Prohibited Behaviour Orders Regulations 2011

Anti‑social behaviour is the central gateway concept, but the Regulations do not define it directly. Instead, they prescribe that each offence listed in Schedule 1 column 1, committed in the circumstances specified in column 2 (if any), is an offence that the Act takes to involve anti‑social behaviour under section 3(2). That means that if a person’s conduct satisfies the elements of any of those offences, the conduct is deemed anti‑social regardless of its actual nature or impact. The list is extremely broad, covering offences from lighting a bushfire likely to injure (Bush Fires Act s 32) to careless driving (Road Traffic Act s 62), indecent acts, stalking, common assault, stealing a motor vehicle or property valued under $1,000, burglary punishable summarily, possessing prohibited drugs, seeking a prostitute in a public place, and numerous public order offences under the Criminal Code such as disorderly behaviour (s 74A) and fighting in public causing fear (s 71). The concept of “prescribed offence” therefore determines the catchment of persons eligible for a PBO. A constrained person is a person subject to a PBO, but the Regulations only use that term in the context of firearms surrender (regulation 5). For firearms, the key concept is the prescribed period: 24 hours from the making of a section 29 PBO (firearm‑related) or an order varying a PBO into a section 29 PBO, unless the court orders a shorter period. That is the window during which a constrained person must give up their firearms authorisation and any firearm items in their possession. The term co‑licensee is defined in regulation 3 as another person who holds a firearms authorisation for the same firearm item as the constrained person. This recognises shared ownership or licences but gives the co‑licensee only a claim right, not a right to immediate possession pending police custody. The Commissioner is the Commissioner of Police, who holds surrendered or seized firearms and authorisations in safe custody under regulation 6 until claimed or lawfully disposed of. The Regulations also introduce CEO by reference to section 34(1) of the Act, which is the chief executive officer of the department responsible for administering the Act, for the purpose of receiving publication information from registrars. These concepts create a clear hierarchy: the Act establishes the PBO regime, the Regulations enlarge its scope by specifying what anti‑social behaviour means in practice, and the firearms provisions allocate responsibilities and timelines among constrained persons, co‑licensees, police and the Commissioner.

The Regulations, by their nature as delegated legislation, affect a broad set of people who come into contact with the criminal justice system in Western Australia. Most directly affected are persons convicted of or charged with any of the hundreds of offences listed in Schedule 1. That list sweeps across many statutes: the Criminal Code (about 30 offences), the Bush Fires Act, the Criminal Investigation Act, the Liquor Control Act (about 10 offences concerning juvenile drinking, remaining near licensed premises, and re‑entry), the Misuse of Drugs Act (three sections covering possession, manufacture and cultivation), the Prostitution Act, the Public Transport Authority Act and its regulations, the Road Traffic Act (about 15 offences including careless driving, driving under the influence, and causing excessive noise or smoke), and the Weapons Act. This means that even relatively minor offences - such as disorderly behaviour, careless driving (which may include momentary inattention), possessing a small amount of a prohibited drug, or a juvenile drinking in a public place - can trigger the anti‑social behaviour label. Consequently, a vast number of people who come before the courts for summary offences become eligible for a PBO, subject to the Act’s other criteria. Persons subject to a PBO that includes a firearms surrender condition are additionally affected. They must surrender any firearms authorisation and any firearm item in their possession within 24 hours. That is a severe and immediate restriction on property rights and any lawful business or sport involving firearms. Co‑licensees - such as a spouse or business partner who holds a firearms authorisation for the same firearm - are also affected because they lose immediate access to the firearm while it is held by the Commissioner. They may claim it, but only under a procedure subject to the Commissioner’s satisfaction that they are entitled to lawful possession, and only subject to the Firearms Act 2024. The courts and registrars are affected administratively: registrars must compile and send notice of PBOs to the CEO, creating a new data‑sharing obligation. The police force, particularly the Commissioner, is affected by the duty to hold firearms in safe custody and to process claims. Finally, the CEO (the department head) receives personal information about constrained persons, which may have privacy implications. The Regulations impose compliance costs on all these parties: the constrained person must act quickly, co‑licensees must navigate a claim process, and police and court officers must allocate resources to handle surrenders, custody and notifications.

