Gas Standards (Infringement Notices) Regulations 2007

The foundational concept is the infringement notice. This is a document served on a person alleging they have committed a prescribed offence, setting out the modified penalty, and giving them the choice to pay or contest. The notice is issued under Part 2 of the Criminal Procedure Act 2004, which provides the overarching legal framework for infringement notices for a wide range of Western Australian laws. The regulations do not replicate that framework; they simply specify which gas safety offences fall within it. The modified penalty is the fixed dollar amount that, if paid, discharges the alleged offender’s liability for the offence without a court conviction. The amounts are set out in Schedule 1 and vary by offence and by whether the alleged offender is an individual or a body corporate. For example, distributing gas without ministerial approval of minimum heating value carries a modified penalty of $2,000 for an individual and $10,000 for a body corporate. This differential reflects the greater financial capacity of corporations, but also imposes a significant fixed cost that small gas businesses may find disproportionate relative to the severity of the alleged breach. Another important concept is the classification of offences by three categories in Schedule 1: offences directly under sections of the Gas Standards Act 1972; offences under the Gas Standards Act section 14 which involve a contravention of the Gasfitting and Consumer Gas Installations Regulations 1999; and similar breach of the Gas Supply and System Safety Regulations 2000. This triple structure is necessary because the parent Act creates the general offence of noncompliance with regulations, and the regulations themselves specify detailed conduct. The concept of authorised officers and approved officers is also central. The Director of Energy Safety may in writing appoint persons or classes of persons to be authorised officers (who can issue notices) or approved officers (likely a broader category). Each authorised officer receives a certificate of appointment. This delegation concentrates significant state power in administrative officers, with limited independent oversight of individual decisions to issue notices. The form of the infringement notice (Form 1) is prescribed and must include details of the alleged offence, the modified penalty, the date, and clear instructions on how to pay, how to apply for more time, and how to elect for court prosecution. The withdrawal notice (Form 2) is used when the Director decides to cancel a notice, and includes provision for refunding any money already paid. The concept of time is critical: the alleged offender has 28 days from the date of the notice either to pay or to tick the box and return the notice electing to have the matter dealt with by prosecution. Failure to act within that period exposes the person to prosecution and enforcement under the Fines, Penalties and Infringement Notices Enforcement Act, which can involve driver’s licence suspension, vehicle immobilisation, garnishment of earnings or bank accounts, and seizure and sale of property.

These regulations directly affect any person or corporation subject to the Gas Standards Act 1972 and its subordinate regulations who is alleged to have committed any of the prescribed offences. That includes gas distributors and suppliers who handle the quality and heating value of gas; persons who supply gas to consumer installations without proper inspection; gas fitters and anyone who engages in gasfitting work without a required certificate of competency, permit, or authorisation; sellers, hirers, advertisers, and installers of Type A gas appliances; users of Type B appliances; and anyone who fails to comply with orders of the Director concerning appliances or components. The list of offences in Schedule 1 is extensive, covering areas such as record keeping obligations for gas fitters and network operators, incident reporting, safety case compliance, management plans for commingling gases, and notification of major activities. The regulations also affect the officers of corporations. For some offences under the Gas Supply and System Safety Regulations (for example, failing to ensure gas of different qualities is not commingled without an approved plan), the modified penalty is listed only for individuals (not for bodies corporate). That suggests that the offence, as drafted, may apply only to natural persons acting as officers of a corporation, and that a body corporate cannot be offered an infringement notice for that particular provision. This is a subtle but important point: the infringement notice regime does not apply to all possible guilty parties for every offence. Practitioners must check the schedule carefully to see if a proposed infringement notice is available for the specific entity. The regulations also affect the Director of Energy Safety, who has the responsibility to appoint officers and to receive payments, applications for extensions, and elections for court. The Director can also withdraw notices. The authorised officers themselves are affected: they must hold a certificate of appointment and must issue notices in the prescribed form, and they are likely subject to internal policies and procedures. Ultimately, consumers may be indirectly affected if the infringement notice system reduces the likelihood of rigorous enforcement of gas safety standards, because it creates a cheaper exit for alleged offenders. However, the system may also increase enforcement coverage because officers can issue many notices without the transaction costs of full prosecution, potentially improving overall compliance incentives. The compliance burden falls most heavily on small gas fitting businesses and independent gas appliance retailers, who must maintain records, ensure proper marking of appliances, and report incidents. For a sole trader, even a $250 modified penalty for failing to keep records of employed gas fitters can be a significant financial hit relative to the profit margin on a job.

