Water Efficiency Labelling and Standards Act 2006 (Western Australia)

Mechanically, the Water Efficiency Labelling and Standards Act 2006 (WA) establishes Western Australia’s participation in the national WELS scheme by: (a) adopting the Commonwealth WELS scheme as a “corresponding law” (s12) and declaring the intention that the State Act form part of a cooperative national scheme (s8); (b) making the Commonwealth Regulator the focal point for registration, standards and administration (see the note to s21 and the definition of Regulator in s7(1)); (c) creating State‑level offences and enforcement tools that operate alongside the Commonwealth Act (see Part 7 and Part 8); (d) providing for appointment and powers of WELS inspectors in the State (Part 9); (e) setting up financial flows so fines and modified penalties collected by the State are paid into the Consolidated Account and then forwarded to the Commonwealth WELS Account (s65); and (f) preserving review rights both internally and to the Administrative Appeals Tribunal subject to the Commonwealth Act’s regulations (ss71-72).

The Act produces concrete regulatory obligations for manufacturers and suppliers of covered products. It (i) requires manufacturers to apply for product registration where a WELS standard so requires (ss26-28, 33); (ii) imposes labelling requirements for registered products when the applicable WELS standard requires labelling (s20(1)-(2), s34); and (iii) sets criminal and civil penalties for supplying unregistered products, failing to meet minimum water efficiency or general performance requirements, misuse of WELS information, and for false or misleading information connected with applications or compliance (ss33-36, 37-39, 39A). The maximum monetary penalties are expressed in penalty units; the Act specifies the conversion mechanism to dollars via the Commonwealth Crimes Act penalty unit (s7(3)).

The Act also supplies enforcement instruments beyond criminal prosecution: infringement notices for prescribed offences (s40 and s40A), enforceable undertakings (ss42-43), publicising convictions (s41), and injunction relief via the Supreme Court (s44). It equips WELS inspectors with powers to inspect public areas of business premises, to enter with consent, and to enter under warrant with powers to require answers and seize evidential material (ss48-51, 55). Procedural protections and constraints are present: minimum notice periods for information and appearance notices (s61(1a), s62(1a)), the privilege against self‑incrimination preserved (s63), and limits on detention and return of seized material (ss55-57).

CrestWestern Australia

Water Efficiency Labelling and Standards Act 2006

Western Australia

Water Efficiency Labelling and Standards Act 2006

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Objects of Act 2
Act to bind the Crown 2
External Territories 2

5A. Numbering 3

5B. Notes 3

Part 2 — Interpretation

Application of the Criminal Code 4
Definitions 4

Part 3 — National WELS scheme

WELS scheme to be a national cooperative scheme 7
Application of this Act 7
Relationship to other State laws 7
State and Territory laws may operate concurrently 7
Meaning of “corresponding law” 7
Commonwealth consent to conferral of functions etc. on the Regulator or inspectors by corresponding laws 7
How duty is imposed by corresponding laws 8
When a corresponding State‑Territory law imposes a duty 8
No doubling up of liabilities 8
Review of decisions under this Act 8

Part 4 — WELS products and WELS standards

WELS products 9
WELS standards 9
Meaning of WELS labelled 9

Part 5 — The WELS Regulator

The Regulator 10
Functions of the Regulator 10
Powers of the Regulator 11
Arrangements with other agencies 11
Delegation 11

Part 6 — Registration of WELS products

Applying for registration 12
Documentation etc. to be provided with application for registration 12
Registration of products 13
Grounds for refusing to register 13
Period of registration 14
Cancelling or suspending registration 14

Part 7 — Offences relating to the supply of WELS products

Division 1 — Applicable WELS standards

Meaning of applicable WELS standard 16

Division 2 — Registration and labelling

Registration requirement 16
Labelling registered products 16

Division 3 — Minimum efficiency and performance requirements

Minimum water efficiency — products required to be registered 17
Minimum general performance — products required to be registered 17

Division 4 — Misuse of WELS standards etc.

Misuse of WELS standards and information 18
Information inconsistent with WELS standards 18
Using information in the supply of products 18

Division 5 — False or misleading information or document

39A. False or misleading information or document 19

Part 8 — Other enforcement

Division 1 — Infringement notices

Infringement notices 20

40A. Content of notice 20

40B. Extension of time 21

40C. Withdrawal of notice 21

40D. Benefit of paying modified penalty 21

40E. Application of penalties collected 22

40F. Production of identity card 22

Division 2 — Publicising offences

Regulator may publicise offences 22

Division 3 — Enforceable undertakings

Acceptance of undertakings 23
Enforcement of undertakings 23

Division 4 — Injunctions

Injunctions 24

Part 9 — WELS inspectors

Division 1 — Appointment of WELS inspectors

Regulator may appoint WELS inspectors 26
Identity cards 26

46A. Offences in relation to WELS inspectors 27

Division 2 — Powers of WELS inspectors

Purposes for which powers can be used 27
Inspection powers — public areas of WELS business premises 28
Inspection powers — with consent 28
Refusing consent is not an offence 29
Inspection powers — with warrant 29
Announcement before entry under warrant 30
Copy of warrant to be given to occupier 30
Occupier must provide inspector with facilities and assistance 31
Seizing or securing evidential material 31
Holding evidential material for more than 90 days 31
Returning evidential material 32

Division 3 — Applying for warrants to enter WELS premises

Ordinary warrants 32
Warrants by telephone, fax or other electronic means 33

Division 4 — Giving WELS information to WELS inspectors

Meaning of person who has WELS information 35
Regulator may require a person to provide information 35
Regulator may require a person to appear before a WELS inspector 36

62A. False or misleading information or documents 37

Division 5 — Privilege against self incrimination

Privilege against self incrimination not affected 38

Part 10 — Money

Division 1 — The WELS Account

WELS Account 39
Credits to the WELS Account 39
Purpose of the WELS Account 39

Division 2 — Charging fees and recovering fees and other amounts

Regulator may charge for services 40
Recovery of amounts 40

Part 11 — Review of decisions

Meaning of reviewable decision and affected person 41
Notification of decisions and review rights 41
Internal review 41
Review of decisions by AAT 42

Part 12 — Miscellaneous

Compensation for damage to electronic equipment 43
Compensation for acquisition of property 44
Annual report 44
Review of operation of WELS scheme 44
Regulations 44

Notes

Compilation table 46

Defined terms

Western Australia

Water Efficiency Labelling and Standards Act 2006

An Act to provide for water efficiency labelling and for the making of water efficiency standards, and for related purposes.