The Regulations impose two main categories of duties: surrender duties on constrained persons and notification duties on registrars. Under regulation 5(3), a constrained person who is given a PBO described in section 29 of the Act (a firearm‑related PBO) or an order varying a PBO to include such a condition must, within the prescribed period of 24 hours (or a shorter court‑ordered period), give their firearms authorisation to a police officer at a police station, and if they are in physical possession of a firearm item, give it to a police officer at a police station or to a co‑licensee if one exists. This duty is absolute and immediate; there is no exception for hardship, travel distance, or incapacity. Failure to comply would presumably constitute an offence under the Act (section 30(5) likely creates a penalty, but the Regulations do not themselves state it). Constrained persons also have a right, after the PBO ceases to be in force, to claim their firearm item or firearms authorisation from the Commissioner under regulation 7(2). However, that right is heavily qualified: the claim must be in a form approved by the Commissioner; the Commissioner must give the item to the claimant subject to regulation 7(5); and importantly, the Commissioner is not required to return a firearm item or firearms authorisation if not satisfied the person is entitled to lawful possession under the Firearms Act 2024. That means even after the PBO ends, if the constrained person’s firearms licence has expired or been cancelled, or if they are otherwise prohibited, the item may be retained or disposed of. Co‑licensees have a right under regulation 7(1) to claim a firearm item held by the Commissioner, again in a form approved by the Commissioner. But that right is subject to the Commissioner’s functions under the Firearms Act 2024, Part 4 Division 8 or 9, Part 8, or any other provision, and to the Commissioner’s satisfaction as to lawful possession. Co‑licensees therefore do not have an automatic entitlement; the Commissioner can refuse if there are concerns about their fitness or legality. Registrars have a duty under regulation 8 to provide written notice to the CEO of the constrained person’s name, town or suburb, and the constraints imposed, whenever a PBO is made. Upon variation, they must provide changes; upon cancellation, they must provide notice of that fact. This duty arises after the court makes the order, and the notice must be given to the CEO. The CEO’s role in using or publishing this information is not specified in the Regulations, so there is an implicit duty on the CEO to handle the data responsibly, but the Regulations impose no express obligation on the CEO. Overall, the rights created are procedural and conditional, while the duties are strict and time‑limited.

The Regulations themselves do not create or prescribe any penalties. Section 30 of the Act is the source of penalty for failure to comply with a PBO or with surrender requirements. However, the Regulations set the timeline that triggers the penalty. Regulation 5 defines “prescribed period” as 24 hours or a shorter court‑ordered time. If a constrained person fails to surrender a firearm item or authorisation within that period, they are likely in breach of section 30(5) of the Act, which makes non‑compliance an offence. The maximum penalty would be found in the Act, not the Regulations. Enforcement is by police: they can seize the firearm items under section 31 of the Act if a constrained person fails to surrender them. Regulation 6 provides that seized items are held in safe custody by the Commissioner and dealt with under the same procedure as surrendered items. There is no right to an extension of time or grace period in the Regulations; the 24‑hour window is strict. For co‑licensees, the Regulations do not specify what happens if they fail to claim a firearm within a particular time. The Commissioner may eventually dispose of the item under regulation 6(2)(a)(ii) when it can be lawfully disposed of. That gives the Commissioner a broad discretion as to when an item is “lawfully disposed of”. The Regulations also do not set consequences for a registrar who fails to notify the CEO. That failure would be a breach of a statutory duty but is not an offence under these Regulations; it may be an officer’s misconduct potentially subject to internal discipline or administrative law remedies. The Commissioner exercises significant power in deciding whether to return a firearm to a claimant under regulation 7(5). The Commissioner is not required to return an item if not satisfied the person is entitled to lawful possession under the Firearms Act 2024. This creates a risk of police over‑holding if the Commissioner is not satisfied, with no defined appeal or review mechanism in these Regulations. Claimants would need to seek review under the Firearms Act or general administrative law. The enforcement teeth of the PBO scheme therefore rely heavily on the Act’s penalty provisions, while the Regulations fill in the procedural steps that turn those provisions into enforceable obligations.

