Water Efficiency Labelling and Standards Act 2005

Manufacturers and importers: Those who place water-use or water-saving products into the Australian market must register them before supply and ensure they carry correct WELS labels and meet minimum efficiency and performance requirements. This applies to all supply in the course of trading or commercial activities.

Retailers and distributors: Any person or entity that supplies WELS products in the course of trade is bound by the registration and labelling requirements. This includes online retailers whose websites advertise products for sale.

Property developers and plumbers: Section 7A(1)(c) includes supply as part of the supply of another thing, such as a fitting or fixture. Fitting an unregistered tap or shower into a property as part of a construction or renovation contract is a supply and can constitute a contravention.

Consumers (indirectly): The Act is designed to benefit consumers by ensuring that products carry reliable water efficiency information. Consumers are not directly regulated but benefit from the labelling requirements.

State and Territory agencies: May be designated as corresponding State-Territory law agencies and may have functions conferred on them or the Regulator or WELS inspectors under those laws, within an agreed framework.

Registration before supply (section 33): A person must not supply a WELS product if the applicable WELS standard requires the product to be registered for the purposes of the supply, unless the product is registered at the time of supply. This is a strict liability offence (60 penalty units) and a civil penalty provision (60 penalty units per contravention).

WELS labelling before supply (section 34): A person must not supply a WELS product if the applicable WELS standard requires it to be WELS-labelled and the product is not WELS-labelled. Strict liability offence and civil penalty provision, each 60 penalty units.

Minimum water efficiency (section 35): Where the WELS standard requires registered products to comply with minimum water efficiency requirements, the product must comply before it can be supplied. Strict liability offence and civil penalty provision, each 60 penalty units.

Minimum general performance (section 36): Similarly for minimum general performance requirements. Strict liability offence and civil penalty provision, each 60 penalty units.

Consistent use of WELS standards and information (sections 37-38): A person supplying WELS products must not use the WELS standard or information derived from it inconsistently with the standard (section 37). A person must not use information for or in relation to the supply of a WELS product that is inconsistent with the information contained in the applicable WELS standard (section 38). Using information on labels, packaging, documents, or advertising are all covered (section 39). Both are strict liability offences and civil penalty provisions.

Not labelling non-WELS products as WELS products (section 37A): A person must not supply a product that purports to be WELS-labelled if the product is not a WELS product. Strict liability offence and civil penalty provision.

Honest information in registration applications (section 32A): A person must not provide false or misleading information or documents with a registration application. Civil penalty provision (60 penalty units); no strict liability.

Compliance with compliance audit notices (section 43A): If the Regulator suspects a contravention and considers it in the public interest, the Regulator may require a person to undertake and report on a compliance audit. Failure to comply is a strict liability offence and civil penalty provision (30 penalty units).

Compliance with remedial action notices (section 43B): Similarly, the Regulator may require remedial action, with the same enforcement pathway and 30-penalty-unit consequence.

Occupier to assist WELS inspector with warrant (section 54): If a WELS inspector enters premises under warrant, the occupier must provide all reasonable facilities and assistance. Failure is a 30-penalty-unit offence.

WELS inspector must produce identity card: A WELS inspector cannot exercise entry or inspection powers unless they produce their identity card when required (section 46(5)).

Minister (section 18): May by legislative instrument determine product categories as WELS products and set the WELS standard, subject to majority State/Territory agreement. This is the primary standard-setting power.

Regulator: Registration scheme (section 26): The Regulator administers the registration scheme formulated by the Minister. The scheme may provide for approval, refusal, suspension, and cancellation of registration, and for the register itself.

Regulator: Enforceable undertakings (section 42): May accept written undertakings from persons in connection with WELS standard compliance or registration condition compliance. May consent to or refuse withdrawal or variation of undertakings. May apply to the Federal Court for enforcement.

Regulator: Publicising convictions (section 41): May publicise any WELS Act offence for which a person has been convicted, in any manner the Regulator thinks appropriate.

Regulator: Compliance audits (section 43A): May require a person to undertake a compliance audit, if on reasonable grounds the Regulator suspects a contravention and considers it in the public interest.

Regulator: Remedial action (section 43B): May require a person to take action to remedy or prevent conduct constituting or likely to constitute an offence or civil penalty contravention.

Regulator: Requiring WELS information (sections 61-62): May require a person believed to hold relevant information to provide it or appear before a WELS inspector. Notices must be given at least 14 days before the required date of compliance. Imprisonment of 6 months for non-compliance. Privilege against self-incrimination is preserved (section 63).