The regulations do not impose any standalone duties; instead they attach an administrative penalty framework to duties that already exist under the Gas Standards Act and its associated regulations. The key duties implicated by Schedule 1 include: for distributors, the duty to obtain ministerial approval of a minimum standard of heating value before distributing gas (s 8(1) of the Act) and to ensure the average heating value of supplied gas does not fall more than 1% below that standard (s 8(6)). For gas suppliers and gas fitters, the duty not to commence supply of gas to a consumer gas installation that has not been inspected or does not comply with prescribed requirements (s 13(1) and (2)). For anyone carrying out gasfitting work: the duty not to engage in such work unless in a prescribed capacity and holding the required certificate of competency, permit, or authorisation (s 13A(2)). For appliance sellers and installers: duties not to sell, hire, or install unapproved Type A appliances, and not to use unapproved Type B appliances (s 13D). There are also duties to comply with Director’s orders or conditions on appliance approvals (s 13E and 13F), to comply with prohibition orders (s 13H), and to comply with Inspection Policy Statements and Plans (s 13K). The most commonly relevant duties come from the Gasfitting Regulations: to supervise gasfitting work properly, to ensure installations are pressure tested and gas tight, to attach approved badges, to give notices of completion, to rectify defects, and to keep records. From the Gas Supply and System Safety Regulations, duties include: to supply gas within pressure limits and of proper quality, to have approved plans for commingling different gases, to implement those plans, to notify the Director of notifiable incidents, to have accepted safety cases for prescribed activities, and to keep records. The rights under these regulations are procedural. An alleged offender has the right to be issued with an infringement notice in the correct form, containing the correct alleged offence and modified penalty. They have the right to pay the modified penalty within 28 days and thereby avoid prosecution. They also have the right to elect instead to have the matter dealt with by prosecution. They have the right to apply in writing to the Director for an extension of time to pay the modified penalty. If an infringement notice is withdrawn after payment, they have a right to a refund of the amount paid. There is no express right to challenge the validity of the notice administratively before the 28 days expire, but a person could presumably seek judicial review in the Supreme Court if the notice were issued without power or was otherwise invalid. However, the practical cost and complexity of that option means most alleged offenders will simply pay the penalty, even if they believe they have a defence. This is the inherent asymmetry of infringement notice regimes: the right to a fair hearing exists in theory but the system is designed to discourage its exercise.

The modified penalties specified in Schedule 1 range from $250 to $2,000 for individuals, and from $1,250 to $10,000 for bodies corporate. The lowest penalties are for regulatory nuisances such as failing to keep records of employed gas fitters in the required manner (individual $250, body corporate $1,250) or failing to endorse a safe operation note on a notice of completion for a used appliance (individual $400). The highest penalties in the schedule are for core safety breaches: distributing gas without ministerial approval of heating value ($2,000 individual, $10,000 body corporate), supplying gas with heating value more than 1% below the minimum standard ($2,000/$10,000), failing to ensure gas supplied to consumer installations is within pressure limits ($2,000/$10,000), and failing to ensure natural gas or LPG meets quality standards ($2,000/$10,000). Also in the top band are failing to comply with a requirement of the Act regarding inspection policy statements ($2,000/$10,000) and failing to ensure an approved management plan is implemented and complied with ($2,000/$10,000). These penalties are fixed and cannot be negotiated or reduced by the issuing officer. The enforcement mechanism is not contained in these regulations themselves, but in the Criminal Procedure Act 2004 and the Fines, Penalties and Infringement Notices Enforcement Act 1994. If the modified penalty is not paid and the alleged offender does not elect for court within 28 days, the matter can be prosecuted in court. Alternatively, enforcement action can be taken under the Fines, Penalties and Infringement Notices Enforcement Act, which the Form 1 infringement notice warns can include: suspension of driver’s licence, suspension or cancellation of vehicle licence, disqualification from holding or obtaining a driver’s licence or vehicle licence, immobilisation of a vehicle or removal of number plates, publication of details on a website, garnishment of earnings or bank accounts, and seizure and sale of property. These are serious consequences for what may be a relatively minor regulatory failure. The regulations do not set a limitation period for issuing infringement notices, but the underlying offences would have their own limitation periods under the Criminal Procedure Act or the Gas Standards Act. A critical point is that paying the modified penalty is not a conviction, but it also does not constitute a finding of innocence. It is simply an administrative resolution. However, if a person pays a modified penalty, that cannot be used as a prior conviction for sentencing purposes in later proceedings, but it could potentially be cited as a relevant prior regulatory action. There is also no discount for early payment; the penalty is fixed. The system gives the Director significant discretion: they may choose to issue an infringement notice, to prosecute directly, or to take no action at all. This discretion is not formally reviewable except on public law grounds. From a free-market perspective, the fixed penalty system reduces the cost of enforcement but also removes the ability of a court to calibrate the penalty to the gravity of the contravention and the culpability of the offender. A gas fitter who inadvertently fails to affix an approved badge after a complex installation will pay the same $400 as one who deliberately flouts the requirement.