Part 1 — Preliminary

1. Short title

This is the Water Efficiency Labelling and Standards Act 2006 1.

2. Commencement

(1) This Act comes into operation on a day fixed by proclamation.

(2) Different days can be fixed under subsection (1) for different provisions.

3. Objects of Act

The objects of this Act are as follows —

(a) to conserve water supplies by reducing water consumption;

(b) to provide information for purchasers of water use and water saving products;

4. Act to bind the Crown

(1) This Act binds the Crown in right of the State and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) Nothing in this Act renders the Crown liable to be prosecuted for an offence.

5. External Territories

Note for this section:

The Commonwealth Act includes a provision extending that Act to every external Territory other than Norfolk Island.

5A. Numbering

In order to maintain consistent numbering between this Act and the Water Efficiency Labelling and Standards Act 2004 of the Commonwealth —

(a) if the Commonwealth Act contains a section that is not required in this Act, the provision number and heading to the section appearing in the Commonwealth Act are included in this Act despite the omission of the body of the section; and

(b) if this Act contains a section that is not included in the Commonwealth Act, the section is numbered so as to maintain consistency in numbering between sections common to both Acts.

Notes for this section:

A note appears under each heading of a kind referred to in paragraph (a) describing the omitted section of the Commonwealth Act.
A note appears under each section of a kind referred to in paragraph (b) highlighting the non‑appearance of an equivalent section in the Commonwealth Act.
Some sections contained in the Commonwealth Act and included in this Act have been modified for consistency with State law and practice.
This section does not appear in the Commonwealth Act.

5B. Notes

Notes in this Act are provided to assist understanding and do not form part of the Act.

Note for this section:

This section does not appear in the Commonwealth Act.

Part 2 — Interpretation

6. Application of the Criminal Code

Note for this section:

The Commonwealth Act section 6 applies Chapter 2 of the Criminal Code of the Commonwealth to offences against that Act.

7. Definitions

(1) In this Act —

AAT means the Administrative Appeals Tribunal established by the AAT Act;

AAT Act means the Administrative Appeals Tribunal Act 1975 of the Commonwealth;

affected person has the meaning given to that term in section 69(2) and (3);

agency —

(a) in relation to the Commonwealth, includes the following —

(i) an Agency within the meaning of the Financial Management and Accountability Act 1997 of the Commonwealth;

(ii) a body corporate established for a public purpose under a law of the Commonwealth;

and

(b) in relation to this or another State or a Territory, includes the following —

(i) a Department of State (however described) of the State or Territory;

(ii) a body corporate established for a public purpose under a law of the State or Territory;

applicable WELS standard has the meaning given to that term in section 32;

Commonwealth Act means the Water Efficiency Labelling and Standards Act 2004 of the Commonwealth;

Commonwealth Minister has the meaning given to that term in the Commonwealth Act;

corresponding law has the meaning given to that term in section 12;

damage, in relation to data, includes damage by erasure of data or addition of other data;

evidential material means any thing that may be relevant to the investigation or prosecution of an offence against this Act;

occupier, in relation to premises, includes a person who apparently represents the occupier of the premises;

person who has WELS information has the meaning given to that term in section 60;

registered means registered under a WELS standard;

Regulator means the Regulator established by the Commonwealth Act section 21;

reviewable decision has the meaning given to that term in section 69(1);

supply means —

(a) supply for consideration; or

(b) offer to supply for consideration;

water saving product means a device, appliance or fitting that —

(a) is not a water use product; and

(b) is designed to operate in place of a water use product;

water use product means a device, appliance or fitting through which, or into which, water flows as part of its normal operation;

WELS account means the Special Account established by the Commonwealth Act section 64(1);

WELS business premises means WELS premises that are open to the public on a regular basis;

WELS inspector means a person appointed under section 45(1);

WELS labelled has the meaning given to that term in section 20(1);

WELS premises means premises used for, or in connection with, the supply of one or more WELS products;

WELS product has the meaning given to that term in the Commonwealth Act section 18(1);

WELS scheme means the water efficiency labelling and standards scheme established by this Act and corresponding laws;

WELS standard, in relation to a WELS product, means the WELS standard set out for the product in the determination under the Commonwealth Act section 18(1).

(2) A reference in this Act to the Commonwealth Act or to a corresponding State‑Territory law within the meaning of the Commonwealth Act is a reference to that Act or law —

(a) as amended and in force for the time being; and

(b) as re‑enacted (and, if subsequently amended, as amended) and in force for the time being.

(3) In this Act a fine expressed as a number of penalty units is a fine of the amount calculated in accordance with the following formula —

View image in the official source

where —

A is that number of penalty units; and

B is the amount (in dollars) that is for the time being a penalty unit under section 4AA of the Crimes Act 1914 of the Commonwealth.

Note for this section:

This section differs from the Commonwealth Act section 7.

Part 3 — National WELS scheme

8. WELS scheme to be a national cooperative scheme

It is the intention of the Parliament that this Act form a part of a cooperative scheme between the Commonwealth and the States and Territories to provide for national water efficiency labelling and standards.

9. Application of this Act

Note for this section:

The Commonwealth Act includes a provision about the application of that Act.

10. Relationship to other State laws

The provisions of this Act are in addition to, and do not limit or derogate from, the provisions of any other written law.

