Bush Fires (Infringements) Regulations 1978

Infringement notice. This is a notice served under section 59A(2) of the Bush Fires Act 1954. It is not a conviction. It alleges a specific offence described in the First Schedule and demands payment of a fixed penalty within 21 days. Payment discharges liability; non-payment may lead to court proceedings for the original offence. The concept is borrowed from traffic infringement systems and is designed to process high volumes of relatively low level regulatory breaches without full prosecution.

Prescribed penalty. The dollar amounts appearing in the final column of the First Schedule are the fixed penalties for each offence. They are not fines imposed by a court; they are amounts that, if paid, avoid prosecution. The penalties are set administratively by regulation and have been increased over time. For example, the original 1978 penalties are not shown, but amendments in 1998, 2018, and 2022 have raised amounts. The highest penalties ($1,000) apply to total fire ban breaches and certain burning offences; the lowest ($100) apply to failure to produce a permit, improper cigarette disposal, and failure to give name and address.

Prescribed officer. A specific person authorised to withdraw an infringement notice (section 59A(5)). The categories are set out in regulation 4. The definition is important because only a prescribed officer can decide to discontinue the infringement notice, either by taking no further action or by deciding to institute court proceedings instead. That power is not given to the officer who issued the notice, only to a senior office holder in the issuing agency.

Withdrawal. A prescribed officer may withdraw an infringement notice using Form 2. The officer must indicate whether no further action will be taken or whether court proceedings are proposed. Withdrawal does not necessarily mean the matter is dropped; it may mean the enforcing body considers the offence serious enough to prosecute in court rather than accept the fixed penalty.

Offences under the Act vs under the Regulations. The First Schedule lists offences under two headings: those found in the Bush Fires Act 1954 itself (items 1 to 25) and those in the Bush Fires Regulations 1954 (items 26 to 51). The regulation references are given in the second column (e.g., section 17(12), regulation 15(2)). This distinction matters because the underlying duties differ in origin, but the infringement notice procedure is the same.

Bush fire control officer. This term appears in many offence descriptions (e.g., items 32, 33, 35, 47B). The regulations do not define the term; it comes from the Act. The officer may give directions that, if not followed, trigger an infringement offence.

The regulations directly affect any person who engages in conduct that is listed as an infringement offence. That includes landowners and occupiers, farmers, graziers, contractors, machinery operators, persons lighting fires for land clearing or cooking, recreational users of parks, beekeepers using smokers, and anyone who discards a cigarette or match in a bush fire prone area. The offences cover a wide range of activities: setting fire to bush during prohibited burning times (item 1, $250), burning garden refuse when fire danger is extreme or high (item 6A, $250), operating tractors, self-propelled harvesters, power saws, bag loaders, welding apparatus, or machinery without required fire extinguishers or during restricted times (items 13, 14, 38, 39, 41, 42, 43, 45, 47). Even use of fireworks (item 49A) and explosives (items 48, 49) is covered. The infringement system also affects beekeepers (items 47A, 47B) who use bee smoker devices.

The regulations also affect public bodies and officials. Local government officers, FES Commissioner staff, police, and CALM Act officers are authorised to issue notices. The prescribed officer category (reg 4) adds a layer of control: a senior person in each agency can withdraw or convert a notice to prosecution. This creates internal accountability but also discretion. Local governments, in particular, bear the administrative burden of issuing notices, processing payments, and handling withdrawals. The Department of Fire and Emergency Services (DFES) oversees the system.

Compliance costs fall on both the recipient and the issuer. For a recipient, paying the fixed penalty avoids the cost and time of a court defence, but it also means forgoing any chance to argue that the offence was not committed or that mitigating circumstances should reduce the penalty. For businesses, especially farmers and contractors, a $250 or $500 penalty might be less costly than taking a day off work to attend court, but multiple penalties could accumulate. The schedule does not provide for demerit points or criminal conviction, but unpaid penalties may result in a court hearing and potentially a higher fine and costs.