WELS inspectors: Entry and inspection (sections 48-51): Inspectors may freely observe and purchase products in public business areas without consent. With consent, may search premises and inspect records. With a warrant, may also require answers to questions, require document production, and seize or secure evidential material.

Federal Court: Civil penalties (section 44A): May order a person to pay a civil penalty up to 5 times the prescribed amount for body corporates. The court considers the nature and extent of the contravention, loss and damage caused, circumstances, and prior similar conduct.

Federal Court: Injunctions (section 44): May grant injunctions on the Regulator's application, without requiring an undertaking as to damages. Injunctions may restrain future conduct whether or not the Court is satisfied an immediate threat exists.

Civil penalties (supply offences, ss 33-38): 60 penalty units per contravention for individuals; up to 300 penalty units (5 times 60) for body corporates. Each day of a continuing contravention is a separate contravention (section 44N). Given that online advertising of unregistered products may contravene section 33 on every day the listing is active, the cumulative exposure for a sustained period is substantial.

Criminal (strict liability) penalties: The same maximum of 60 penalty units per contravention applies as a criminal penalty for the same supply offences. Imprisonment is not available for supply offences under the Act itself but the Criminal Code offences for associated conduct (such as false or misleading statements) carry separate penalties.

WELS inspector obstruction/refusal: Refusal to answer questions put under warrant (section 51(3)), failure to comply with a requirement to provide information or appear (sections 61-62): imprisonment for 6 months.

Civil penalty limitation period (section 44A(2)): Proceedings for a civil penalty order must be commenced within 4 years of the alleged contravention.

Infringement notices (section 40): Regulations may provide for infringement notice penalties of up to one-fifth of the maximum for an alleged offence or contravention.

No double jeopardy (section 16): A person already penalised under a corresponding State/Territory law is not liable again under the Commonwealth Act for the same act or omission.

Double jeopardy between civil and criminal pathways (sections 44H-44L): Civil proceedings after criminal conviction for the same conduct are barred (section 44H). Criminal proceedings may follow civil proceedings (section 44K). Evidence given in civil penalty proceedings is not admissible in subsequent criminal proceedings against the person if the conditions in section 44L are met.

Accessory liability (section 44M): Persons who aid, abet, counsel, procure, or are knowingly concerned in a contravention of a civil penalty provision are taken to have contravened the provision themselves. The person's knowledge of the essential facts must be established for ancillary liability.

Product registration: Must occur before supply. The registration scheme sets out application requirements, fees, and registration periods. The Regulator administers registration under the scheme formulated by the Minister.

Review of Regulator decisions (Parts 11): Reviewable decisions include refusal to register, cancellation/suspension of registration, and refusal to waive or refund fees. The affected person must apply for internal review within 30 days of the decision first coming to their notice (section 71(2)). Administrative Review Tribunal review is available for decisions made personally by the Regulator and internal review decisions (section 72).

Civil penalty proceedings (section 44A(2)): Must be commenced within 4 years of the contravention.

Compliance audit notices (section 43A): The Regulator specifies the period within which the audit must be undertaken and the report given. Notice must include qualification and independence requirements for external auditors.

WELS information notice (section 61): Period ends at least 14 days after notice is given. Notice must set out the effect of the Criminal Code provisions on false and misleading statements.

Warrant duration (section 58(4)(c)): Ordinary warrants expire no more than one week after issue.

Evidential material retention (section 55(4)): The Regulator must return or release material seized under warrant when it is no longer needed or within 90 days (whichever is sooner), unless the Regulator obtains a court order for further retention.

Annual report (section 75): The Regulator must report on WELS scheme operations after each financial year, for tabling in Parliament within 15 sitting days.

Independent scheme review (section 76): The Commonwealth Minister must commission independent reviews within 5 years of the first review and every 5 years thereafter. Reports are tabled in Parliament and provided to States and Territories.

Corresponding State-Territory laws: Each State and Territory may enact a corresponding law that uses the Minister's determinations under section 18. The Act explicitly preserves State and Territory laws from being excluded or limited (section 11). Persons already penalised under State/Territory law for the same act are not liable again under this Act (section 16).

Water Efficiency Labelling and Standards (Registration Fees) Act 2013 (Cth): Imposes registration fees as taxes. The registration scheme may provide for waiver or refund of these fees.

Criminal Code Act 1995 (Cth): Chapter 2 applies to all offences (section 6). The Criminal Code provisions on strict liability, mistake of fact, false and misleading statements (sections 136.1, 137.1, 137.2), and accessory liability inform the interpretation of all offence provisions.