11. State and Territory laws may operate concurrently

Note for this section:

The Commonwealth Act includes a provision allowing State laws to operate concurrently with that Act.

12. Meaning of “corresponding law”

For the purposes of this Act —

corresponding law means —

(a) the Commonwealth Act; or

(b) a corresponding State‑Territory law within the meaning of the Commonwealth Act, other than this Act.

13. Commonwealth consent to conferral of functions etc. on the Regulator or inspectors by corresponding laws

Note for this section:

The Commonwealth Act section 13 provides Commonwealth consent to the conferral of functions or powers, or the imposition of duties, on the Regulator or WELS inspectors by corresponding State‑Territory laws.

14. How duty is imposed by corresponding laws

Note for this section:

The Commonwealth Act section 14 deals with the imposing of duties on the Regulator or WELS inspectors by corresponding State‑Territory laws.

15. When a corresponding State‑Territory law imposes a duty

Note for this section:

The Commonwealth Act section 15 provides a definition of the phrase “imposes a duty" for the purposes of sections 13 and 14 of that Act.

16. No doubling up of liabilities

Note for this section:

The Commonwealth Act section 16 avoids the doubling up of liabilities under this Act and the Commonwealth Act. In this State the Sentencing Act 1995 section 11(2) operates so that a person who has been sentenced for an offence under the Commonwealth Act cannot be sentenced for the corresponding offence under this Act.

17. Review of decisions under this Act

Note for this section:

The Commonwealth Act section 17 provides for the review of State‑Territory decisions by the AAT. The review of decisions under this Act is dealt with in section 72.

Part 4 — WELS products and WELS standards

18. WELS products

Note for this section:

The Commonwealth Act section 18 enables the Commonwealth Minister to determine that water‑use or water‑saving products are WELS products and set out the WELS standard for the products.

19. WELS standards

Note for this section:

The Commonwealth Act section 19 states what must be set out in WELS standards and enables WELS standards to require products to be registered, and registered products to be WELS‑labelled, for the purposes of specified supplies of the product.

20. Meaning of WELS labelled

(1) A product is WELS labelled if it is labelled in accordance with requirements set out in the WELS standard for products of that kind.

(2) Such requirements may relate to one or more of the following —

(a) the characteristics, contents, placement and quality of labels attached to products or displayed on product packaging;

(b) documents or other material used for, or provided in connection with, the supply of the product;

Part 5 — The WELS Regulator

21. The Regulator

Note for this section:

The Commonwealth Act section 21 appoints the Secretary of the Department of State of the Commonwealth that deals with the matters to which the Commonwealth Act relates as the Regulator.

22. Functions of the Regulator

The Regulator has the following functions —

(a) to administer the WELS scheme;

(b) to undertake or commission research in relation to water use and water saving products;

(d) to undertake or commission research in relation to WELS standards;

(e) to assist in the development of WELS standards;

(f) to provide information and advice to the Minister about the operation of WELS standards;

(g) to provide information and advice to —

(i) the Minister;

(ii) the agency principally assisting the Minister in the administration of this Act; and

(iii) the public,

about the operation of the WELS scheme;

(h) to undertake or commission research in relation to the effectiveness of WELS standards in relation to reducing water usage;

(i) such other functions as are conferred on the Regulator by this Act, the regulations or any other law.

23. Powers of the Regulator

Subject to this Act, the Regulator has power to do all things necessary or convenient to be done for or in connection with the performance of the Regulator’s functions.

24. Arrangements with other agencies

The Regulator may make an arrangement with an agency of the State for the services of officers or employees of the agency to be made available to assist the Regulator in the performance of the functions or duties, or the exercise of the powers, of the Regulator.

25. Delegation

(1) The Regulator may, by writing, delegate one or more of the Regulator’s powers or functions under this Act to one or more of the following —

(a) an officer or employee of an agency of the State;

(b) an officer or employee of an agency of the Commonwealth;

(2) However, the Regulator must not delegate a power or function, under subsection (1), to an officer or employee of an agency of the State without the agreement of the State.

Note for this section:

The Commonwealth Act section 25(3) states that a delegate of the Regulator “is, in the exercise of the delegate’s delegated powers and functions, subject to the Regulator’s directions”. In this State the Interpretation Act 1984 section 59(1)(b) states that a delegation under a written law “may be made subject to such conditions, qualifications, limitations or exceptions as the person so delegating may specify”.

Part 6 — Registration of WELS products

26. Applying for registration

(1) The manufacturer of a WELS product may apply in writing to the Regulator for registration of the product.

Notes for this subsection:

A WELS standard may require products to be registered for the purposes of specified supplies: see the Commonwealth Act section 19(2). It is an offence to supply an unregistered product if the product is required to be registered for the purposes of the supply: see section 33.

However, if a WELS standard permits a product to be registered for the purposes of specified supplies and such a product is registered despite not being required to, WELS labelling requirements may apply: see the Commonwealth Act section 19(4). It is an offence to supply a product that is not WELS labelled if WELS labelling requirements apply: see section 34.

Section 39A provides offences in relation to false or misleading statements.

(2) A person who is not the manufacturer of a WELS product is taken to be the manufacturer of the product for the purposes of subsection (1) and section 31(3)(b) if that person would be taken to be the manufacturer of the product for the purposes of the Commonwealth Act sections 26(1) and 31(3)(b).

Note for this subsection:

This section differs from the Commonwealth Act section 26.

27. Documentation etc. to be provided with application for registration

(1) An application for registration of a WELS product must be made in the manner and form determined in writing by the Commonwealth Minister under the Commonwealth Act section 27(1), and must be accompanied by —

(a) any documentation (including test results and sample labels) specified in the determination; and

(b) any registration fee specified in the determination.

(2) A determination referred to in subsection (1) may also specify conditions that must be complied with in order for a product to remain registered.

Note for this section:

This section differs from the Commonwealth Act section 27.