The system also affects insurers. A payment of an infringement notice is an admission of liability for the offence, which could be used in civil proceedings for fire damage. A person who pays a notice for “offences relating to burning of bush” (section 18) or “failure of occupier to extinguish a bush fire” (section 28(1)) may find that payment is used as evidence of negligence in a subsequent negligence claim. The regulations do not address this interaction, but the risk exists.

The key duties are those underlying each infringement offence. They include: not to set fire to bush during prohibited burning times without an exemption (s 17(12)); not to burn bush except in accordance with the Act (s 18); not to light a fire in the open air during a total fire ban unless exempted (s 22B); to observe conditions of any exemption (s 22C); to notify and get approval from local government before burning on land adjoining exempt land (s 22(3)(a)); to prepare a fire break before such burning (s 22(3)(b)); to produce a burning permit on demand (s 24B(3)(a)); to identify the person who issued a permit (s 24B(3)(b)); not to burn garden refuse when fire danger is extreme or high (s 24D); not to burn garden refuse at a rubbish tip contrary to a notice (s 24E); not to burn garden refuse during limited burning times (s 24F); to comply with prohibitions or restrictions on garden refuse burning (s 24G); not to light a fire in the open air outside of exempted circumstances (s 25); to comply with conditions of an exemption from s 25 (s 25A(4)); not to light a fire contrary to a local government notice under s 25A(5) (s 25A(7)). There are duties related to operation of tractors, harvesters, engines during prohibited or restricted times (s 27(1)); to fit a fire extinguisher if required by notice (s 27(5)); not to give a false alarm of fire (s 27B); not to vandalise fire fighting equipment (s 27C); not to carry incendiary material in a motor vehicle (s 27D(2)); not to deposit incendiary material (s 27D(3)); for occupiers to extinguish a bush fire on their land (s 28(1)); to dispose of cigarettes, cigars, matches safely (s 30); to comply with a notice to plough firebreaks or take other action (s 33(3)); not to light a fire contrary to s 46 or to fail to carry out directions of a bush fire control officer (s 46(2)); not to light a firebreak without direction while a bush fire is burning (s 47); to state name and abode when required by an authorised officer (s 56(3)); not to obstruct an officer (s 57). Additionally, various duties under the Bush Fires Regulations 1954: not to apply to another officer for a permit after refusal (reg 15(2)); to comply with conditions in reg 15B for burning bush; to deliver notice of intention to burn clover (reg 19A(1)); to burn clover only in the area and time specified (reg 19A(2)); to have three men attending clover burning (reg 19A(3)); to comply with permit conditions (reg 21); to comply with directions of a bush fire control officer (reg 21B); to notify escape of a fire lit under permit (reg 22); to comply with requisitions for burning under s 24A (reg 22B); to comply with rules for charcoal burning (reg 23); to operate bulldozer or road grader safely (reg 37A); to have fire extinguisher on harvesting machine (reg 38); to operate engines, vehicles, plant or machinery in accordance with notices (reg 38A); to provide plough or equipment when required (reg 38A(4)); not to operate power saw, bag loader during harvest ban (reg 38B(3)(a)); to fit spark arrester (reg 38B(3)(b)); not to operate harvesting machine when prohibited (reg 38C); to operate chaff cutting plant safely (reg 39); to operate motor vehicles safely (reg 39A); to operate aeroplanes safely (reg 39B); to operate welding/cutting apparatus safely (reg 39C); to operate bee smoker devices with care (reg 39CA); to comply with directions on use of explosives (reg 39D); to comply with directions on use of fireworks (reg 39E); to notify local government of a bush fire (reg 43(1)); to give notice of intention to exercise powers under s 34 (reg 44(a)).

The rights of a person served with an infringement notice are: (1) to pay the prescribed penalty within 21 days, thereby discharging liability for the offence; (2) to not pay and instead have the matter dealt with by a court; (3) to argue that the notice was improperly issued, if it goes to court. There is no right to a formal hearing on the infringement notice itself; it is simply an offer to settle. If paid, no conviction is recorded, but the payment may be used as evidence in other proceedings. There is also no right to request a formal withdrawal; that is at the discretion of the prescribed officer.