The most significant interaction is with the Firearms Act 2024. Regulation 7(5) explicitly subordinates the return of firearm items and authorisations to the exercise of the Commissioner’s functions under the Firearms Act 2024, Part 4 Division 8 or 9, Part 8, or any other provision of that Act. This means that even if a constrained person or co‑licensee has a right to claim under the Regulations, the Commissioner may refuse return based on firearms‑licensing grounds such as fitness, public safety, or the revocation of a licence. The Firearms Act also governs the lawful disposal of unclaimed firearms. The amendment history shows that the Regulations were amended in 2024 to replace references to the earlier Firearms Act with the Firearms Act 2024, reflecting a consolidation of firearms law. The interaction with the primary Act (Prohibited Behaviour Orders Act 2010) is fundamental: the Regulations operationalise sections 3(2), 30, and 31 of that Act. Without the Regulations, the Act would lack the list of prescribed offences and the detailed surrender procedures. The Regulation also interacts with the Criminal Code and other statutes listed in Schedule 1. Those statutes define the offences that trigger the anti‑social behaviour designation, but the Regulations do not alter their elements. A person may be convicted of, say, trespass under the Criminal Code section 70A, and that conviction automatically makes the behaviour anti‑social under the Act via the Regulations. The interaction with the Liquor Control Act and Road Traffic Act is similar. The Public Transport Authority Act and its regulations appear in Schedule 1, meaning that contravening a prohibition order (Public Transport Authority Act s 64B) or causing nuisance on public transport (Public Transport Authority Regulations r 13) is treated as anti‑social behaviour. This creates overlap: a person banned from public transport for misbehaviour may also become subject to a PBO, potentially with additional restrictions beyond transport. The interaction with the Bush Fires Act implies that lighting a fire likely to injure is taken to be anti‑social, which may be used in addition to or instead of bushfire‑specific penalties. The Regulations do not override or displace any other law; they supplement the Act by defining which conduct triggers its machinery. For firearms, the Firearms Act 2024 prevails in case of inconsistency over the Regulations, as regulation 7(5) makes clear. The Regulations also touch on criminal procedure: the disclosure of PBO information to the CEO under regulation 8 may intersect with privacy laws, though the Regulations do not address that. The interaction with the Criminal Investigation Act 2006 is via the inclusion of section 153 (failure to comply with an officer’s order) in Schedule 1, so a breach of police orders during an investigation may lead to anti‑social behaviour findings. Overall, the Regulations sit at the intersection of criminal law, firearms licensing, and administrative procedure, with the firearms regime taking precedence where conflicts arise.

The Prohibited Behaviour Orders Regulations 2011 were originally published in the Gazette on 23 February 2011 and commenced operation on the same day (with regulations 1 and 2 effective immediately, the rest effective upon the Act’s commencement, which also occurred on 23 February 2011 as noted in the compilation table). The first amendment came shortly after, on 1 July 2011, when the Prohibited Behaviour Orders Amendment Regulations 2011 inserted regulation 8, which imposes the duty on registrars to provide publication information to the CEO. That amendment appears to have been a late addition to formalise the information‑sharing role. The next amendment occurred on 21 May 2021 via the Attorney General Regulations Amendment (Road Traffic) Regulations 2021, Part 3, which came into operation on 1 July 2021. This added or amended road‑traffic offences in Schedule 1. Specifically, it added several new Road Traffic Act offences to the list, including driving with blood alcohol content of or above 0.05 (s 64AA), drug‑driving provisions (s 64B and s 67AD), and careless driving, reckless driving, and causing excessive noise or smoke. These additions reflect a policy decision to treat drug‑impaired and alcohol‑impaired driving as per se anti‑social behaviour, not merely regulatory traffic infringements. In 2022, the Attorney General Regulations Amendment (Firearms) Regulations 2022, Part 2, took effect on 19 November 2022. That amendment redefined terms in regulation 3 (including co‑licensee and Commissioner), revised regulation 5 to include the option of giving a firearm item to a co‑licensee as a permitted alternative, and amended regulation 6 relating to custody and deletion of old paragraph (3). These changes responded to the need to accommodate shared firearms licences. In 2024, two amendments occurred. The Prohibited Behaviour Orders Amendment Regulations 2024 took effect on 15 July 2024 and made changes to Schedule 1, likely adding new offences or updating existing references. The Prohibited Behaviour Orders Amendment Regulations (No. 2) 2024 took effect on 20 December 2024, also amending Schedule 1. Finally, the Attorney General Regulations Amendment (Firearms) Regulations 2024, Part 2, which was published on 21 December 2024, is noted as commencing on 31 March 2025. That amendment updates references from the former Firearms Act to the Firearms Act 2024 throughout regulations 6 and 7. The amendment history shows the Regulations have been adjusted repeatedly to expand the list of offences and to align with updated firearms legislation, reflecting a trend of broadening the PBO net and tightening procedural requirements for firearms.