28. Registration of products

(1) If —

(a) an application is made for registration of a WELS product; and

(b) the Regulator does not refuse to register the product under section 29,

the Regulator must, by notice published in the Commonwealth of Australia Gazette, register the product.

(2) The Regulator must give the applicant written notice of the registration or refusal.

(3) If, at the end of the period of 3 months that begins on the day on which the application is made —

(a) a notice registering the product has not been published in the Commonwealth of Australia Gazette; and

(b) the applicant has not been notified, under subsection (2), that the Regulator has refused to register the product,

the Regulator is taken to have refused to register the product.

29. Grounds for refusing to register

The Regulator may refuse to register a WELS product if —

(a) the application is not made in accordance with the applicable determination under the Commonwealth Act section 27(1);

(b) the Regulator is not satisfied that all of the information provided in the application is accurate; or

(c) the product does not satisfy a minimum water efficiency or minimum general performance requirement that the product is required to satisfy by the WELS standard for products of that kind.

30. Period of registration

(1) Unless subsection (2) applies, a WELS product that is registered remains registered until the first of the following happens —

(a) the registration is cancelled or suspended under section 31;

(b) the period of 5 years that begins on the day on which the product is registered ends.

(2) If —

(a) a WELS product is registered under a WELS standard (the first WELS standard); and

(b) the first WELS standard is replaced,

the product remains registered under the first WELS standard until the first of the following happens —

(d) the period of one year that begins on the day on which the first WELS standard was replaced ends.

(3) If the Commonwealth Minister, by writing, determines that, for specified purposes, the period of one year mentioned in the Commonwealth Act section 30(2)(d) is extended by a further specified period, the period of one year mentioned in subsection (2)(d) of this section is extended for the same purposes by the same further period.

31. Cancelling or suspending registration

(1) The Regulator may, by notice published in the Commonwealth of Australia Gazette, cancel or suspend the registration of a WELS product if —

(a) registration conditions are not complied with (see section 27(2)); or

(b) the Regulator is satisfied that information provided in the application for registration of the product —

(i) was not accurate at the time of the application; or

(ii) is no longer accurate because changes have been made to the product.

(2) If the Regulator cancels or suspends the registration of a WELS product under subsection (1), the Regulator must give written notice of the cancellation or suspension to the person on whose application the product was registered.

(3) The Regulator must, by notice published in the Commonwealth of Australia Gazette, cancel the registration of a WELS product if —

(a) the WELS standard included in the most recent determination made under the Commonwealth Act section 18(1) that relates to products of that kind does not require the product to be registered; and

(b) the manufacturer on whose application the product was registered makes a written request to the Regulator for the registration to be cancelled.

Part 7 — Offences relating to the supply of WELS products

Division 1 — Applicable WELS standards

32. Meaning of applicable WELS standard

(1) The applicable WELS standard for a WELS product that is registered is the WELS standard under which the product is registered.

(2) The applicable WELS standard for a WELS product that is not registered is the WELS standard included in the most recent determination made under the Commonwealth Act section 18(1) that relates to products of that kind.

Division 2 — Registration and labelling

33. Registration requirement

A person commits an offence if —

(a) the person supplies a WELS product;

(b) the applicable WELS standard requires the product to be registered for the purposes of the supply; and

Penalty: a fine of 60 penalty units.

34. Labelling registered products

A person commits an offence if —

(a) the person supplies a WELS product;

(b) the product is registered;

(d) the product is not WELS labelled.

Penalty: a fine of 60 penalty units.

Division 3 — Minimum efficiency and performance requirements

35. Minimum water efficiency — products required to be registered

A person commits an offence if —

(a) the person supplies a WELS product;

(b) the applicable WELS standard requires the product —

(i) to be registered for the purposes of the supply; and

(ii) to comply with minimum water efficiency requirements for the purposes of the supply;

and

Penalty: a fine of 60 penalty units.

36. Minimum general performance — products required to be registered

A person commits an offence if —

(a) the person supplies a WELS product;

(b) the applicable WELS standard requires the product —

(i) to be registered for the purposes of the supply; and

(ii) to comply with minimum general performance requirements for the purposes of the supply;

and

Penalty: a fine of 60 penalty units.

Division 4 — Misuse of WELS standards etc.

37. Misuse of WELS standards and information

A person commits an offence if the person —

(a) supplies a WELS product;

(b) uses a WELS standard, or information included in a WELS standard, for, or in relation to, the supply of the product; and

Penalty: a fine of 60 penalty units.

38. Information inconsistent with WELS standards

A person commits an offence if —

(a) the person uses information for, or in relation to, the supply of a WELS product; and

(b) the information is inconsistent with the information contained in the applicable WELS standard for the product.

Penalty: a fine of 60 penalty units.

39. Using information in the supply of products

(1) For the purposes of sections 37 and 38, information is used for, or in relation to, the supply of a product if the information is conveyed on, or by —

(a) a label attached to the product;

(b) the packaging in which the product is supplied;

(d) any advertising that relates to the product.

(2) Subsection (1) does not limit the general meaning of words used in sections 37 and 38.

Division 5 — False or misleading information or document

39A. False or misleading information or document

A person must not —

(a) in connection with an application made to the Regulator under this Act; or

(b) in compliance or purported compliance with this Act (other than Part 9 Division 4),

do either of the following —

(c) give information (whether orally or in writing) that the person knows to be false or misleading in a material particular;

(d) produce a document that the person knows to be false or misleading in a material particular without —

(i) indicating to the person to whom the document is produced that it is false or misleading, and the respect in which it is false or misleading; and

(ii) providing correct information to that person, if the person producing the document is in possession of, or can reasonably acquire, the correct information.

Penalty: a fine of 60 penalty units or imprisonment for one year.

Note for this section:

This section does not appear in the Commonwealth Act but provisions to the same effect (except as to penalty) are included in Part 7.4 of the Criminal Code of the Commonwealth.