The penalties in the First Schedule are fixed sums. The most common is $250. Some lower: $100 for failure to produce permit, identification, cigarette disposal, and failure to state name. Some higher: $500 for operating machinery contrary to notice or direction (reg 38A(3)), operating power saw during harvest ban (reg 38B(3)(a)), operating harvesting machine when prohibited (reg 38C(3)). The highest are $1,000 for total fire ban breach (s 22B(2)), failure to observe exemption conditions (s 22C(5)), burning garden refuse at tip contrary to notice (s 24E), and operating harvesting machine or header during prohibited times without extinguisher (reg 38). The penalty amounts have been updated over time; for instance, the $1,000 figure for total fire ban appeared in amendments from 1998 and 2018.

Enforcement proceeds as follows. An authorised officer (local government officer, police, CALM officer, departmental officer) issues Form 1 to the alleged offender. The recipient has 21 days from the date of the notice to pay. If payment is made within 21 days, the matter is closed. If not paid, the issuing agency may decide to take the offender to court for the original offence. The court can then impose a penalty up to the maximum for that offence under the Act (which may be higher than the fixed infringement amount). The regulations do not specify late payment fees or enforcement costs; that would be determined by the court. Additionally, a prescribed officer may withdraw the notice at any time, even after non-payment, by issuing Form 2. Withdrawal may be because new evidence emerges, or because the officer decides the matter is serious enough to prosecute rather than accept the fixed sum. If withdrawal indicates “no further action”, the offender is not liable; if “court proceedings proposed”, the offender may be summoned.

The system gives enforcers significant discretionary power. A police officer can issue a $1,000 notice for a total fire ban breach without giving the recipient any opportunity to argue on the spot. There is no right to a discount for early payment; the penalty is fixed. The only way to contest the allegation is to refuse payment and face court. That imposes a cost: time, potential legal fees, risk of higher penalty and costs if convicted. This structure creates an incentive to pay even if the allegation is doubtful, because the fixed sum may be lower than the cost of defending. That is a feature of fixed penalty systems generally, but it can lead to unjust outcomes if notices are issued incorrectly. The regulations do not require the officer to have observed the offence; hearsay is possible in theory, though the Act may require reasonable belief. The forms do not require the officer to give evidence of the basis.

These regulations are a subordinate instrument under the Bush Fires Act 1954. They rely entirely on section 59A of that Act for their validity. Section 59A empowers the Governor to prescribe offences that may be dealt with by infringement notice and to set penalties. The regulations cannot create new offences; they only designate which existing offences can be handled via infringement notice and assign a fixed penalty. The underlying offences and their maximum penalties remain in the Act and the Bush Fires Regulations 1954. For instance, the offence under section 17(12) (setting fire to bush during prohibited burning times) carries a maximum penalty in the Act that is likely higher than the $250 infringement penalty. If a person refuses to pay and is prosecuted, the court can impose the higher maximum, not just $250. This creates a risk: refusing the infringement notice may lead to a heavier penalty.

The regulations also interact with the Conservation and Land Management Act 1984. Regulation 4(d) refers to an “authorised CALM Act officer” and the chief executive of that department as a prescribed officer for withdrawals. That means officers working on CALM land (now Department of Biodiversity, Conservation and Attractions) can issue infringement notices on those lands, and the department head is the prescribed officer.

The Criminal Code (WA) may apply to the underlying offences; the infringement notice does not create a new criminal process. Section 59A of the Act is an alternative to prosecution, not a separate offence.

Fines and penalties collected under the regulations are likely paid into the Consolidate Fund or retained by the issuing agency depending on arrangements, but the regulations do not specify. The Act may provide for distribution. Payment of an infringement notice does not affect civil liability. A person could still be sued for negligence or trespass arising from the same conduct. The payment is not a conviction but could be used as evidence of the act.

Local government by-laws may also impose fire restrictions; the infringement regulations apply only to the state Act and regulations. If a by-law creates an offence, it may not be covered by the First Schedule unless specifically prescribed. Practitioners must check the local by-law regime separately.

