Petroleum and Geothermal Energy Resources (Hydraulic Fracturing) Regulations 2017

The regulations hang on a small set of tightly defined statutory concepts that determine geographic and temporal scope. Understanding these terms is the key to determining whether hydraulic fracturing may lawfully be conducted under a petroleum authority.

Hydraulic fracturing: The regulations give a short technical statutory definition: "the underground petroleum extraction process that involves the injection of fluids under high pressure into low permeability rock to induce fractures for the purpose of increasing the rock’s permeability" (reg 3). The definition anchors the prohibitions to a particular technique; it does not attempt to regulate other petroleum extraction processes.

Petroleum authority and petroleum operation: "Petroleum authority" means an authority under Part III Divisions 2, 2A or 3 of the Petroleum and Geothermal Energy Resources Act 1967 (reg 3). The prohibitions apply only when hydraulic fracturing is "in the course of carrying out a petroleum operation under a petroleum authority" (regs 4, 5). The textual linkage draws enforcement and scope to activities conducted under the statutory rights and obligations of those Part III authorities rather than to all possible subsurface work.

Existing petroleum authority area: Regulation 3A provides a three-part test for an area to be an "existing petroleum authority area". The area must have had a petroleum authority in force on 26 November 2018 (3A(1)(a)), there must at all times since that day have been a petroleum authority in force in respect of the area (3A(1)(b)), and there must currently be a petroleum authority in force in respect of the area (3A(1)(c)). The regulation expressly permits different petroleum authorities to have been in force at different times in the area (3A(2)). That concept is decisive because the moratorium definition excludes "existing petroleum authority area" from being a moratorium area (reg 3).

Prohibition list: Regulation 4 lists the areas where hydraulic fracturing under a petroleum authority is outright prohibited. The list includes planning regions defined elsewhere , metropolitan region, Peel region, South West region , national parks (defined in the Conservation and Land Management Act 1984 s 3), public drinking water source areas and land within 2 km of such areas, the Dampier Peninsula hydraulic fracturing ban area (Schedule 1), and "iconic natural heritage place" (reg 4). The regulation cross-references other statutes for some geographic definitions; the instrument does not reproduce those definitions.

Moratorium versus prohibition: The regulations operate with two overlapping mechanisms. Regulation 4 is a list of absolute prohibitions in named areas. Regulation 5 operates as a moratorium during the moratorium period (beginning 9 December 2017 and continuing until reg 5 is repealed) on hydraulic fracturing in "moratorium areas". A "moratorium area" is defined as any part of the State that is not an existing petroleum authority area and is not an area referred to in regulation 4 (reg 3). Thus, the moratorium covers all remaining State areas except those already prohibited by reg 4 and those that meet the "existing petroleum authority area" test in reg 3A.

Iconic natural heritage place and timing: The definition of "iconic natural heritage place" ties that concept to the West Kimberley National Heritage place and to the specific status of being an existing petroleum authority area "on the day on which the Petroleum and Geothermal Energy Resources (Hydraulic Fracturing) Amendment Regulations 2021 regulation 4 commences" (reg 3). That temporal qualification makes the 2021 amendment date a legal pivot for whether particular parcels within the West Kimberley listing are captured.

Schedules and maps: Schedule 1 provides the precise legal description of the Dampier Peninsula hydraulic fracturing ban area by coordinates and directional traverses, with a note that coordinates are GDA94. Both Schedule 1 Division 2 and Schedule 2 include maps "for information purposes only" (Schedules 1 and 2), so the coordinates and statutory text, not those maps, supply the operative boundary language.

Penalty: Both the prohibition in reg 4 and the moratorium in reg 5 carry the same prescribed sanction: a fine of $10,000 for each day on which the offence occurs (regs 4 and 5).

Commencement and amendment: The regulations were published and commenced in December 2017 with later amendments in 2019 and 2021. The compilation table in the instrument lists the 2019 amendment (Gazette 6 Sep 2019) and the 2021 amending instrument SL 2021/167 (24 Sep 2021), and the marginal notes in the regulations indicate where text was inserted or amended.

These concepts interact through temporal tests (moratorium period, 26 November 2018 test in reg 3A, date of 2021 amendment reg 4 commencement for iconic natural heritage place), geographic tests (lists of regions and proximity buffers), and the condition that the prohibitions and moratorium operate when hydraulic fracturing is undertaken "in the course of carrying out a petroleum operation under a petroleum authority" (regs 4, 5).

