Energy Safety Regulations 2006

Energy industry participant: The regulations do not define this term; it is defined in the Energy Safety Act 2006. The Director may publish a notice specifying which persons or classes of persons are included within that definition for the purposes of the information‑gathering provisions. This means an entity cannot self‑assess with certainty until a notice is published, but once published, the obligation to provide information is triggered. The concept is central because it determines who must respond to a regulation 4 notice and who may be liable to pay a levy (and thus subject to the 20% per annum penalty for late payment under regulation 3).

Levy: A charge imposed under the Act on energy industry participants. The regulations do not set the amount or the basis of the levy; they only impose the interest penalty for late payment. The levy serves as the financial mechanism to fund the administration of the energy safety regime. The 20% per annum penalty is relatively high compared to typical commercial interest rates, reflecting a design that discourages delayed payment and compensates the state for the cost of collection.

Modified penalty: A fixed sum payable under an infringement notice as an alternative to prosecution. Schedule 1 lists these amounts for each offence: $800 (individual) and $4,000 (body corporate) for failing to comply with a requirement under section 28(6) or section 30(3)(e) of the Act; $200 (individual) and $1,000 (body corporate) for failing to give information under regulation 4(2) or to comply with a regulation 4(3) notice; and $400 (individual) and $2,000 (body corporate) for failing to comply with a regulation 4(5) notice. The amounts escalate with the seriousness of the non‑compliance and the entity type. Paying the modified penalty within 28 days extinguishes liability for that offence without a court conviction.

Infringement notice: A form that an authorised officer issues to an alleged offender. The prescribed form (Form 1 in Schedule 2) requires details of the alleged offence, the modified penalty, the officer, and instructions on payment or election for court prosecution. The notice also warns of enforcement consequences under the Fines, Penalties and Infringement Notices Enforcement Act 1994, including licence suspension, vehicle immobilisation, garnishment of earnings and bank accounts, and seizure of property. The withdrawal form (Form 2) allows the Director to cancel a notice and provide a refund if the penalty was already paid.

Authorised officer and approved officer: Persons or classes of persons appointed in writing by the Director for the purposes of Part 2 of the Criminal Procedure Act 2004. The regulations distinguish between authorised officers (who may issue infringement notices) and approved officers (whose role is not further defined but likely relates to processing notices). Each authorised officer must receive a certificate of appointment. This delegation allows the Director to scale enforcement capacity without requiring each officer to be separately named in the regulations.

The regulations directly affect three categories of persons. The first category comprises energy industry participants , broadly, persons engaged in the generation, transmission, distribution, supply or use of energy (gas, electricity, or potentially other forms) that are subject to the Act. These participants must respond to Gazette‑published notices under regulation 4(1) and (2) by providing basic contact and business description information. They are also the persons liable to pay levies, and thus exposed to the 20% per annum penalty on late payments. The regulations do not carve out small participants or exempt low‑revenue operators; all participants within the class specified in the Gazette must comply. The second category includes persons who are not yet identified as energy industry participants but whom the Director suspects may fall within that definition. The Director may serve a written notice under regulation 4(3) requiring them to provide information to determine their status. This power is broad: the Director can issue such a notice to any person without needing to demonstrate current participation in energy activities. The person must comply or face a $5,000 fine. This creates a burden on any entity that could conceivably be connected to the energy sector, including contractors, consultants, and suppliers. The third category comprises individuals and bodies corporate that commit the prescribed offences. The infringement notice regime applies to all alleged offenders whether or not they are energy industry participants. For example, a person who fails to comply with a section 28 requirement (likely a safety direction or information demand under the Act) can receive an $800 infringement notice. The modified penalties for body corporates are five times higher than for individuals ($4,000 vs $800 for Act offences; $1,000 vs $200 for minor regulation offences). This reflects the higher resources and responsibility expected of companies. In practice, the regulations impose the greatest compliance burden on energy industry participants, particularly those that may have infrequent contact with the regulator, because they must maintain awareness of Gazette notices and respond within 28 days. The regime also affects small businesses that may lack dedicated compliance staff; a failure to read the Gazette or newspaper within the timeframe can lead to an offence.