The regulations were originally gazetted on 10 March 1978. The first amendment was on 11 August 1978, adjusting regulation 4. Major changes occurred in 1983, 1990, 1998, 1999, 2000, 2003, 2018, and 2022. The 1998 amendments were significant: the whole regulations were reissued (Gazette 22 December 1998 p.6860) and the First Schedule was updated. The 2018 amendment (Gazette 18 September 2018 p.3511-12) updated regulation 4 to replace references to the Fire and Emergency Services Authority with the FES Commissioner, reflecting machinery of government changes. The 2022 amendment (SL 2022/153 r. 4) was part of the Bush Fires Regulations Amendment Regulations 2022, Part 2, which affected the First Schedule (likely increased some penalties or added new offences, though the exact changes are not detailed in the provided text; but the compilation table states r. 4 amended the First Schedule). Importantly, the regulations have been amended repeatedly to adjust penalty amounts, reflecting inflation and policy changes. The First Schedule originally had lower penalties; for example, item 2A (total fire ban) was inserted in 1990 at $1,000? Actually the text shows $1,000 for 2A, which was likely from the 1990 amendment (Gazette 23 Nov 1990). Item 6B (burning garden refuse at tip) was inserted in 1998 at $1,000. The pattern shows that penalties have generally increased, not decreased.

The compilation table shows the regulations are a compilation; practitioners must ensure they are using the current version. The defined terms list at the end is not part of the law, but the terms “infringement notice” and “the Act” are defined in regulation 2.

The source material does not cite any cases. No court decisions are mentioned. That is typical for a procedural regulation; litigation would arise under the parent Act, not the regulations themselves. The infringement notice system is designed to reduce litigation by offering an administrative settlement. However, cases could arise where a recipient challenges the validity of a notice, for example, claiming the officer was not authorised, the form was defective, or the offence was incorrectly specified. Such challenges would be heard in the Magistrates Court or the Supreme Court on judicial review. Without specific case references, we can only note that the regulations have been in force since 1978 and have survived without successful constitutional challenge; otherwise, the compilation would likely note amendments. The 1998 reissue suggests previous versions were found adequate. Practitioners should search for any unreported decisions in WA on infringement notices under the Bush Fires Act; the regulations themselves provide no special litigation history.

Several potential traps exist for the unwary.

First, the penalty amounts may appear modest but can escalate if not paid. The 21 day period is strict. There is no automatic reminder. If the recipient pays one day late, the payment may be rejected and prosecution may proceed. The regulations do not provide for an extension of time. The forms do not include a payment receipt; the payer must keep proof.

Second, the definition of “prescribed officer” for withdrawal is narrow. An officer who issued the notice cannot withdraw it unless they are also the chief executive, mayor, president, FES Commissioner, or commissioned police officer. If a recipient believes the notice was wrongly issued and contacts the issuing officer, that officer cannot withdraw it; only the senior officer can. This may cause frustration.

Third, the First Schedule includes offences under the Bush Fires Regulations 1954 that are not immediately obvious. For instance, item 26 (applying to another bush fire control officer for a permit after refusal) might catch someone who simply asks a second officer about a different area. Item 28 (failure to deliver prescribed notice of intention to burn clover) applies only to clover burning, but the penalty is $250. Item 47A (bee smoker devices) was added in 2018, so beekeepers may be unaware.

Fourth, the $1,000 penalty for total fire ban (item 2A) is high and might be enforced aggressively during high risk periods. The offence is “lighting a fire in the open air” - this includes campfires, barbecues, and even some gas appliances if they are open. The regulations do not define “fire in the open air”, which is defined in the Act. Recipients should know the Act’s scope.

Fifth, the infringement notice is not a conviction, but it may still appear on police records or be used by insurers. If a person pays a notice for “giving false alarm of fire” (item 15), that may affect insurance premiums or employment in emergency services.

Sixth, the form of withdrawal (Form 2) requires the prescribed officer to strike out either “no further action” or “court proceedings proposed”. If both are struck, the withdrawal is invalid. If the officer errs, the withdrawal may be ineffective.