The operative subject of the prohibitions and moratorium is a person who carries out hydraulic fracturing "in the course of carrying out a petroleum operation under a petroleum authority" (regs 4 and 5). That textual framing identifies three intersecting categories of actor and activity:

• The person or operator who performs or directs hydraulic fracturing, including corporate entities or individuals engaged in petroleum operations. The regulations do not specify organisational forms; the statutory language "a person must not" is used in regs 4 and 5.
• The activity of hydraulic fracturing itself, defined in reg 3. The prohibition applies only to this specific technique when used for petroleum extraction as defined by the regulations.
• The legal context of the activity, namely that it must be "in the course of carrying out a petroleum operation under a petroleum authority" to be captured by the regime. "Petroleum authority" has a statutory meaning tied to Part III Divisions 2, 2A or 3 of the Petroleum and Geothermal Energy Resources Act 1967 (reg 3). Therefore, operators who hold or act under those authorities, or who perform petroleum operations pursuant to them, are the primary regulated parties.

Who pays: The person carrying out hydraulic fracturing in breach of reg 4 or reg 5 is exposed to the prescribed penalty, a fine of $10,000 for each day on which the offence occurs (regs 4 and 5). The daily structure creates continuing monetary exposure for ongoing operations that remain non‑compliant; the instrument does not provide for alternative sanctions within the text provided.

Geographic concentration of effect: The prohibitions explicitly list several geographically concentrated areas , metropolitan, Peel, South West regions (as those regions are defined in the Planning and Development Act 2005), national parks, the Dampier Peninsula ban area (Schedule 1), public drinking water source areas and land within 2 km of them, and "iconic natural heritage places" (reg 4). Operators with petroleum authorities covering these locations are directly and immediately affected because hydraulic fracturing under those authorities is forbidden in those locations.

Existing petroleum authority areas: The moratorium explicitly excludes "existing petroleum authority areas" from being moratorium areas (reg 3). That means operators in areas that meet the reg 3A test , petroleum authority in force on 26 November 2018, continuously so since, and currently in force (reg 3A(1)) , are not subject to the moratorium prohibition under reg 5 while the moratorium period continues. However, such operators may still be subject to the prohibition in reg 4 if their area falls within the list in reg 4 (for example, if their authority covers a national park or the Dampier Peninsula ban area).

Third parties and adjacent landholders: The regulations create protective buffers by prohibiting hydraulic fracturing within 2 km of a public drinking water source area (reg 4(g)). The through‑line is that persons operating under petroleum authorities must avoid these zones. The instrument refers to statutory constructs (public drinking water source area) constituted under other Acts (Country Areas Water Supply Act 1947 and Metropolitan Water Supply, Sewerage, and Drainage Act 1909) (reg 3). Entities that manage or rely on drinking water source areas therefore have their zones insulated by the prohibition.

Administrative actors: The instrument does not itself create new decision‑making or permitting powers within these regulations. It operates as a prohibitory overlay onto petroleum operations authorised under the Act. Consequently, the principal decision‑makers relevant to day-to-day compliance are private operators and their in‑house or contracted compliance teams; the government actors who issue, renew or vary petroleum authorities under the Petroleum and Geothermal Energy Resources Act 1967 are indirectly implicated because the status of "existing petroleum authority area" depends on the presence and continuity of such authorities (reg 3A).

Temporal effects on incumbents and new entrants: The reg 3A continuity test privileges areas in which petroleum authorities have been in force continuously since 26 November 2018. That creates a legal distinction between incumbents whose authority packages meet the reg 3A criteria and parties seeking new petroleum authorities after that date, because moratorium protections attach to "existing petroleum authority areas" and not to areas that lack that continuous chain (reg 3, 3A). The moratorium therefore affects potential new entrants differently from incumbents, subject to the overlay of reg 4 prohibitions which apply irrespective of reg 3A status.

In short, the regulations affect persons conducting hydraulic fracturing under petroleum authorities, with the impact concentrated by geography, by the continuity of petroleum authorities in force as of the dates specified in reg 3A, and by the moratorium period window defined in reg 3.