The regulations impose several specific duties, each triggered by a discrete event, and confer corresponding rights. The primary duty is under regulation 4(2): if the Director publishes a notice in the Gazette and a newspaper specifying a class of energy industry participants, a person in that class must give to the Director in writing their name, address, telephone number and a brief description of their business. This duty arises within the time specified in the notice, which cannot be shorter than 28 days after Gazette publication. The duty is not ongoing; it is a one‑off response to the notice. However, the Director could publish multiple notices over time, each requiring a fresh response. The second duty is under regulation 4(4): a person who receives a written notice under regulation 4(3) (to determine whether they are an energy industry participant) must provide the requested information within the period specified (at least 28 days). The notice may demand any information described by the Director; the regulation does not limit the scope of the request. The third duty is under regulation 4(6): an energy industry participant who receives a written notice under regulation 4(5) (to determine levy liability and amount) must provide the requested information within the specified period (again at least 28 days). This notice is more targeted because it applies only to known participants, but the information demand can be broad. The fourth duty is the obligation to pay any levy on time; regulation 3 imposes a penalty of 20% per annum on late payments but does not itself create the duty to pay , that arises under the Act. The rights conferred by the regulations are limited but significant. A person who receives an infringement notice has the right to avoid prosecution by paying the modified penalty within 28 days. Alternatively, they have the right to elect to have the matter dealt with by prosecution in court by ticking a box on the notice and returning it to the Director within 28 days. This election ensures the matter is determined by a court rather than by administrative penalty. A person also has the right to apply for an extension of time to pay the modified penalty by writing to the Director. The regulations do not prescribe criteria for granting extensions, leaving this to the Director’s discretion. Additionally, a person who has paid a modified penalty is entitled to a refund if the infringement notice is later withdrawn. The withdrawal form (Form 2) provides the mechanism for claiming a refund. There is no right to be heard before an infringement notice is issued, nor any right to appeal a notice; the only recourse is to elect court prosecution.

The regulations establish a two‑track enforcement system. The first track is the levy penalty: if a levy remains unpaid after its due date, the participant must pay an additional amount calculated at 20% per annum on the unpaid amount from time to time. This is a penalty, not interest, and there is no provision for waiver or variation. It accrues daily on the outstanding balance and is payable to the chief executive officer. The second track is the infringement notice regime under Part 2 of the Criminal Procedure Act 2004. Schedule 1 specifies modified penalties for six offences. For individuals: $200 for failure to provide basic information under regulation 4(2) or to comply with a regulation 4(3) notice; $400 for failure to comply with a regulation 4(5) notice; and $800 for failure to comply with a requirement under sections 28(6) or 30(3)(e) of the Act. For bodies corporate the penalties are five times higher: $1,000, $2,000 and $4,000 respectively. An authorised officer or approved officer (appointed by the Director) may issue an infringement notice using Form 1. If the modified penalty is paid within 28 days, the matter ends without a prosecution or conviction. If the recipient neither pays nor elects court within 28 days, enforcement actions under the Fines, Penalties and Infringement Notices Enforcement Act 1994 may follow. The infringement notice itself warns of serious consequences: driver’s licence suspension, vehicle licence suspension or cancellation, disqualification from holding licences, vehicle immobilisation, number plate removal, publication of details on a website, garnishment of earnings and bank accounts, and seizure and sale of property. These are not penalties imposed by the regulations; they are the standard enforcement mechanisms under the Fines Act. The regulations also provide that the Director may withdraw an infringement notice (using Form 2) and must refund any amount paid if the notice is withdrawn. The maximum fines for non‑compliance with information requests under regulation 4 are $5,000 (for regulation 4(2) and (4) notices) and $10,000 (for regulation 4(6) notices). These are set by the regulations themselves, not by the infringement notice regime. They apply when a person is prosecuted for the offence, not when they pay a modified penalty. The modified penalties are significantly lower than the court‑imposed maximums, creating an incentive to pay early. However, the gap is large: a $200 modified penalty for a $5,000 maximum offence means the infringement notice is a substantial discount. This design encourages voluntary compliance and reduces court costs, but it also risks trivialising the underlying duty.

