklist for prosecutors, constrained persons, responsible persons/employers, police, registrars and courts.

For prosecutors

• Consider and prepare PBO applications after conviction and before sentence in accordance with rules of court (s 5(1)-(2)). Ensure the application states how the s 8 grounds are met: (a) two convictions for relevant offences within three years; (b) likelihood of reoffending unless constrained; and (c) that a PBO is appropriate (s 8(2)).
• Furnish to the court materials admissible under s 26, including criminal records, transcripts and prosecution evidence, ensuring compliance with the Criminal Procedure Act 2004 disclosure obligations referenced in s 26(3)(a).
• Ensure hearing notices comply with the service rules (s 33): personal service at least 7 days before, or posting at least 14 days before. Keep proof of service to avoid court proceeding in the applicant’s absence being an issue (s 7(3)).

For constrained persons (and their legal advisers)

• Attend sentencing and PBO proceedings or ensure personal service of a hearing notice at least 7 days before the PBO proceedings (s 6(4)(d), s 33(2)(a)). If not present, be aware the court may proceed in absence (s 7(3)).
• If a PBO is made, carefully review its terms and the court’s oral/written explanation required by s 14. If English is not readily understood, request an interpreter or alternative explanation (s 14(3)).
• If the PBO imposes firearm constraints, identify prescribed surrender procedures and persons (s 30(1)) and comply promptly. Be aware the court may shorten the statutory period for surrender (s 30(4)). If unsure who is the prescribed person or what the prescribed manner is, apply to the court for clarification and consult regulations under s 39.
• If the constrained person uses or has access to firearm items through employment, the constrained person must answer police questions about responsible persons and co‑licensees (s 32(2)), since failing to answer or giving a false answer is an offence (s 32(3)). Seek legal advice before answering if necessary.
• If a PBO imposes undue hardship or the risk profile changes, apply under s 21 to vary or cancel; if extending a PBO is sought by the prosecutor, note s 23 keeps the PBO in force until determination.
• For breach prosecutions, be prepared to rely on statutory defences in s 36(2), where applicable.

For responsible persons, co‑licensees and employers

• On receiving notice from police/Commissioner that a constrained person has a PBO impacting access to firearm items, put in place administrative steps to prevent access (s 32(4)). Document steps taken as a record of compliance.
• Understand criminal exposure: responsible persons who permit access face a fine of $12,000; co‑licensees face $12,000 or imprisonment up to 12 months or both (s 32(5)). Seek legal advice on modifications to workplace access and security protocols.
• If the constrained person is a police officer or member of an armed force, the definition of responsible person differs (s 32(1)) and employer obligations should be checked with relevant employing authority.

For police and the Commissioner

• Upon receipt of a copy of a PBO (s 15), instruct officers to ask the constrained person occupational and co‑licensee questions and to complete the PBO copy with those details (s 32(2)(a)-(b)). Keep contemporaneous records of questions and answers to support enforcement and any future prosecutions for false answers (s 32(3)).
• Follow prescribed procedures for dealing with surrendered firearm items and authorisations, including receiving items from constrained persons and handling items seized under s 31. Ensure officers understand the trigger for warrantless entry/search (non‑compliance with s 30) and the limits imposed by the Criminal Investigation Act 2006 s 31 (s 31(1)).
• Where seizure occurs, ensure items are given to the Commissioner and dealt with as prescribed (s 31(3)). Make prompt written notifications to responsible persons and co‑licensees (s 32(4)), retaining copies of notices served.

For registrars and courts

• Issue hearing notices in line with the Act’s timing (s 7(2), s 33). Provide copies of PBOs to parties and to the Commissioner of Police unless the Commissioner was a party (s 15).
• When making PBOs, ensure the court records how it considered protections for others and degree of hardship to the person (s 9(1)-(2)), and provide the required explanation about the PBO to the constrained person (s 14). If the constrained person does not readily understand English, arrange appropriate explanation means (s 14(3)).
• Use s 25 to correct clerical or material mistakes but check that the correction will not adversely affect the public or the constrained person (s 25(2)). Ensure any variation, cancellation or replacement PBOs are disseminated to parties and the Commissioner as required (s 24(3)).

For the Department CEO and publication managers

• Implement secure publication processes in line with s 34(2) that publish name, photograph, town/suburb and constraints, while ensuring s 34(3) limits are respected (no exact address, no identification of other children, no identification of Children’s Court offences). Provide for court‑ordered suppression mechanisms (s 34(4)).
• Put in place policies to handle requests for photographs from the Commissioner of Police and to receive and publish photographs in a timely way (s 34(6)-(7)). Be prepared to remove or suppress content on court order.

Regulatory and rules oversight

• Check existing regulations and rules of court for prescribed details on firearm surrender, prescribed persons, and other operational matters (s 39). Where regulations are silent, consider applying to court for clarification or using the rules of court process to seek directions.

Document management and records

• Keep copies of all PBOs, hearing notices, proof of service, seizure receipts, notification letters and surrender receipts. The Act envisages formal circulation of documents (s 15, s 24(3), s 31(3), s 32(4)), and these are key evidentiary documents in enforcement and any appeal.

Appeals and litigation preparedness

• Where a party intends to appeal, identify the correct appellate route set out in s 37 and the relevant enabling statute for appeal practice. Preserve transcripts and records admitted in the PBO proceedings under s 26 to support appeal grounds.

Risk management

• For organisations employing persons who deal with firearms, update policies and training to account for third‑party criminal exposure (s 32(5)). For constrained persons, legal teams should plan to seek variances or cancellations where constraints cause disproportionate hardship relative to the risk reduction objective (s 9(1)-(2), s 24).

Following the statutory steps, the regulatory instruments and rules of court will provide the operational detail for prescribed persons, manner and periods for surrender and other practical matters. Regular liaison with the Commissioner’s office, courts and the Department (CEO) will reduce operational friction and legal exposure.