Duties

• Duty not to carry out hydraulic fracturing in specified areas: A person must not, in the course of carrying out a petroleum operation under a petroleum authority, carry out hydraulic fracturing in the list of areas in regulation 4 , this duty is absolute for those areas (reg 4). The list contains the metropolitan region, Peel region, South West region, Dampier Peninsula hydraulic fracturing ban area (Schedule 1), national parks (Conservation and Land Management Act 1984 s 3), public drinking water source areas, areas within 2 km of a public drinking water source area, and an "iconic natural heritage place" (reg 4).
• Duty not to carry out hydraulic fracturing in moratorium areas during the moratorium period: During the moratorium period (beginning 9 December 2017 and ending when reg 5 is repealed), a person must not carry out hydraulic fracturing in a moratorium area (reg 5(2)). A "moratorium area" is any area of the State that is not an existing petroleum authority area and not an area referred to in regulation 4 (reg 3).
• Duty of geographic measurement and verification: Implicit in the prohibitions is a duty on the operator to establish whether the proposed activity location falls within a prohibited area or moratorium area. The regulations supply the legal boundary for the Dampier Peninsula ban area in Schedule 1 using coordinates (Schedule 1 Division 1) and specify that those coordinates are GDA94 (Schedule 1 note). For other listed areas, operators must consult the relevant external statutes cited in definitions (for example planning region definitions in the Planning and Development Act 2005 and national park definition in the Conservation and Land Management Act 1984) because those definitions are cross‑referenced in reg 3 and reg 4.
• Financial exposure for continuing offences: The instrument prescribes a monetary fine for each day of operation in contravention; the operator therefore has a duty to stop or avoid prohibited activity to eliminate continuing daily liability (regs 4 and 5).

Rights / Legal statuses created or recognised

• Recognition of "existing petroleum authority area": The regulations recognise and give legal effect to the status of an "existing petroleum authority area" (reg 3A). That status functions to exclude such areas from the moratorium area definition (reg 3), so holders of petroleum authorities operating in areas that meet the reg 3A test are not subject to the reg 5 moratorium while that period remains in force.
• Temporal qualification for "iconic natural heritage place": The regulations create a right or status for areas within the West Kimberley National Heritage place to be treated as "iconic natural heritage places" for the purposes of reg 4, but only if they were an existing petroleum authority area on the day the 2021 amendment reg 4 commenced (reg 3). That is a tightly time‑gated recognition that fixes eligibility to a specific date.

Operational scope limitations

• The prohibitions apply when fracturing is carried out "in the course of carrying out a petroleum operation under a petroleum authority" (regs 4 and 5). The regulations do not purport here to regulate other activities or to set out a general ban on fracturing irrespective of the legal context; the text ties the duty to the statutory regime of petroleum authorities.

Other obligations are not detailed

• The regulations do not set out procedural obligations such as notification, licensing conditions, monitoring, remediation, record‑keeping or administrative review in the text provided. They operate as a geographic and temporal prohibition overlay plus a daily fine for breach. Any procedural duties connected with petroleum authorities remain those in the parent Act (Part III) or other subordinate instruments not reproduced in this text.

Practical consequence of duties

• Operators must determine geographic status of their activity, verify their petroleum authority status under reg 3A to assess moratorium coverage, and avoid carrying out hydraulic fracturing in prohibited or moratorium areas while exposed to a $10,000 per day fine for breach (regs 3, 3A, 4, 5). The Schedule coordinates and GDA94 datum are legally operative for the Dampier Peninsula ban area (Schedule 1), and the maps in Schedules 1 and 2 are expressly for information purposes only (Schedules 1 and 2), so the statutory text carries the operative duty for boundary determination.

Specified monetary penalty

• The regulations prescribe a specific monetary penalty for breaches of the prohibition and the moratorium. Regulation 4 concludes with "Penalty: a fine of $10 000 for each day on which the offence occurs." Regulation 5(2) likewise sets the "Penalty for this subregulation: a fine of $10 000 for each day on which the offence occurs." The instrument therefore creates direct, per‑day civil or criminal (depending on the enforcement mechanism under the Act) monetary exposure for ongoing non‑compliance.

Nature and quantum of liability

• The daily fine structure creates cumulative monetary exposure: each day hydraulic fracturing occurs in breach of the relevant prohibition or moratorium attracts the stated $10,000 quantum. The instrument does not reduce liability to a single fine per breach; the daily framing indicates repeated or continuing breaches will multiply the penalty.

Enforcement machinery not specified in the text

• The regulation text supplied does not specify which agency, inspectorate, or enforcement authority will investigate or prosecute breaches, nor does it set out the procedural steps for enforcement, such as notices, inspection powers, seizure, injunctive relief, administrative sanctions (licence suspension or cancellation), or the forum in which the fines are imposed. The regulations cross‑reference the Petroleum and Geothermal Energy Resources Act 1967 for the definition of "petroleum authority" (reg 3), but enforcement processes and aggravating or mitigating factors would be governed by the parent Act or other instruments not reproduced here.

Legal uncertainty and practical enforcement considerations visible in the instrument

• The instrument ties liability to activities undertaken "in the course of carrying out a petroleum operation under a petroleum authority" (regs 4 and 5). Enforcement actors would therefore need to establish both the nature of the activity (hydraulic fracturing as defined in reg 3) and that it was conducted in the course of a petroleum operation under a petroleum authority. The regulations do not, in themselves, set evidentiary or procedural standards for proving those elements.
• The instrument provides a detailed coordinate boundary for one specific ban area (Dampier Peninsula) in Schedule 1, and declares maps in Schedules 1 and 2 to be for information only. Enforcement action therefore will rely on the statutory text and coordinates for proving location breaches rather than on maps alone; the GDA94 datum is specified (Schedule 1 note).