The regulations sit under the Energy Safety Act 2006 and derive their authority from it. They do not create independent obligations; they implement and enforce obligations that exist in the Act. The levy penalty in regulation 3 is expressly made under section 18(1) of the Act. The information‑gathering powers in regulation 4 are likely authorised by the Act’s general regulation‑making power or specific provisions. The regulations also rely heavily on the Criminal Procedure Act 2004, particularly Part 2 which governs infringement notices. Regulation 5 declares that the offences in Schedule 1 are offences for which an infringement notice may be issued, and the modified penalties are those set out in Schedule 1. The Criminal Procedure Act then governs the issuance, content, service, payment, and enforcement of those notices. The regulations adopt the standard infringement notice framework rather than creating a bespoke scheme. The enforcement actions described in the infringement notice form are those under the Fines, Penalties and Infringement Notices Enforcement Act 1994. That Act provides for the enforcement of unpaid fines and infringement penalties through administrative measures such as licence suspension and property seizure. The regulations do not modify those actions; they merely incorporate them by reference. The appointment of authorised officers and approved officers in regulation 6 is for the purposes of the Criminal Procedure Act 2004 Part 2. This means those officers exercise powers under that Act, not under the Energy Safety Act directly. The regulations do not create any new powers of entry, search, seizure, or arrest. Those powers, if any, remain in the Energy Safety Act. The forms in Schedule 2 are prescribed for the purposes of the Criminal Procedure Act and the Energy Safety Act. They must be used for infringement notices and withdrawals; any deviation could invalidate the notice. The regulations do not interact with other energy safety regulations (such as those dealing with gas or electrical installations) because they are solely procedural. However, a person who is also subject to other energy safety laws (e.g., the Electricity (Licensing) Regulations 1991) may face overlapping information‑gathering demands from different regulators. The regulations do not provide any co‑ordination or exemption for such overlap. There is no provision for interaction with privacy laws, though the requirement to disclose business information is likely covered by the Energy Safety Act’s own information‑handling provisions (not in these regulations). The regulations also do not interact with the Independent Market Operator or other energy market bodies; they are purely about safety regulation administration.

The Energy Safety Regulations 2006 were originally gazetted on 27 June 2006 and commenced on 28 June 2006 (the same day as the Energy Safety Act 2006). The original regulations contained only regulations 1-4, covering citation, commencement, levy penalty, and information provision. There were no schedules and no infringement notice provisions. The first significant amendment occurred by the Energy Safety Amendment Regulations 2009, gazetted on 25 August 2009 and commencing on 26 August 2009 (with the citation and commencement provisions effective from 25 August). This amendment inserted regulation 5 (prescribed offences and modified penalties), regulation 6 (authorised officers and approved officers), regulation 7 (forms), Schedule 1 (prescribed offences and modified penalties), and Schedule 2 (forms). The amendment transformed the regulations from a purely administrative levy and information tool into a full infringement notice enforcement scheme. The second amendment was the Energy Safety Amendment Regulations 2013, gazetted on 20 August 2013 and commencing on 21 August 2013. This amendment made a minor change to Form 1 in Schedule 2, likely updating the wording or the list of enforcement actions (the exact change is not specified in the text). The third amendment came via the Commerce Regulations Amendment (Infringement Notices) Regulations 2020 Part 14, gazetted on 25 September 2020 and commencing on 29 September 2020. This again amended Form 1, apparently to update the enforcement warning paragraph (the text shows a slight duplication in the current version). The compilation shows that the regulations have been relatively stable since 2009, with only cosmetic updates to the infringement notice form. The amendment history is sparse, which suggests that the enforcement scheme has not required fundamental redesign. The original 2006 regulations were evidently considered insufficient to deter non‑compliance with information requests, leading to the introduction of the infringement notice regime in 2009. The absence of further amendments since 2020 may indicate that the current framework is working adequately from the regulator’s perspective.