Part 8 — Other enforcement

Division 1 — Infringement notices

40. Infringement notices

(1) A WELS inspector who has reason to believe that a person has committed a prescribed offence under Part 7 Division 2, 3 or 4 may, not more than 12 months after the alleged offence is believed to have been committed, give an infringement notice to the alleged offender.

(2) An offence cannot be prescribed under this section if it is punishable by imprisonment.

Note for this section:

This section differs from the Commonwealth Act section 40.

40A. Content of notice

(1) An infringement notice is to be in the prescribed form and is to —

(a) contain a description of the alleged offence;

(b) advise that if the alleged offender does not wish to have a charge of the alleged offence heard and determined by a court, the amount of money specified in the notice as being the modified penalty for the offence may be paid to the Regulator within a period of 28 days after the giving of the notice; and

(2) In an infringement notice the amount specified as being the modified penalty for the offence referred to in the notice is to be the amount that was the prescribed modified penalty at the time the alleged offence is believed to have been committed.

(3) The modified penalty that may be prescribed for an offence is not to exceed 20% of the maximum penalty that could be imposed for that offence by a court.

Note for this section:

This section does not appear in the Commonwealth Act.

[Section 40A amended: No. 17 of 2014 s. 10.]

40B. Extension of time

The Regulator may, in a particular case, extend the period of 28 days within which the modified penalty may be paid and the extension may be allowed whether or not the period of 28 days has elapsed.

Note for this section:

This section does not appear in the Commonwealth Act.

40C. Withdrawal of notice

(1) The Regulator may, whether or not the modified penalty has been paid, withdraw an infringement notice by sending to the alleged offender a notice in the prescribed form stating that the infringement notice has been withdrawn.

(2) If an infringement notice is withdrawn after the modified penalty has been paid, the amount is to be refunded.

Note for this section:

This section does not appear in the Commonwealth Act.

40D. Benefit of paying modified penalty

(1) Subsection (2) applies if the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed and the notice has not been withdrawn.

(2) If this subsection applies it prevents the bringing of proceedings and the imposition of penalties to the same extent that they would be prevented if the alleged offender had been convicted by a court of, and punished for, the alleged offence.

(3) Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.

Note for this section:

This section does not appear in the Commonwealth Act.

40E. Application of penalties collected

An amount paid as a modified penalty is, subject to section 40C(2), to be dealt with as if it were a penalty imposed by a court as a penalty for an offence.

Note for this section:

This section does not appear in the Commonwealth Act.

40F. Production of identity card

A WELS inspector is to produce the identity card issued to the inspector under section 46 whenever required to do so by a person to whom an infringement notice has been or is about to be given.

Note for this section:

This section does not appear in the Commonwealth Act.

Division 2 — Publicising offences

41. Regulator may publicise offences

(1) The Regulator may publicise, in any way the Regulator thinks appropriate, an offence against this Act for which a person has been convicted.

(2) This Division does not —

(a) limit the Regulator’s powers to publicise an offence against this Act;

(b) prevent anyone else from publicising an offence against this Act; or

Division 3 — Enforceable undertakings

42. Acceptance of undertakings

(1) The Regulator may accept a written undertaking given by a person in connection with a matter relating to —

(a) complying with a WELS standard; or

(b) complying with a registration condition (see section 27(2)).

(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Regulator.

43. Enforcement of undertakings

(1) If the Regulator considers that a person who gave an undertaking under section 42 has breached any of its terms, the Regulator may apply to the Supreme Court for an order under subsection (2).

(2) If the Supreme Court is satisfied that the person has breached a term of the undertaking, the Court may make one or more of the following orders —

(a) an order directing the person to comply with that term of the undertaking;

(b) an order directing the person to pay to the State an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

Note for this section:

The Commonwealth Act section 43 confers a similar power to enforce undertakings on the Federal Court of Australia.

Division 4 — Injunctions

44. Injunctions

(1) If a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute, an offence against this Act, the Supreme Court may, on the application of the Regulator, grant an injunction —

(a) restraining the person from engaging in the conduct; or

(b) requiring the person to do an act or thing.

(2) On an application, the Court may, if it thinks it appropriate, grant an injunction by consent of all parties to the proceedings, whether or not the Court is satisfied that the person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute, an offence against this Act.

(3) The Court may, if it thinks it desirable, grant an interim injunction pending its determination of an application.

(4) The Court is not to require the Regulator or anyone else, as a condition of granting an interim injunction, to give an undertaking as to damages.

(5) The Court may discharge or vary an injunction it has granted.

(6) The power to grant or vary an injunction restraining a person from engaging in conduct may be exercised —

(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in such conduct; and

(b) whether or not the person has previously engaged in such conduct.

(7) The power to grant or vary an injunction requiring a person to do an act or thing may be exercised —

(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b) whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

Note for this section:

The Commonwealth Act section 44 confers a similar power to grant injunctions on the Federal Court of Australia.

Part 9 — WELS inspectors

Division 1 — Appointment of WELS inspectors

45. Regulator may appoint WELS inspectors

(1) The Regulator may, by writing, appoint any of the following as a WELS inspector —

(a) an officer or employee of an agency of the State;

(b) an officer or employee of an agency of the Commonwealth.

(2) However, the Regulator must not appoint an officer or employee of an agency of the State as a WELS inspector without the agreement of the State.

(3) In exercising powers or performing functions a WELS inspector must comply with any direction of the Regulator.

Note for this section:

This section differs from the Commonwealth Act section 45.

46. Identity cards

(1) The Regulator must issue an identity card to each WELS inspector.

(2) The identity card must —

(a) be in the form prescribed by the regulations made under the Commonwealth Act; and

(b) contain a recent photograph of the WELS inspector.

(3) A person commits an offence if —

(a) the person has been issued with an identity card;

(b) the person ceases to be a WELS inspector; and

Penalty: a fine of one penalty unit.

(4) A WELS inspector must carry his or her identity card at all times when exercising powers or performing functions as a WELS inspector.