Seventh, there is no provision for a partial payment or instalment. The full penalty must be paid within 21 days. If the recipient cannot afford it, they may have to go to court and risk a higher fine.

Eighth, the regulations do not specify that the infringement notice must be served personally. It may be sent by post. If it goes to an old address, the recipient may not learn of it until after the 21 days. The Act (s 59A) may have service provisions; check the Act.

Ninth, the penalty amounts are not indexed. They have increased only by amendment. Over time, the real value of $250 declines, but the state may choose to update them irregularly.

Tenth, local governments may have their own infringement regimes under local laws for similar conduct, and double jeopardy may not apply if both the state infringement notice and a local law infringement are issued for the same conduct, though the Act may provide otherwise. Practitioners should check the Act.

For individuals or businesses subject to the regulations, compliance involves two distinct sets of behaviour: avoiding the underlying offences, and responding correctly if an infringement notice is issued.

To avoid an offence, the person should familiarise themselves with the Fire Danger Rating system and total fire ban declarations as published by DFES. During prohibited burning times, do not light any fire in the open air unless covered by an exemption (e.g., gas barbecue in a designated area, or a permit). Keep a copy of any permit or exemption on hand to produce on demand. Ensure that any burning of garden refuse is done only during permitted times, when the fire danger is not extreme or high, and not at a rubbish tip that has a notice prohibiting it. For machinery operation (tractors, harvesters, power saws, welding equipment), keep a serviceable fire extinguisher of the type required (usually a dry chemical extinguisher). During harvest bans, do not operate harvesting machinery. For beekeepers, use a bee smoker device only with proper care and have a water supply. For anyone using explosives or fireworks, obtain any required permit and follow directions of a bush fire control officer. Always ensure cigarettes, cigars, and matches are fully extinguished and disposed of in a safe manner. If a bush fire starts on your land, you must take immediate steps to extinguish it or control it until help arrives. If you receive a notice from a local government to clear firebreaks, comply within the specified time. If you are asked by an authorised officer for your name and address, provide them truthfully; the penalty for refusal is only $100, but refusal may escalate to obstruction which is $250.

If you are served with an infringement notice, read it immediately. Check that the offence description matches what you did; if it does not, consider not paying and instead preparing to defend in court. If it is correct, calculate whether paying within 21 days is cheaper than taking time off to go to court. If you pay, do so within the 21 days by the method specified on the notice (cheque, money order, online payment if available). Keep the receipt. If you cannot pay within 21 days, do not pay late; instead, contact the issuing agency and explain the situation. They may be able to withdraw the notice and issue a fresh one with a new deadline, or they may proceed to court. If you believe the notice was issued in error, do not pay; instead, request a withdrawal from the prescribed officer (e.g., the CEO of the local government). That request should be in writing and explain the error. The prescribed officer has discretion to withdraw; if they refuse, you will have to defend in court.

If you are a business or landowner, train relevant staff on these regulations. Keep copies of the current First Schedule and the parent Act. Incorporate compliance into standard operating procedures: fire extinguishers on all relevant machinery, daily checks on fire danger ratings before any outdoor activity, and a system for tracking permits and their conditions. For agricultural activities like clover burning, ensure you have the correct staff numbers (three men) and notify the local government. The cost of compliance includes purchasing and maintaining fire extinguishers (around $100-$300 each), time spent on training and monitoring, and potential loss of productivity if you cannot operate machinery during harvest bans. The alternative cost of non-compliance is a fixed penalty of $250-$1,000, plus potential prosecution and higher penalties, not to mention liability for fire damage.

For local government officers issuing notices, ensure you are authorised under the Act and have completed required training. Use Form 1 correctly, filling all fields. Include the correct offence reference and penalty amount from the First Schedule. Do not issue a notice if you are not certain of the offence; the recipient may challenge and the officer’s credibility may suffer. For withdrawals, ensure you are a prescribed officer under regulation 4; if you are not, do not attempt withdrawal. Use Form 2 and strike the appropriate option. Keep a record of all notices issued, payments received, and withdrawals. The regulations do not specify record keeping, but good practice and audit requirements likely demand it.