The text of the regulations does not mention any specific cases, and no litigation history is provided in the compilation. Given that the regulations are largely administrative and procedural, and that the infringement notice regime is designed to divert matters away from courts, there is likely very little reported case law interpreting these regulations. The key offences (failure to provide information) are strict liability in nature; most disputes would be resolved by paying the modified penalty or by requesting an extension. A person who elects court prosecution could raise defences such as the information being impossible to provide or the notice being invalid, but such arguments would be based on the general criminal law rather than on a unique feature of the regulations. The levy penalty under regulation 3 is also unlikely to generate litigation; it is a straightforward interest‑rate calculation with no discretion. A participant could challenge the amount of the levy itself under the Act, but the penalty rate is fixed. The Director’s appointment of authorised officers could theoretically be challenged on administrative law grounds if the appointment was ultra vires, but the regulations empower the Director to appoint “in writing” and to issue certificates. As long as the Director complies, there is little scope for challenge. The forms in Schedule 2 are prescribed, and any failure to use the exact form could be raised as a procedural defence, but the regulations give the Director power to withdraw and re‑issue. In practice, the regulations operate below the radar of appellate courts. The most likely source of litigation would be a prosecution for a regulation 4 offence where the defendant argues that the notice was not properly published or served, or that the information demanded was not within the scope of the regulation. No reported decisions were found in the text, and given the regulations are specific to Western Australia, a search of local databases would be needed to identify any. Readers should assume that litigation is rare and that the regulations achieve compliance through low‑level administrative pressure rather than court action.

Several features of the regulations could trap unwary persons. The first is the breadth of the information‑gathering power under regulation 4(3). The Director may issue a written notice to “any person” to provide information “for the purpose of determining whether the person is an energy industry participant”. The notice can require any information described; there is no limit to the scope, relevance, or burden of the request. A person who receives such a notice cannot argue that they are clearly not an energy industry participant and ignore it; they must provide the information or face a $5,000 fine. The only safe response is to comply, even if compliance is costly or invasive. The second gotcha is the 28‑day timeframe. The Director is required to specify a date not earlier than 28 days after the notice is issued, but the recipient must act within that period. Missing the deadline, even by one day, creates a liability for an offence. There is no provision for extension of time to respond to an information notice; the only time extension possible is for paying a modified penalty under an infringement notice. The third gotcha is the Gazettal and newspaper publication requirement. The Director may publish a notice specifying classes of energy industry participants and a response date. The regulations require publication in the Gazette and twice in a daily newspaper. However, an entity that does not read the Gazette or the specified newspaper will not know of the obligation. Ignorance is no defence. The regulation does not require the Director to notify each participant individually. Therefore, any entity that might be an energy industry participant must actively monitor the Gazette and major newspapers, or risk an offence. The fourth gotcha is the 20% per annum levy penalty. This is high and applies automatically; there is no grace period or notice requirement. A participant who is late even by a day must pay the penalty. The levy itself may not be well understood, and a participant could inadvertently underpay or pay late. The penalty is calculated on the amount from time to time unpaid, meaning it compounds if the levy is paid in instalments. The fifth gotcha is that the infringement notice modified penalties are low, but the underlying maximum fines are high. A person who elects court prosecution may face a fine of up to $5,000 or $10,000 plus costs and a criminal record. The election is a high‑risk strategy unless the person has a strong defence. The infringement notice form itself warns of drastic enforcement actions for non‑payment, including driver’s licence suspension and property seizure, even for a $200 penalty. The sixth gotcha is that the regulations do not define “energy industry participant”. That definition is in the Act, but the regulations do not say which version applies or whether the Director’s Gazette notice is conclusive. A person could be uncertain whether they are caught. The Director’s notice itself may purport to clarify, but if the Director exceeds the statutory definition, a legal challenge would be needed. Finally, the forms in Schedule 2 must be strictly used. If the Director uses a notice that does not comply with the prescribed form, the notice may be invalid, but the regulations do not provide a cure mechanism. A recipient could potentially challenge the notice, but doing so would require legal action and might still result in a fresh valid notice being issued.