The source text, being a set of regulations, does not itself cite or incorporate any litigation, and no cases are named or referenced within the Regulations. There is therefore no basis to assert any specific case law. However, the absence of case references does not mean the Regulations have never been judicially considered. Since this is a deep dive grounded strictly in the source, we cannot discuss any case not mentioned in the source. What we can observe is that the Regulations are procedural and definitional. The primary Act would be more likely to be the subject of litigation, and any challenge to the Regulations would likely involve arguments about whether the prescribed offences are ultra vires the Act or whether the firearm surrender provisions infringe property rights or procedural fairness. But given the source’s silence, we cannot confirm or deny any such challenges. Practitioners should be aware that the broad sweep of Schedule 1 may generate constitutional arguments about the scope of state legislative power, but the Regulations themselves are merely delegated legislation made under an Act passed by the Western Australian Parliament. Any challenge would need to target the Act’s definition of anti‑social behaviour or the regulation‑making power, not the Regulations per se. The listing of offences from multiple statutes also raises the possibility of double‑jeopardy or sentencing issues if a person is convicted of a Schedule 1 offence and then also made subject to a PBO, but that is a matter for the Act’s operation, not the Regulations. In short, the source provides no litigation history, so the prudent approach is to note that no case law is referenced in the instrument, and that any litigation would likely be under the Act rather than the Regulations, but such cases cannot be assumed.

Several features of the Regulations may catch practitioners and affected persons off guard. First, the breadth of Schedule 1 is far wider than many might assume. It includes offences such as disorderly behaviour (Criminal Code s 74A), indecent acts (s 203), common assault (s 313), stealing property valued under $1,000 (s 378), careless driving (Road Traffic Act s 62), causing excessive noise or smoke (s 62A), and remaining near licensed premises after being refused entry (Liquor Control Act s 115(6)). This means relatively low‑level infractions can trigger the anti‑social behaviour label, making the person eligible for a PBO. There is no de minimis threshold; the listed offence is conclusive. Second, the 24‑hour prescribed period for firearm surrender under regulation 5(3) is extremely tight and inflexible. If a constrained person is in custody, intoxicated, medically incapacitated, or lives in a remote area far from a police station, the deadline still applies unless the court orders a shorter period (which is even worse). There is no express provision for extension or excuse. Practitioners must advise clients to act immediately, perhaps even before the PBO is physically served if notice is given verbally. Third, the claim process for co‑licensees (regulation 7) is conditional on the Commissioner being satisfied that the claimant is entitled to lawful possession under the Firearms Act 2024. That imposes an investigative burden on the Commissioner and creates a risk that firearms will be held indefinitely if the Commissioner is not satisfied, with no statutory review mechanism in these Regulations. Fourth, the return process for constrained persons after a PBO ceases is also conditional; the Commissioner can refuse if the person’s firearms licence has expired or been cancelled in the interim. A person who waits months or years for the PBO to end may find they cannot reclaim their firearm. Fifth, the requirement that claims be made in a form approved by the Commissioner puts effective control of the claim process in police hands; the Regulations do not mandate a standard form or timeline for approval. Sixth, regulation 8’s requirement that registrars notify the CEO of the constrained person’s name, suburb and constraints could have privacy implications if the CEO publishes this information. The Regulations do not restrict publication or specify how the CEO may use the data. Seventh, the inclusion of offences under the Criminal Investigation Act (failure to comply with a police officer’s order) and the Public Transport Authority Act (contravention of a prohibition order) means that a person who breaches a non‑PBO prohibition order on public transport can be swept into the PBO scheme. Eighth, there is no exemption for juveniles; many Liquor Control Act offences in Schedule 1 specifically apply to juveniles (e.g., s 123(1) and (2)). Finally, the reliance on the Firearms Act 2024 for return decisions means that changes to that Act can alter the practical effect of the Regulations without amendment to the Regulations themselves.