(5) A WELS inspector is not entitled to exercise any powers under this Part in relation to premises if —

(a) the occupier of the premises has required the WELS inspector to produce his or her identity card for inspection by the occupier; and

(b) the WELS inspector fails to comply with the requirement.

Note for this section:

This section differs from the Commonwealth Act section 46.

46A. Offences in relation to WELS inspectors

(1) A person must not hinder or obstruct a WELS inspector who is exercising a power under this Act.

Penalty: a fine of 60 penalty units.

(2) A person who is not a WELS inspector must not, in any way, hold himself or herself out to be a WELS inspector.

Penalty: a fine of 60 penalty units.

Note for this section:

This section does not appear in the Commonwealth Act but provisions to the same effect (except as to penalty) are included in Part 7.8 of the Criminal Code of the Commonwealth.

Division 2 — Powers of WELS inspectors

47. Purposes for which powers can be used

A WELS inspector may exercise the powers set out in this Division for the following purposes —

(a) determining whether a person is complying with this Act;

(b) investigating a possible offence against this Act.

48. Inspection powers — public areas of WELS business premises

(1) For the purposes set out in section 47, a WELS inspector may do one or more of the following in a public area of WELS business premises when the premises are open to the public —

(a) inspect WELS products;

(b) purchase any WELS product that is available for sale;

(c) inspect or collect written information, advertising or any other document that is available, or made available, to the public;

(d) discuss product features with any person;

(e) observe practices relating to the supply of products.

(2) Subsection (1) does not affect any right of the occupier of the premises to refuse to allow a WELS inspector to enter, or remain on, the premises.

49. Inspection powers — with consent

(1) A WELS inspector may enter WELS premises and exercise the powers set out in subsection (3) if the occupier of the premises consents to the entry and the exercise of those powers.

(2) Before obtaining consent, the WELS inspector must inform the occupier that the occupier may refuse consent, or withdraw consent, at any time.

(3) For the purposes set out in section 47, a WELS inspector who enters WELS premises in accordance with subsection (1) may do one or more of the following —

(a) search the premises and any thing (including a vehicle) on the premises;

(b) inspect, examine, take measurements of or conduct tests on any thing on the premises;

(d) inspect any book, record or document on the premises;

(e) take extracts from or make copies of any such book, record or document;

(f) take onto the premises such equipment and materials as the WELS inspector requires for the purposes of exercising powers in relation to the premises;

(g) operate equipment on the premises for the purposes of gaining access to a document or record relating to one or more WELS products.

50. Refusing consent is not an offence

The occupier of WELS premises does not commit an offence if —

(a) the occupier refuses to allow a WELS inspector to enter, or remain on, the premises; and

(b) the WELS inspector does not have a warrant to enter the premises.

51. Inspection powers — with warrant

(1) A WELS inspector may enter WELS premises and exercise the powers set out in subsection (2) if the WELS inspector has a warrant for the entry.

(2) For the purposes set out in section 47, a WELS inspector who enters WELS premises under warrant may do one or more of the following —

(a) exercise one or more of the powers set out in section 49(3);

(b) require any person on the premises to —

(i) answer any questions put by the WELS inspector; and

(ii) produce any book, record or document requested by the WELS inspector;

(3) A person commits an offence if —

(a) the person is required to answer a question or produce a book, record or document under subsection (2)(b); and

(b) the person does not answer the question or produce the book, record or document.

Penalty: a fine of 60 penalty units.

52. Announcement before entry under warrant

(1) A WELS inspector must, before entering WELS premises under a warrant —

(a) announce that he or she is authorised to enter the premises; and

(b) give any person on the premises an opportunity to allow entry to the premises.

(2) A WELS inspector is not required to comply with subsection (1) if the WELS inspector believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.

53. Copy of warrant to be given to occupier

(1) If a warrant in relation to WELS premises is being executed and the occupier of the premises is present at the premises, the WELS inspector must —

(a) give a copy of the warrant to the occupier; and

(b) identify himself or herself to the occupier.

(2) The copy of the warrant does not need to include the signature of the magistrate who issued the warrant.

54. Occupier must provide inspector with facilities and assistance

A person commits an offence if —

(a) the person is the occupier of WELS premises;

(b) a WELS inspector enters the premises under a warrant; and

(c) the person does not provide the WELS inspector with all reasonable facilities and assistance for the effective execution of the warrant.

Penalty: a fine of 30 penalty units.

55. Seizing or securing evidential material

(1) If a WELS inspector seizes or secures evidential material on WELS premises, the WELS inspector must give the occupier of the premises a receipt for the material.

(2) The Regulator may make copies of the material.

(3) The Regulator may examine or test the material, even though that might result in damage or destruction of the material or a reduction in its value.

(4) The Regulator must return or release the material when the first of the following occurs —

(a) the material is no longer needed for the purposes for which it was seized or secured;

(b) the period of 90 days that begins on the day on which the material was seized or secured ends.

56. Holding evidential material for more than 90 days

(1) Despite section 55(4)(b), the Regulator may —

(a) apply to the Magistrates Court for an order allowing possession or control of evidential material for such further period as is specified in the order; and

(b) if the Magistrates Court makes such an order — so retain possession or control of the material.

(2) In determining the application, the Magistrates Court must allow the owner of the material to appear and be heard.

(3) The Magistrates Court must not make an order allowing possession or control of the material for a further period unless it is satisfied that the order is necessary for the purposes of prosecuting an offence against this Act.

57. Returning evidential material

If the Regulator cannot, despite making reasonable efforts, locate the owner of evidential material, the Regulator may dispose of the material in such manner as the Regulator thinks appropriate.

Division 3 — Applying for warrants to enter WELS premises

58. Ordinary warrants

(1) A WELS inspector may apply to a magistrate for the issue of a search warrant in relation to particular WELS premises.

(2) The magistrate may issue the warrant if the magistrate is satisfied, by evidence on oath or by affidavit, that it is necessary to enter the WELS premises for one or more of the following purposes —

(a) determining whether a person is complying with this Act;

(b) investigating a possible offence against this Act.