Crimes Act 1914 (Cth): Section 6 (accessories) and related provisions apply, as do section 4K (continuing offences) in respect of any criminal penalties for continuing failures.

Public Governance, Performance and Accountability Act 2013 (Cth): The WELS Account is a special account under this Act (section 64).

Administrative Review Tribunal Act 2024 (Cth): Governs the ART review of reviewable decisions under section 72.

Competition and Consumer Act 2010 (Cth): Operates concurrently. Misleading or deceptive conduct relating to WELS labelling may simultaneously breach consumer law provisions. The WELS Act provides that its provisions are additional to, not in substitution for, other Commonwealth law (section 10).

Corporations Act 2001 (Cth): Where a respondent company is in liquidation, the Regulator must obtain leave under section 500(2) of the Corporations Act before proceeding: this was the procedural issue resolved in the 2020 FCA interlocutory decision.

Advertising alone is supply: Under the definition in section 7A, an offer to supply includes making a product available, exposing, displaying, or advertising it. A business that advertises an unregistered WELS product on a website, even if it has not yet completed any sale, is already in contravention of section 33. As Cheeseman J confirmed in the 2022 Renaissance Bathrooms matter, contraventions run from the day the advertising goes live.

Each day is a separate contravention: Section 44N provides that a continuing failure to comply results in a separate contravention for each day the failure continues. A company that continuously advertises unregistered products over a 500-day period is not looking at a single 300-penalty-unit exposure but potentially 500 separate contraventions.

Civil penalty proceedings have a 4-year window, not 3 years: Unlike many Australian regulatory Acts, which have a 3-year time limit for proceedings, section 44A(2) of the WELS Act provides 4 years for civil penalty proceedings.

No mental element needed for civil penalties (except s 32A and ancillary liability): Section 44Q provides that intention, knowledge, recklessness, and negligence are irrelevant for most civil penalty proceedings. A business does not need to know its products are unregistered or unlabelled. Mistake of fact is a partial defence under section 44P but requires positive evidence by the person that they believed in different facts.

Consent to inspection does not prevent refusal: Section 50 confirms that refusing to allow a WELS inspector to enter premises is not an offence if no warrant exists. However, the Regulator may then apply for a warrant.

State and Territory concurrent regulation: Many States and Territories have enacted mirror legislation using the Commonwealth's WELS standards. A business in contravention of the Commonwealth Act may simultaneously contravene State or Territory laws, although section 16 prevents double punishment for the same act.

Online retailer advertising unregistered taps: A company operating an Australian e-commerce business advertises tap products on its website for sale to residential customers. The taps are WELS products (as determined by the Minister) but have not been registered. From the day the advertising appears, the company contravenes section 33 for each tap product listed. If 40 products are listed for 200 days, that is potentially 8,000 separate contraventions, each attracting up to 300 penalty units (at the body corporate rate). The Regulator may apply for a civil penalty order within 4 years.

Plumbing fixtures company using incorrect efficiency ratings: A manufacturer registers its products and obtains WELS ratings, but displays a star rating on its advertising that is inconsistent with the rating actually achieved under testing. This contravenes section 38 (information inconsistent with the applicable WELS standard). The strict liability offence and civil penalty provision both apply; the company cannot rely on having registered the product if the labelling information is wrong.

Liquidated business continuing to operate through related entities: A company found to be contravening the WELS Act goes into voluntary administration. The Regulator may apply for leave under section 500(2) of the Corporations Act to proceed against the company in liquidation, as occurred in the 2020 FCA interlocutory decision. Meanwhile, individuals involved in the company's operations may face accessory liability under section 44M if they were knowingly concerned in the contraventions.

Compliance audit following complaints: The Regulator receives industry complaints that a particular bathroom products supplier is selling unregistered products. If the Regulator suspects a contravention and considers it in the public interest, the Regulator may issue a written compliance audit notice under section 43A requiring the supplier to commission an independent audit of its WELS compliance and provide the results. Non-compliance with the audit notice is itself a 30-penalty-unit contravention.

Internal review of registration refusal: A manufacturer applies to register a new shower product. The Regulator refuses because the product does not meet minimum water efficiency requirements. The manufacturer has 30 days from when the decision comes to their notice to apply for internal review under section 71. On internal review, the decision must be made by the Regulator personally or by a senior delegate who was not involved in the original refusal. If the manufacturer is still dissatisfied with the outcome, they may apply to the Administrative Review Tribunal under section 72.