No additional sanctions in the text

• The provided text does not include other criminal penalties, civil liability provisions, remediation obligations, or administrative sanctions such as licence suspension/revocation within these regulations. If such measures are to apply, they would need to be found in the parent Act, other regulations, or general enforcement statutes; they are not contained in the reproduced instrument.

Practical enforcement implications for operators

• The daily fine imposes immediate financial pressure to cease or avoid non‑compliant activity. Because the instrument does not specify administrative procedures, operators may face enforcement through whichever statutory enforcement mechanisms are available under the broader regulatory regime of the Petroleum and Geothermal Energy Resources Act 1967 or general enforcement pathways. Operators should therefore treat the daily fine as a low‑ambiguity monetary exposure tied to the continuing performance of hydraulic fracturing within prohibited or moratorium areas (regs 4 and 5).

The regulations expressly cross‑reference and rely upon definitions and constructs found in other Western Australian statutes and a Commonwealth list. The interaction points in the instrument are primarily definitional and locational, not procedural.

Cross references within the instrument

• Planning regions: The terms "metropolitan region", "Peel region" and "South West region" are used in reg 4 to identify prohibited areas. Those terms are defined by reference to the Planning and Development Act 2005 (reg 3). The regulations therefore require consult of the Planning and Development Act 2005 to determine the precise geographical extents of those regions as that Act defines them.
• National parks: Regulation 4(e) prohibits fracturing in "a national park as defined in the Conservation and Land Management Act 1984 section 3." Thus the precise statutory meaning and list of national parks (and associated boundaries) must be obtained from the Conservation and Land Management Act 1984.
• Public drinking water source areas: Regulation 3 defines "public drinking water source area" by cross reference to catchments and reserves constituted under the Country Areas Water Supply Act 1947 (s 9(1)) and to catchments, reserves and Underground Water Pollution Control Areas under the Metropolitan Water Supply, Sewerage, and Drainage Act 1909 (ss 13 and 57A). Those statutory instruments will govern the scope and legal effect of "public drinking water source areas" cited in reg 4(f) and the 2 km buffer in reg 4(g).
• West Kimberley National Heritage place and Commonwealth listing: The definition of "West Kimberley National Heritage place" in reg 3 refers to the place included in the National Heritage List as defined in the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) s 324C(1) by instrument published in the Commonwealth Gazette No. S132 on 31 August 2011. The iconic natural heritage place concept therefore imports a Commonwealth listing into the State prohibition via the statutory definition.

Interaction with the Petroleum and Geothermal Energy Resources Act 1967

• The term "petroleum authority" is defined by reference to Part III Divisions 2, 2A or 3 of the parent Act (reg 3). The present regulations overlay prohibitions on activities undertaken under those authorities but do not replace or reproduce the grant, variation, suspension, revocation, or conditions of petroleum authorities themselves. Operational compliance therefore requires operators to coordinate the geographic prohibitions of these regulations with the rights and obligations conferred by petroleum authorities under the parent Act.

Temporal interaction with amendment instruments

• The definition of "iconic natural heritage place" refers to the status of being "an existing petroleum authority area on the day on which the Petroleum and Geothermal Energy Resources (Hydraulic Fracturing) Amendment Regulations 2021 regulation 4 commences" (reg 3). This phrase links the State regulation to the timing of a particular amending instrument (SL 2021/167), making the application of reg 4 dependent on dates established in the amending instrument. Practitioners must therefore consult the compilation table and the amending regulations to identify the operative dates (compilation table and reg notes).

Maps and coordinate datum

• Schedule 1 provides coordinates for the Dampier Peninsula ban area and explicitly states that coordinate references are to Geocentric Datum of Australia 1994 (GDA94) (Schedule 1 note). The schedule also includes a map "for information purposes only" (Schedule 1 Division 2). Where boundaries of other regimes (for example national parks or water reserves) are to be determined, those regimes' mapping and coordinate systems will control; practitioners must reconcile the legal texts and spatial data from multiple statutes.

No procedural displacement of other regimes

• The regulations do not displace or replicate other regulatory regimes such as environmental approval processes, heritage processes, or water licensing. Instead, they add geographic prohibitions and a moratorium that operate alongside other statutory schemes. For example, where a public drinking water source area is constituted under a water Act, the water Act remains the source of the water protection regime, while these regulations add a prohibition on hydraulic fracturing within or near those areas (reg 3, reg 4(f) and (g)).