(3) However, the magistrate must not issue the warrant unless the WELS inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

(4) The warrant must —

(a) authorise the WELS inspector to enter the premises using such assistance and such force to enter the premises as is necessary and reasonable;

(b) state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night;

(c) specify the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect; and

(d) state the purpose for which the warrant is issued.

59. Warrants by telephone, fax or other electronic means

(1) If, in an urgent case, a WELS inspector considers it necessary to do so, the WELS inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant under section 58.

(2) The magistrate may —

(a) require communication by voice to the extent that it is practicable in the circumstances; and

(b) make a recording of the whole or any part of any such communication by voice.

(3) Before applying for the warrant, the WELS inspector must prepare an affidavit of the kind mentioned in section 58(2) that sets out the grounds on which the warrant is sought.

(4) If it is necessary to do so, the WELS inspector may apply for the warrant before the affidavit is sworn or affirmed.

(5) If the magistrate is satisfied —

(a) after having considered the terms of the affidavit; and

(b) after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought,

that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 58 if the application had been made under that section.

(6) If the magistrate completes and signs the warrant —

(a) the magistrate must —

(i) tell the WELS inspector what the terms of the warrant are;

(ii) tell the WELS inspector the day on which and the time at which the warrant was signed;

(iii) tell the WELS inspector the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect; and

(iv) record on the warrant the reasons for issuing the warrant;

and

(b) the WELS inspector must —

(i) complete a form of warrant in the same terms as the warrant completed and signed by the magistrate; and

(ii) write on the form the name of the magistrate and the day on which and the time at which the warrant was signed.

(7) The WELS inspector must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate —

(a) the form of warrant completed by the WELS inspector; and

(b) the affidavit referred to in subsection (3), which must have been duly sworn or affirmed.

(8) When the magistrate receives those documents, the magistrate must —

(a) attach them to the warrant that the magistrate completed and signed; and

(b) deal with them in the way in which the magistrate would have dealt with them if the application had been made under section 58.

(9) A form of warrant duly completed under subsection (6) is authority for the same powers as are authorised by the warrant signed by the magistrate.

(10) If —

(a) it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

(b) the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence,

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

Division 4 — Giving WELS information to WELS inspectors

60. Meaning of person who has WELS information

A person is a person who has WELS information if the Regulator believes, on reasonable grounds, that the person is capable of giving information, or producing books, records or documents, relevant for the purposes of investigating or preventing an offence against this Act.

61. Regulator may require a person to provide information

(1) The Regulator may, by written notice, require a person who has WELS information to give to the WELS inspector specified in the notice, and in the manner and within the period specified in the notice —

(a) such information as is specified in the notice; or

(b) any book, record or document that is specified in the notice.

(1a) The period specified in a notice under subsection (1) must end not less than 14 days after the notice is given.

(2) A notice under subsection (1) must set out the effect of section 62A.

(3) A person commits an offence if —

(a) the person is required to give information or a book, record or document to a WELS inspector under subsection (1); and

(b) the person does not give the WELS inspector the information, book, record or document.

Penalty: a fine of 60 penalty units.

62. Regulator may require a person to appear before a WELS inspector

(1) The Regulator may, by written notice, require a person who has WELS information to appear before the WELS inspector specified in the notice, at a time and place specified in the notice —

(a) to answer any questions put by the WELS inspector; and

(b) to produce to the WELS inspector such books, records or documents as are referred to in the notice.

(1a) The time specified in a notice under subsection (1) must not be earlier than 14 days after the notice is given.

(2) A notice under subsection (1) must set out the effect of section 62A.

(3) A person commits an offence if —

(a) the person is required to appear before a WELS inspector under subsection (1); and

(b) the person does not appear before the WELS inspector.

Penalty: a fine of 60 penalty units.

(4) A person commits an offence if —

(a) the person is required under subsection (1) to appear before a WELS inspector; and

(b) when appearing before the WELS inspector, the person does not —

(i) answer a question put by the WELS inspector; or

(ii) produce a book, record or document to the WELS inspector as required by notice given under that subsection.

Penalty: a fine of 60 penalty units.

62A. False or misleading information or documents

(1) A person commits an offence if —

(a) the person gives information to a WELS inspector under section 61(1) or 62(1); and

(b) the person does so knowing that the information —

(i) is false or misleading in a material particular; or

(ii) omits any matter or thing without which the information is misleading in a material particular.

Penalty: a fine of 60 penalty units.

(2) A person commits an offence if —

(a) the person produces a book, record or document to a WELS inspector under section 61(1) or 62(1); and

(b) the person does so knowing that the document is false or misleading in a material particular.

Penalty: a fine of 60 penalty units.

(3) Subsection (2) does not apply to a person who produces a book, record or document if the book, record or document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate —

(a) stating that the book, record or document is, to the knowledge of the first mentioned person, false or misleading in a material particular; and

(b) setting out, or referring to, the material particular in which the book, record or document is, to the knowledge of the first mentioned person, false or misleading.

Note for this section:

This section does not appear in the Commonwealth Act but provisions to the same effect (except as to penalty) are included in Part 7.4 of the Criminal Code of the Commonwealth.

Division 5 — Privilege against self incrimination

63. Privilege against self incrimination not affected

Nothing in this Part affects the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate the person or make the person liable to a penalty, and the person does not commit an offence under section 46A(1) by so refusing.

Note for this section:

This section differs from the Commonwealth Act section 63.

Part 10 — Money

Division 1 — The WELS Account

64. WELS Account

Note for this section:

The Commonwealth Act section 64 establishes the WELS Account.

65. Credits to the WELS Account

(1) Money received by the State —

(a) in respect of fines or modified penalties for offences against this Act;

(b) in respect of undertakings given under section 42; or

must be paid into the Consolidated Account.