The regulations are a subordinate legislative instrument made under two enabling powers: the Gas Standards Act 1972 and the Criminal Procedure Act 2004. The primary interaction is with the Criminal Procedure Act Part 2, which is the general machinery for infringement notices in Western Australia. That Act defines terms such as ‘infringement notice’, ‘modified penalty’, ‘authorised officer’, and ‘approved officer’ and sets out the legal effect of payment or non-payment. The present regulations simply prescribe the offences and penalties that fall within that Part. They do not replicate the procedural rules, so anyone relying on these regulations must also read the Criminal Procedure Act. The regulations also interact directly with the Gas Standards Act 1972. The offences listed in the first table of Schedule 1 are core provisions of the Act itself, but many other provisions of the Act are not listed (such as the more serious safety offences that may carry criminal liability or higher maximum penalties). The regulations thus carve out a subset of Act offences suitable for administrative resolution. The regulations also interact heavily with two sets of subordinate instruments: the Gas Standards (Gasfitting and Consumer Gas Installations) Regulations 1999 and the Gas Standards (Gas Supply and System Safety) Regulations 2000. The infringement schedule lists specific regulations from each of those instruments, but only certain subregulations and only in certain circumstances (e.g., r 18(2) of the Gasfitting Regulations is included only where the contravention is of r 18(2)(a)(i)). This selectivity means that a practitioner cannot simply assume that any breach of the Gasfitting Regulations is eligible for an infringement notice. They must cross-check the version of Schedule 1 at the time of the alleged offence to determine whether the specific provision is listed. The regulations also rely on the Fines, Penalties and Infringement Notices Enforcement Act 1994 for enforcement action in cases of non-payment. That Act is not gas-specific and applies across many Western Australian laws, which is why the infringement notice form warns of driver’s licence consequences. This interaction can produce harsh results: a gas fitter who fails to pay a $400 modified penalty for a record-keeping lapse could find their driver’s licence suspended, even if the underlying safety conduct was impeccable. There is also an indirect interaction with the Work Health and Safety Act 2020 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (Commonwealth) in some circumstances, but those are not referenced in the regulations. The regulations are also subject to the Interpretation Act 1984 for rules of construction and the evidence laws for proof of notices. The forms in Schedule 2 are prescribed, so any variation may invalidate the notice. The forms reference the Director of Energy Safety as the recipient of payments and correspondence, but note that recent amendments (SL 2023/147) changed the designation of officers, so outdated forms may need updating.

