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Home Resources & Technical Articles Criminal Offence Topics (A to Z) Offensive Behaviour Offences Offensive Behaviour Offences and Penalties in Western Australia (WA)

Offensive Behaviour Offences and Penalties in Western Australia (WA)

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Offensive behaviour offences can encompass a wide range of activities. The State specifically designed a section in the legislation to deter people from creating a public scene or intentionally disrupting the public.

Also referred to as disorderly behaviour, this offence carries harsh punishments, typically a fine. This article will look at the aspects of the crime of offensive behaviour, including its elements, penalties, and possible defences.

If an individual is convicted in a Western Australian (WA) court for an Offensive Behaviour offence, the offence will show up as a disclosable court outcome (DCO) on a police check .

What is Offensive Behaviour?

Offensive behaviour covers a wide range of actions that are disruptive, offensive, or could endanger the safety of the public. It also includes any conduct that prevents other people from enjoying public spaces.

The Law on Offensive Behaviour in Western Australia (WA)

Section 74A of the Criminal Code Act Compilation Act 1913 (WA) makes it a crime to behave in a disorderly manner in a public place or police station. According to this section, it is also an offence to act in a disorderly way in a lock-up and the hearing or sight of any person in a public place. Doing any of these actions attract a fine of $6,000.

Suppose a person has control or management of a place where the public can buy or consume food or refreshments. If they allow another individual to act in a disorderly manner in that place, they are guilty of offensive behaviour. The penalty for this violation of law is a fine of $4,000.

Definition of Terms the Law Uses

Defining the terms used in the law is crucial as they create a boundary around the conduct that falls within the definition of offensive behaviour.

Behaving in a disorderly manner: This phrase involves acting insultingly, offensively, or threateningly. It also includes using offensive, insulting, or threatening language.

Public Place: This is any location that the public or any part of the public has or is allowed to have access to, whether on payment or otherwise. Privately owned areas that the public can access with the express or implied consent of the owner, occupier, or manager also fall within the definition of "public place." The term also encompasses schools, universities, and other places of education. Note that any part of a school or university which is not accessible to students and members of the public is not a "public place."

Police station or lock-up: Includes any police lock-up facility or police station in Western Australia.

Elements of the Offence: What the Prosecution Must Prove

As is the case in most criminal trials, the is on the prosecution, typically the WA Police Prosecutions Team, to prove the elements of the offence. In proving that an accused person committed the crime of disorderly behaviour, the prosecution must show that the defendant:

The defendant was the person who had acted in a disorderly manner in a police station, public place, or lock-up.

The accused's behaviour falls under the definition of behaving in a disorderly manner in Section 74A of the Criminal Code. Their actions must have been offensive, disruptive, or threatening. Otherwise, they must have used language that meets those qualities.

The accused carried out disorderly conduct in a police station, public place, or lock-up.

In proving these elements, the prosecution may rely on witness statements, the complainant, police officers, investigating officers, and civilian witnesses. Depending on the circumstances, they may also use DNA or forensic data and CCTV footage when available.

Jurisdiction – What Court Will Hear Offensive Behaviour Charges?

Offensive behaviour crimes are simple offences. As such, the Magistrate Court has jurisdiction to hear such matters.

What Are The Possible Defences For Offensive Behaviour?

Anyone facing offensive behaviour charges can plead any of the following defences (depending on the facts of the case) to avoid a conviction of guilt.

#1. Self Defence or Defence of Another

If a physical altercation was part of the offensive behaviour, the accused could argue that they acted in self-defence. This is because Western Australian law allows people to take reasonable action to protect themselves and others around them from harm.

This defence will only apply if there was an existing threat at the time of the altercation and the accused's action was the only reasonable way to avert the threat.

#2. Reasonable and honest mistake of fact

Here, the accused asserts that they genuinely believed that your conduct was not disorderly. If it was reasonable for the defendant to believe that, the Court might not find them guilty of a crime.

#3. Necessity

By pleading this defence, the accused person asserts that the circumstances at hand required them to break the law to avert even more dire consequences.

#4. Duress

It is a defence to the charge of offensive behaviour if the accused can show that they acted due to coercion or a threat against them.

#5. Mental Illness

Certain mental disorders, when left untreated, can cause people to say or do things they typically wouldn't do. These illnesses may render the sufferers incapable of realizing that their actions are wrong. Examples of such disorders include schizophrenia, psychomotor epilepsy, hyperglycemia, and cerebral arteriosclerosis.

Anyone suffering from any of these mental illnesses has a defence against an offensive behaviour charge.

It is essential to note that intoxication from drugs or alcohol is not a defence for such charges. However, the Court may consider that a person with a drug or alcohol problem does not have complete control over their actions.


The law on offensive behaviours can be complex and challenging to understand. Also, each offensive behaviour case is unique, and a defence that works in one trial may not work in another.

A qualified lawyer can examine the facts of the case and develop a defence strategy that best fits the particular circumstances. By hiring an experienced criminal defence lawyer, a person facing offensive behaviour charges can guarantee the best possible outcome.

Failure to hire one may result in a wrongful conviction, which would, in turn, lead to a series of unfortunate circumstances.

Will an Offensive Behaviour Offence show up on a Nationally Coordinated Criminal History Check certificate?

If an individual is found guilty of an offensive behaviour offence Court, the offence will show up as a disclosable court outcome (DCO) on the results of their police check.

Individuals can obtain a police check via the Australian National Character Check - ANCC® website.

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