Implication for licensing and approvals

• Because "existing petroleum authority area" status depends on the existence and continuity of petroleum authorities as granted under the parent Act (reg 3A), the interaction between these regulations and decisions under the Petroleum and Geothermal Energy Resources Act 1967 is material: the issuance, timing, renewal or surrender of petroleum authorities will change whether an area is a moratorium area (reg 3). The regulations therefore make legal incentives for timing and continuity of petroleum authorities relevant to operators' compliance positions.

In short, the regulations import geographic and definitional content from multiple other instruments and operate as an overlay to the regime created by the Petroleum and Geothermal Energy Resources Act 1967. Determinations about where hydraulic fracturing may or may not be conducted require cross‑statute consultation and spatial reconciliation. The instrument does not create its own spatial registration regime; it relies on pre‑existing statutory boundaries and specific coordinate text for the Dampier Peninsula.

The instrument includes recorded amendment activity in its marginal notes and compilation table. The compilation table and the marginal annotations supplied in the reproduced text show two subsequent amending instruments after the original 2017 Regulations.

Original instrument and commencement

• The Petroleum and Geothermal Energy Resources (Hydraulic Fracturing) Regulations 2017 were published on 8 December 2017 and, by the commencement clause (reg 2), took effect in two stages: regs 1 and 2 (citation and commencement) on the Gazette publication day and the rest of the regulations on the following day (compilation table; reg 2).

Amendment Regulations 2019

• The Petroleum and Geothermal Energy Resources (Hydraulic Fracturing) Amendment Regulations 2019 are recorded in the compilation table as published 6 September 2019, with most operative provisions commencing on 7 September 2019 (compilation table). Marginal notes in the reproduced text indicate that regulation 3 was amended (Gazette 6 Sep 2019 p. 3198‑9), regulation 3A was inserted (Gazette 6 Sep 2019 p. 3199), regulation 4 was amended (Gazette 6 Sep 2019 p. 3199), and regulation 5 was amended (Gazette 6 Sep 2019 p. 3200). Schedule 1 headings and Division amendments were also inserted at that time (Schedules note: headings inserted Gazette 6 Sep 2019 p. 3200‑3201). The 2019 amendments therefore made substantive structural changes, most notably by adding regulation 3A, which defines "existing petroleum authority area" and conditions moratorium coverage on petroleum authority continuity since 26 November 2018.

Amendment Regulations 2021 (SL 2021/167)

• The compilation table lists the Petroleum and Geothermal Energy Resources (Hydraulic Fracturing) Amendment Regulations 2021 as SL 2021/167, published 24 September 2021, with operative provisions commencing on 25 September 2021 (compilation table). Marginal notes indicate that reg 3 was amended by SL 2021/167 r. 4, reg 4 amended by SL 2021/167 r. 5, and Schedule 2 was inserted by SL 2021/167 r. 6 (reg notes). The 2021 instrument therefore introduced the concept of "iconic natural heritage place" (reg 3) and added Schedule 2 (map of iconic natural heritage places for information only).

Textual consequences visible in the instrument

• The insertion of reg 3A in 2019 creates the continuity test for "existing petroleum authority area" based on the specific date 26 November 2018. The instrument's explanatory marginal notes reflect that addition and that reg 3 was amended to incorporate definitions and cross‑references consequent on the insertion.
• The 2021 amendment ties the definition of "iconic natural heritage place" to both the West Kimberley National Heritage place and a status test referencing the day on which the 2021 amendment reg 4 itself commenced. That produces a temporal slotting whereby the status of particular parcels depends on a date fixed by the amending instrument.

Schedule changes

• The 2019 amendments added Schedule 1 Division headings and the Division 2 map. The Schedule 1 Division 1 coordinate description of the Dampier Peninsula ban area is contained in the reproduced text and was inserted or at least annotated in 2019 according to marginal notes. The 2021 amendment inserted Schedule 2 and its map (for information only) related to iconic natural heritage places.

Overall pattern

• The amendment history recorded in the instrument shows an initial 2017 framework for prohibition and moratorium, followed by 2019 revisions that introduced a continuity exception for holders of existing petroleum authorities (reg 3A) and added the Dampier Peninsula ban area boundary text; and then a 2021 amendment that added an iconic natural heritage place concept tied to the West Kimberley National Heritage place and supplied an information map (Schedule 2). Those amendments altered the spatial and temporal mechanics of where and when hydraulic fracturing under petroleum authorities is prohibited or moratoriumed.