The regulations were originally gazetted on 20 March 2007 as the Gas Standards (Infringement Notices) Regulations 2007 and commenced on the same day. They were amended within the same year by the Gas Standards (Infringement Notices) Amendment Regulations 2007, which took effect on 10 October 2007. The more substantial expansion came with the Gas Standards (Infringement Notices) Amendment Regulations 2010 (gazetted 4 May 2010, effective 5 May 2010). This amendment inserted the comprehensive Schedule 1 - Prescribed offences and modified penalties, which runs to three tables and numerous offences. The original 2007 regulations likely had a much shorter schedule, though the compilation table does not show the original Schedule 1 contents. The 2010 amendment was needed to align the infringement notice regime with the broader range of offences introduced or consolidated under the Gas Standards Act and its subsidiary regulations. In 2013, further amendments were made (gazetted 20 August 2013, effective 21 August 2013). These appear to have revised Form 1 (the infringement notice) and possibly other forms, based on the note at Form 1 referring to that gazette. The next round of changes came via the Commerce Regulations Amendment (Infringement Notices) Regulations 2020 (SL 2020/163), effective 29 September 2020. This was part of a broader housekeeping amendment across multiple Commerce portfolio regulations, likely to standardise wording or update enforcement references. It amended Form 1 and possibly other procedural aspects. The most recent amendments are from the Commerce Regulations Amendment (Gas Standards) Regulations 2023 (SL 2023/147), effective 21 September 2023. This amended regulation 3 (appointment of authorised officers and approved officers) and also amended Schedule 1 (likely updating penalty amounts or adding new offences, though the compilation table does not specify the exact changes). The constant amendment history suggests that the infringement notice framework is a living instrument that requires periodic updating to reflect changes in the underlying Act and regulations, as well as adjustments to penalty amounts. Because the modifications are not indexed to CPI or automatically updated, they require explicit legislative amendment, which may lag behind inflation and reduce the real value of penalties over time. For a gas fitter in 2024, a $400 penalty for failing to attach an approved badge is likely less burdensome in real terms than it was in 2007. This reduces the deterrent effect of the infringement notice system.

The source text for these regulations does not reference any litigation history, and it is not possible to identify specific cases from the instrument itself. Given that the regulations are procedural and administrative, they are unlikely to be the subject of frequent litigation on their own terms. Challenges would more likely arise in prosecutions for the underlying offences, where a defendant might argue that an infringement notice was invalidly issued or that the modified penalty was not properly prescribed. However, there is no widely reported case interpreting these specific regulations. The likelihood of litigation is reduced because the infringement notice regime is designed as a soft enforcement tool; most recipients either pay or elect for prosecution, in which case the prosecution proceeds under the Gas Standards Act, not under these regulations. The regulations themselves are only the gateway to that decision. If a case did arise, it might involve a dispute over whether the officer who issued the notice was properly appointed (regulation 3), or whether the notice complied with the prescribed form (regulation 4). There could also be an argument that the Director’s power to withdraw a notice (Form 2) is not expressly provided for in the regulations, but it is implied by the existence of the form. In practice, the threat of judicial review may keep the administrative system on its toes, but the low stakes (small dollar amounts) mean that few people would invest in legal action to challenge a notice. A gas company that receives a $10,000 modified penalty for a serious quality breach might consider it worth challenging if the notice is defective, but they would also weigh the cost of litigation against the potential of a higher penalty in court. The absence of reported cases should not be taken as a sign that the regulations are flawless; it may simply indicate that the system operates in a way that discourages judicial scrutiny. For legal researchers, any litigation would likely be captured under the gas safety legislation rather than these specific regulations.