Compliance strategies depend on the party’s role. For a person who has been convicted of or charged with any offence listed in Schedule 1, the first step is to understand that if the court is considering a PBO, the offence is automatically deemed to involve anti‑social behaviour. There is no room to argue that the conduct was not anti‑social; the only avenue is to contest the need for a PBO on other grounds under the Act, such as whether the order is appropriate or whether the person poses a risk. Legal advice should be sought early to present evidence of good character, employment, or lack of future risk, since the Regulations do not allow a merits challenge to the anti‑social behaviour label. For a person subject to a PBO that includes a firearms surrender condition under section 29 of the Act, compliance must be immediate. Within the prescribed period (24 hours or shorter court‑ordered time), the constrained person must gather any firearms authorisation (licence) and any firearm items in their possession. They must deliver the authorisation to a police officer at a police station. They must deliver firearm items either to a police officer at a police station or, if there is a co‑licensee, to that co‑licensee. Giving items to a co‑licensee is a permitted alternative, but the constrained person must be sure that the person is in fact a co‑licensee under the Firearms Act. A written transfer or receipt is prudent. If no co‑licensee exists, the item must go to a police station. The constrained person should obtain a receipt or confirmation of surrender to evidence compliance. Failure to comply within the prescribed period is likely an offence under the Act, so acting on the very day of service is critical. Co‑licensees should be informed promptly so they can make a claim under regulation 7(1) if they wish to regain possession. The co‑licensee must use a form approved by the Commissioner; contacting the local police station or the Commissioner’s office to obtain the form is the first step. They should also be prepared to demonstrate their entitlement to lawful possession under the Firearms Act 2024, such as by providing their own firearms licence and evidence of co‑ownership. If the constrained person wants to reclaim their firearm after the PBO ceases, they must also use a claim form, but they should first ensure their firearms licence is current and that no other disqualifying factors exist under the Firearms Act 2024. They should not assume the firearm will be returned automatically; proactive contact with the Commissioner is necessary. For court registrars, compliance with regulation 8 requires establishing a process to generate and send written notice to the CEO whenever a PBO is made, varied or cancelled. The notice must include the constrained person’s name, suburb, and constraints. This information should be sent promptly, as the Regulations do not specify a time limit but “after a court makes” implies without unreasonable delay. Registrars should also keep a record of notices sent for audit and to demonstrate compliance. For police and the Commissioner, handling surrendered items under regulation 6 requires safe custody and a system for tracking claims. The Commissioner should have procedures to assess claims within a reasonable time, though no timeframe is set. When returning a firearm, the Commissioner must be satisfied as to lawful possession; this means checking licences and any restrictions under the Firearms Act. If not satisfied, the Commissioner should document the reasons. For the CEO, receiving the notices under regulation 8 raises obligations under privacy legislation to handle personal information lawfully, but the Regulations themselves are silent. The CEO should have a policy for storing and using that information, and for publishing it if that is the intended purpose. Overall, compliance is procedural and time‑sensitive; the biggest risk is missing the 24‑hour surrender window or failing to provide adequate documentation for claims.