What is not present

• The compiled text does not include any further amending instruments after SL 2021/167 in the provided compilation table. The instrument does not reproduce any separate explanatory memoranda, regulatory impact statements or ministerial second reading speeches; references to such materials would need to be sought outside this reproduced text.

Use for practitioners

• When assessing a location or activity, practitioners must consult the original 2017 regulations and the 2019 and 2021 amending instruments listed in the compilation table because key definitional and boundary changes were made by those amendments (compilation table; regs 3, 3A, 4; Schedules 1 and 2). The dates specified in the amendments are operative for determining "existing petroleum authority area" status and the iconic natural heritage place qualification.

The reproduced instrument contains no reported litigation, case citations, or judicial interpretations. There are no court decisions, tribunal determinations or enforcement proceedings referenced in the text of the regulations, the schedules, or the compilation table provided. The instrument's marginal notes and compilation table record only the dates of publication and commencement for the original regulations and their amending instruments (2019 and 2021); they do not record any litigation.

What the absence of litigation in the instrument means for practitioners

• The regulations as reproduced must be read without reliance on judicial gloss or interpretative precedent contained in the instrument itself. Any interpretative issues that might arise in practice , for example, the meaning of "in the course of carrying out a petroleum operation under a petroleum authority," the geographic interface between a statutory coordinate description and external statutory boundaries, or the evidentiary showing required to establish an "existing petroleum authority area" under reg 3A , are not informed by cases in the text provided.
• Practitioners anticipating disputes, enforcement actions or the need for judicial clarification should therefore treat potential legal questions as unresolved by the regulations themselves and should plan to rely on the parent Act, administrative decision records, and, if necessary, external litigation or tribunal processes to develop precedent. The text provides no guidance on prosecutorial or administrative practice, means of appeal, or outcomes of past litigation, so those seeking such information must look beyond the instrument to court records or enforcement agency materials.

Potential points likely to generate litigation, based on the text

• The regulations create finely drawn temporal and spatial tests , for example, the reg 3A continuity test with a specific anchor date (26 November 2018), the reg 3 reference to the day on which the 2021 amendment reg 4 commences for "iconic natural heritage place," and the use of a 2 km buffer around public drinking water source areas. Absent interpretive guidance, disputes might arise over the application of those temporal tests to specific parcels, the methodology for measuring the 2 km buffer, and the legal effect of map annotations that are declared to be "for information purposes only." None of those potential disputes is reflected in the instrument itself.

Recommendation implicit from the text

• Because the instrument contains no litigation history and creates several date‑ and location‑sensitive legal tests, practitioners and affected parties should expect uncertainty on novel issues and be prepared to document administrative facts (dates of petroleum authorities, continuous coverage, coordinates, datum references) thoroughly when legal questions arise. Any authoritative judicial interpretation will have to come from outside the instrument, because the instrument includes no such history.

The regulations are short in text but contain several features that create practical pitfalls. The following "gotchas" are drawn directly from the statutory language and schedules as reproduced in the instrument.

1. Prohibition applies only "in the course of carrying out a petroleum operation under a petroleum authority" (regs 4 and 5)

• Risk: The wording ties the prohibitions to activities performed under petroleum authorities. This may leave open questions about activities not conducted under a petroleum authority (for example, operations without statutory authorisation). The regulations do not explicitly address activities outside the "petroleum operation under a petroleum authority" framing. Operators should not assume the regulations are the exclusive health and safety or environmental control instruments for such activities; conversely, they must not assume these regulations apply to every form of fracturing absent other statutory hooks. The statutory element "in the course of carrying out a petroleum operation under a petroleum authority" is decisive for compliance with these particular regulations (regs 4 and 5).

2. The moratorium exclusion depends on a continuity test anchored to a historic date (reg 3A)

• Risk: Reg 3A requires an area to have had a petroleum authority in force on 26 November 2018 and to have continuously had such an authority since that day to be an "existing petroleum authority area." If an operator cannot show continuous authority coverage since that date, the area will be a "moratorium area" and subject to reg 5 during the moratorium period. Continuity may be factually or administratively difficult to document if authorities have been varied, surrendered and reissued; reg 3A(2) clarifies that different petroleum authorities may have been in force at different times, but the continuity requirement remains. Keep documentary records of every instrument of authority in force in a given area across time.

3. Iconic natural heritage place status is time‑gated by the 2021 amendment commencement (reg 3)

• Risk: The definition of "iconic natural heritage place" requires the area to have been an existing petroleum authority area on the day the 2021 amendment reg 4 commenced. That tethers eligibility to a specific amending event and date. Parties must identify the commencement date of the relevant amending regulation (see compilation table and marginal notes for SL 2021/167) and verify petroleum authority status on that day to determine whether reg 4 applies through the iconic natural heritage place route.