A practitioner advising a client on these regulations must watch several traps. First, the modified penalty is not a fine. Paying it is an offer to compound the alleged offence; it does not amount to a conviction or an admission of liability. However, if a client later faces a civil claim for damages arising from the same conduct, the payment could be used as evidence of an admission of responsibility? Possibly, but the regulations do not address that. Second, the 28-day deadline is strict. The client must either pay or elect for court within 28 days from the date of the notice. Mailing the payment on day 29 can result in enforcement action being commenced, even if the delay is due to postal or banking delays. The regulations do not allow for an extension of the time to elect for court; they only allow the Director to grant an extension of time to pay the modified penalty. So if the client misses the deadline, they cannot later elect for court; they must pay and seek an extension or face prosecution. Third, the forms are prescribed. The Form 1 infringement notice must be in the exact layout and contain all the prescribed information. If an officer issues a notice that omits a required field (such as the ACN for a company), the notice may be invalid. A savvy client could argue that the notice was not a valid infringement notice, but that would require them to risk prosecution to test the point. Fourth, the schedule of offences is not exhaustive. Not all gas safety offences are listed. For serious offences (e.g., those with high court penalties), an infringement notice cannot be issued, and prosecution is the only option. Conversely, an officer might attempt to issue a notice for an offence not in the schedule - such a notice would be ultra vires and should be challenged. Fifth, the differential penalties for bodies corporate mean that a small company paying a $10,000 modified penalty for a quality breach faces a different economic burden than a large gas corporation. The fixed penalty does not consider the size of the business. Sixth, the offence of failing to comply with a requirement of an approved Inspection Policy Statement and Plan (s 13K(6)(b)) depends on the content of that plan, which is not set out in the regulations. The client may not be aware of every requirement of the plan. The infringement notice system neither requires the officer to prove the client had actual knowledge of the plan nor provides a defence of reasonable ignorance. Seventh, some offences are limited to specific circumstances. For example, r 18(2) of the Gasfitting Regulations is only included in the schedule when the contravention is of r 18(2)(a)(i). If a notice refers to r 18(2) generally, it could be too broad and potentially invalid. Eighth, the withdrawal of an infringement notice (Form 2) requires the alleged offender to sign and post the notice to claim a refund if one is not enclosed. If the client pays and then the notice is withdrawn, but they do not follow the procedure, they may miss out on a refund. Ninth, the enforcement consequences are severe and not limited to gas-related sanctions. Non-payment can lead to driver’s licence suspension, which could affect a gas fitter’s ability to drive to job sites. This is a potent but indirectly related penalty. Finally, the appointment of authorised officers is in writing and may involve classes of persons. A client may not know who is properly authorised, but they are entitled to ask to see the officer’s certificate of appointment (regulation 3(2)). Without seeing it, the client should verify the officer’s authority before paying.

Compliance with these regulations is, in a narrow sense, simply a matter of responding appropriately if an infringement notice is received. The steps are straightforward: within 28 days of the date of the notice, either pay the modified penalty using one of the methods specified on the form (by post to the Director of Energy Safety with a cheque or money order, or in person at an Energy Safety office) or tick the box indicating you want the matter dealt with by prosecution and post the notice to the Director. If you cannot pay within 28 days, write to the Director of Energy Safety requesting an extension of time to pay. If you have paid and later the Director withdraws the notice, claim a refund by signing and returning Form 2 promptly. However, the broader compliance imperative is to avoid committing the offences listed in Schedule 1 in the first place. That means a duty holder must understand and implement the underlying duties under the Gas Standards Act, the Gasfitting Regulations, and the Gas Supply and System Safety Regulations. For gas fitters and installers: ensure you hold the required certificate of competency, permit, or authorisation; only carry out work you are authorised to supervise; ensure installations are pressure tested and gas tight; attach approved badges and labels after completion; give notice of completion within the required time; rectify defects promptly and notify; keep records of employed gas fitters in the required manner for the required time; do not supply gas to a Type A appliance without a notice of completion; do not use a Type B appliance without a certificate of compliance; do not mark an appliance to falsely imply it is approved; and report incidents and defects that render installations unsafe. For appliance sellers: only sell or hire Type A appliances that are approved and marked, stamped, or labelled in the approved manner, and do not advertise or offer for sale appliances that do not conform to any conditions on their approval. For gas distributors and network operators: ensure the gas you supply meets approved minimum heating values and is within pressure limits and quality standards; have approved plans for commingling gases and implement them; notify the Director of major activities; ensure prescribed activities are carried out in accordance with specified standards or codes and with an accepted safety case; lodge reports of safety cases; establish and maintain record keeping systems; and notify the Director of notifiable incidents within time. For employers of gas fitters: keep records of employed gas fitters as required; make those records available for inspection; and keep them for the prescribed period. The compliance burden is significant, especially for small businesses that must maintain multiple records and ensure all appliances in stock are approved and correctly labelled. The regulations do not provide any safe harbour or compliance assistance; the onus is entirely on the duty holder. The most effective compliance strategy is to have a documented system for checking each duty, perhaps using a checklist for each job. When a notice is received, the recipient should not ignore it. Even if the client believes the notice is unjustified, the rational decision may be to pay the modified penalty if it is lower than the cost of defending the matter, including time and legal fees. This is a pragmatic recognition of the system’s design. However, if the penalty is high (e.g., $10,000 for a body corporate) and the client has a strong factual defence, an election for court may be worthwhile, especially if the client has a clean compliance history that could lead to a lower fine or a dismissal. Legal advice should be sought in such cases. Keeping copies of all records, including inspection certificates and completion notices, is essential to any defence.