Compliance with the Energy Safety Regulations 2006 requires a proactive, document‑based approach. There are four distinct compliance obligations to manage.

1. Respond to public notices. If the Director publishes a notice in the Gazette and twice in a daily newspaper specifying a class of energy industry participants, any person within that class must provide to the Director in writing their name, address, telephone number and a brief description of their business. The deadline is the date specified in the notice, which must be at least 28 days after the Gazette publication. To comply: (a) designate a person to monitor the Gazette (available online from the State Law Publisher) and at least one major Western Australian newspaper (e.g., The West Australian) on a daily basis; (b) upon publication, review whether the notice includes your business activity; (c) if included, prepare a written response containing the required information and send it to the Director of Energy Safety before the deadline. Keep a copy of the response and proof of posting or delivery. This obligation is a one‑off per notice, but the Director may publish multiple notices over time, so monitoring must be continuous.

2. Respond to individual written notices. If the Director sends a written notice under regulation 4(3) (to determine if you are an energy industry participant) or under regulation 4(5) (to determine levy liability), you must provide the requested information within the period specified (at least 28 days). The notice will describe the information required. To comply: (a) read the notice carefully; (b) gather the exact information demanded - there is no right to limit the scope; (c) provide it in writing to the Director before the deadline. If you dispute the basis of the notice, you should still comply and later challenge the validity if necessary. Failure to comply is an offence with a fine of $5,000 (regulation 4(3) notice) or $10,000 (regulation 4(5) notice). There is no extension mechanism, so do not delay. If you cannot comply fully (e.g., records are not in your possession), you should provide what you can and explain the reasons in writing, but this may not discharge the obligation.

3. Pay levies on time. If you are an energy industry participant, you must pay any levy imposed under the Act by the due date. The regulations do not say when the levy is payable; that is in the Act or a determination. To avoid the 20% per annum penalty, pay the full amount before the due date. Keep records of payment. If you are unsure about the amount or due date, request clarification from the Director using the information‑gathering powers (you may also be required to provide information for that purpose). The penalty is statutory and cannot be waived; a single late day triggers it.

4. Respond to infringement notices. If you receive an infringement notice (Form 1) for an alleged offence under Schedule 1, you have three options. (a) Pay the modified penalty within 28 days - this ends the matter. (b) Apply in writing for an extension of time to pay - the Director may grant it, but this is not guaranteed. (c) Tick the box to elect court prosecution and return the notice to the Director within 28 days. If you do nothing, the matter will be referred for enforcement under the Fines, Penalties and Infringement Notices Enforcement Act 1994, with serious consequences. The modified penalties are low relative to the maximum court fines, so paying is usually the rational choice unless you have a defence. If you believe the notice is invalid, you should still respond within 28 days to preserve your options, and then seek legal advice.

General compliance tips: maintain a register of all communications from the Director; respond in writing; keep copies for at least five years; consider appointing a responsible person for energy safety compliance; monitor the Gazette regularly; and if unsure whether you are an energy industry participant, seek a legal opinion or request clarification from the Director (but note that the Director can compel information under regulation 4(3)). The regulations do not provide for voluntary compliance assistance, but the Director may publish guidance.