4. Maps are "for information purposes only" while Schedule 1 contains coordinate text tied to a specific datum (Schedules 1 and 2)

• Risk: Visual maps in Schedules 1 and 2 are expressly non‑operative; the legal boundary for the Dampier Peninsula ban area is the coordinate description in Schedule 1 Division 1 and the note that coordinate references are to GDA94 (Schedule 1). Operators who rely on the visual map without reference to the coordinate text and datum risk misplacing boundaries. Use precise geodetic resources and ensure surveying aligns with GDA94 where coordinates are concerned.

5. 2 km buffer around public drinking water source area requires cross‑statute spatial work (reg 4(g) and reg 3)

• Risk: Determining whether a proposed activity is within 2 km of a "public drinking water source area" requires first identifying the catchment or reserve under the referenced water Acts (Country Areas Water Supply Act 1947; Metropolitan Water Supply, Sewerage, and Drainage Act 1909) and then measuring a buffer. The regulation does not provide a method for measurement, coordinate export, or centroid calculations. Operators must perform their own spatial analysis against the statutory boundaries from the relevant water legislation.

6. Moratorium period is open‑ended until regulation 5 is repealed (reg 3)

• Risk: The moratorium period begins on 9 December 2017 and ends on the day regulation 5 is repealed. That creates legal uncertainty about the moratorium's duration until a legislative repeal occurs. Operators should not assume a time horizon for the moratorium absent explicit repeal; reliance on political expectations is insufficient.

7. Daily fine structure generates cumulative liability (regs 4 and 5)

• Risk: The prescribed $10,000 "for each day on which the offence occurs" means that even short lapses can produce large liabilities if they are not promptly addressed. The instrument contains no mitigation mechanism or capped liability within these regulations. Stopping an ongoing contravention promptly is therefore materially important.

8. Definitions import other statutes (reg 3)

• Risk: Several key words require consultation of other statutes to determine their spatial or legal meaning (for example, metropolitan region via the Planning and Development Act 2005; national park via the Conservation and Land Management Act 1984; public drinking water source area via country and metropolitan water Acts). This introduces the potential for inconsistent boundary representations across different statutory datasets and requires careful cross‑checking.

9. Operational reliance on printed commencement and amendment dates (reg 2; compilation table)

• Risk: Key legal statuses depend on dates (e.g. the reg 3A anchor date, the 2021 amendment commencement for iconic natural heritage places). Practitioners must rely on the compilation table and marginal notes and should record and preserve evidence of the exact commencement dates of relevant regulations and amending regulations.

10. The regulations do not set out enforcement procedure or licence‑condition consequences within their text (regs 4 and 5)

• Risk: Because these regulations set prohibitions and penalties but not the mechanics of enforcement, practitioners cannot assume the presence of administrative remediation steps, staged enforcement, or procedural protections within the text of these regulations. Any prosecution or administrative action will be governed by other statutory frameworks or enforcement practice that is not specified here.

In sum, the primary practical pitfalls are temporal anchoring of legal tests, the need to reconcile multiple statutory mapping regimes, the reliance on coordinate datum for precise boundaries, the daily cumulative penalty exposure, and the fact that the prohibitions are framed narrowly around petroleum authority operations rather than being an encompassing prohibition on fracturing across all contexts.

Compliance under these regulations requires a combination of legal verification, spatial analysis, record keeping, operational planning and an understanding of temporal tests set by the instrument. The following step‑by‑step checklist and practical tasks are drawn from the regulatory text.

1. Confirm whether the intended activity is "hydraulic fracturing" as defined in reg 3

• Check whether the proposed subsurface extraction process fits the definition in reg 3: injection of fluids under high pressure into low permeability rock to induce fractures to increase rock permeability. If the activity falls outside that definition, these particular regulations may not apply; however, other laws may still regulate the activity.

2. Confirm the legal context of the activity: is it "in the course of carrying out a petroleum operation under a petroleum authority"?

• If the operation will be carried out under a petroleum authority as defined by Part III Divisions 2, 2A or 3 of the Petroleum and Geothermal Energy Resources Act 1967, these regulations apply. Document the legal basis for the activity and retain the instrument(s) of authority on file.

3. Determine whether the location falls within any reg 4 prohibited area

• Check if the site is in the metropolitan region, Peel region, or South West region by consulting the Planning and Development Act 2005 for the statutory region boundaries (reg 3; reg 4(a)-(c)).
• Verify whether the site is within a national park as defined by the Conservation and Land Management Act 1984 s 3 (reg 4(e)).
• Identify whether the site is within a public drinking water source area or within 2 km of one by consulting the Country Areas Water Supply Act 1947 and the Metropolitan Water Supply, Sewerage, and Drainage Act 1909, and then measure the 2 km buffer (reg 3; reg 4(f)-(g)).
• Check whether the site is inside the Dampier Peninsula hydraulic fracturing ban area using the coordinate text in Schedule 1 Division 1, ensuring use of GDA94 datum for geodetic accuracy (Schedule 1 note; reg 4(d)).
• Determine whether the site is an "iconic natural heritage place" by reference to the West Kimberley National Heritage place and the 2021 amendment date predicate (reg 3; reg 4(h)). Confirm whether the parcel was an existing petroleum authority area on the day the 2021 amendment reg 4 commenced.

If the site falls within any of the reg 4 areas, do not carry out hydraulic fracturing under a petroleum authority at that location , doing so attracts a $10,000 per day fine (reg 4).

4. If the site is not in a reg 4 area, determine if it is a "moratorium area" during the moratorium period (reg 3 and reg 5)

• A moratorium area is any area that is not an existing petroleum authority area and not an area referred to in reg 4 (reg 3). Therefore, check whether the area is an "existing petroleum authority area" under reg 3A.
• To be an existing petroleum authority area, there must have been a petroleum authority in force in respect of the area on 26 November 2018, there must have always been a petroleum authority in force in respect of the area since that day, and there must currently be a petroleum authority in force in respect of the area (reg 3A(1)(a)-(c)). Collect and retain documentary evidence proving continuous authority coverage since 26 November 2018, including copies of each authority instrument and dates of effect (reg 3A(2) allows different authorities over time).
• If the area fails the reg 3A test, it is a moratorium area. During the moratorium period (from 9 December 2017 until reg 5 is repealed) hydraulic fracturing in a moratorium area is prohibited and attracts a $10,000 per day fine (reg 5(2)). Do not proceed with hydraulic fracturing in a moratorium area for the duration of the moratorium.

5. Spatial and datum accuracy: use precise geodetic tools

• For any assessment that involves Schedule 1 coordinates (Dampier Peninsula ban area), use GDA94 datum as directed by the schedule note. Where other statutory boundaries are invoked (national parks, water reserves, planning regions), use the official boundary data from the agencies responsible under the relevant Acts and reconcile coordinate systems to GDA94 or perform accurate datum conversions.

6. Document and retain evidence

• Keep an auditable compliance file containing: the petroleum authority instrument(s) relevant to the area; dated evidence showing continuity of authority where reg 3A status is asserted; geodetic files and surveys showing the exact location of proposed operations; screenshots or official extracts of statutory boundary data from the planning, conservation and water Acts; and internal approvals and risk assessments linking the activity to the statutory position. Documentation will be decisive if enforcement relies on proving continuous authority or precise location.

7. Plan operational alternatives

• If a proposed site falls inside a prohibited or moratorium area for hydraulic fracturing, consider alternative extraction methods not captured by the definition of hydraulic fracturing (subject to other legal constraints), relocation of operational works to permitted zones, or a non‑fracking development plan. The regulations do not provide an approval pathway for hydraulic fracturing in prohibited zones; the only path to change is legislative amendment or repeal.

8. Monitor statutory developments and amending instruments

• Track whether regulation 5 (the moratorium) is repealed or whether further amending regulations change the definitions, lists or dates that affect existing petroleum authority areas or iconic natural heritage places. The compilation table lists the initial regulation and the 2019 and 2021 amending instruments; maintain a current statutory feed to detect further changes.

9. Prepare for enforcement risk and cost

• Recognise that a breach of regs 4 or 5 carries a $10,000 per day fine. Incorporate potential penalty exposure into risk assessments and contingency planning. If operations risk crossing into a prohibited area (for example, directional drilling approaching a buffer zone), stop operations or seek legal clarity before proceeding.

10. Where uncertainty persists, obtain authoritative advice or seek declaratory relief

• Because the instrument ties key legal questions to dates, continuity tests and cross‑statute boundaries, consider obtaining legal opinions on close questions (for example, the interpretation of reg 3A continuity or the measurement methodology for the 2 km buffer). Where operational plans are high value and legal uncertainty is material, an application for declaratory relief or judicial review may be appropriate , noting that the instrument contains no litigation history and that such routes are outside the instrument’s text.

In short, compliance is a matter of first deciding whether the activity is hydraulic fracturing under the definition, then verifying the legal status of the location against reg 4 lists and reg 3A continuity tests, maintaining precise geospatial and documentary records, and not proceeding with hydraulic fracturing where regs 4 or 5 prohibit it. The daily fine structure and the maps‑for‑information‑only drafting make careful documentation and geodetic precision essential.