(2) The Treasurer must pay amounts equal to money paid into the Consolidated Account under subsection (1) to the Commonwealth for crediting to the WELS Account.

(3) The Consolidated Account is appropriated to the necessary extent to enable amounts to be paid to the Commonwealth in accordance with subsection (2).

Note for this section:

This section differs from the Commonwealth Act section 65.

[Section 65 amended: No. 46 of 2009 s. 17.]

66. Purpose of the WELS Account

The purpose of the WELS Account is to make payments —

(a) to further the objects of this Act (as set out in section 3) and those of any corresponding law; and

(b) otherwise in connection with the performance of the Regulator’s functions under this Act or a corresponding law.

Division 2 — Charging fees and recovering fees and other amounts

67. Regulator may charge for services

The Regulator may charge fees for services provided by, or on behalf of, the Regulator in the performance of the Regulator’s functions under this Act.

68. Recovery of amounts

The following amounts may be recovered in a court of competent jurisdiction as debts due to the State —

(a) fees payable to the State under this Act or a corresponding law;

(b) amounts payable to the State in connection with the performance of the Regulator’s functions under this Act.

Part 11 — Review of decisions

69. Meaning of reviewable decision and affected person

(1) Each of the following decisions is a reviewable decision —

(a) a decision by the Regulator to refuse to register a WELS product under section 29;

(b) a decision by the Regulator to cancel or suspend the registration of a WELS product under section 31.

(2) A person whose application to register a WELS product is refused under section 29 is the affected person in relation to the decision to refuse to register the WELS product.

(3) The person on whose application a WELS product was registered is the affected person in relation to a decision to cancel or suspend that registration under section 31.

70. Notification of decisions and review rights

(1) The Regulator must, as soon as practicable after making a reviewable decision, cause a notice in writing to be given to the affected person in relation to the decision, containing —

(a) the terms of the decision;

(b) the reasons for the decision; and

(2) A failure to comply with the requirements of subsection (1) in relation to a decision does not affect the validity of the decision.

71. Internal review

(1) The affected person in relation to a reviewable decision (other than a decision made by the Regulator personally) may apply in writing to the Regulator for review (the internal review) of the decision.

(2) An application for internal review must be made within 30 days after the day on which the decision first came to the notice of the applicant, or within such further period (if any) as the Regulator, either before or after the end of that period, allows.

(3) The Regulator must, on receiving an application, review the reviewable decision personally.

(4) The Regulator may —

(a) make a decision affirming, varying or revoking the reviewable decision; and

(b) if the Regulator revokes the decision, make such other decision as the Regulator thinks appropriate.

72. Review of decisions by AAT

(1) Application may be made to the AAT for review of —

(a) a reviewable decision made by the Regulator personally; or

(b) an internal review decision made by the Regulator under section 71,

if the decision is declared by the regulations made under the Commonwealth Act to be a reviewable State‑Territory decision for the purposes of the Commonwealth Act section 17.

(2) The AAT Act (excluding Part IVA) and the regulations in force for the time being under that Act apply as laws of the State in relation to reviewable decisions as if this Act were a law of the Commonwealth and not a law of this State.

(3) For the purposes of this section, a reference in a provision of the AAT Act (as that provision applies as a law of the State) to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth.

(4) An application under subsection (1) may be made only by the affected person concerned.

(5) Subsection (4) has effect despite the AAT Act section 27(1).

Part 12 — Miscellaneous

73. Compensation for damage to electronic equipment

(1) This section applies if —

(a) as a result of electronic equipment being operated as mentioned in section 49 —

(i) damage is caused to the equipment;

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted;

and

(b) the damage or corruption occurs because —

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

(2) The Regulator must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the owner or user agree on.

(3) However, if the owner or user and the Regulator fail to agree, the owner or user may institute proceedings in the Supreme Court for such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

74. Compensation for acquisition of property

Note for this section:

The Commonwealth Act section 74 provides for payment of compensation by the Commonwealth for acquisition of property.

75. Annual report

The Minister must cause a copy of each annual report of the Regulator on the operation of the WELS scheme given to the State under the Commonwealth Act section 75 to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

Note for this section:

The Commonwealth Act section 75 provides for the preparation by the Regulator of an annual report on the operation of the WELS scheme. The Commonwealth Minister is required to give a copy to the State.

76. Review of operation of WELS scheme

The Minister must cause a copy of the report of the independent review of the WELS scheme given to the State under the Commonwealth Act section 76 to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

Note for this section:

The Commonwealth Act section 76 provides for an independent review of the operation of the WELS scheme to be undertaken as soon as possible after the fifth anniversary of the commencement of that section. The Commonwealth Minister is required to give a copy to the State.

77. Regulations

(1) The Governor may make regulations prescribing matters —

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Without limiting subsection (1), the regulations may —

(a) prescribe fees in respect of matters under this Act; and

(b) prescribe penalties of not more than 50 penalty units for offences against the regulations.

Notes

1 This is a compilation of the Water Efficiency Labelling and Standards Act 2006 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Short title	Number and year	Assent	Commencement
Water Efficiency Labelling and Standards Act 2006	74 of 2006	20 Dec 2006	s. 1 and 2: 20 Dec 2006; Act other than s. 1 and 2: 29 Apr 2009 (see s. 2 and Gazette 28 Apr 2009 p. 1417)
Statutes (Repeals and Minor Amendments) Act 2009 s. 17	46 of 2009	3 Dec 2009	4 Dec 2009 (see s. 2(b))
Statutes (Repeals and Minor Amendments) Act 2014 s. 10	17 of 2014	2 Jul 2014	6 Sep 2014 (see s. 2(b) and Gazette 5 Sep 2014 p. 3213)

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

AAT 7(1)

AAT Act 7(1)

affected person 7(1)

agency 7(1)

applicable WELS standard 7(1)

Commonwealth Act 7(1)

Commonwealth Minister 7(1)

corresponding law 7(1), 12

damage 7(1)

evidential material 7(1)

occupier 7(1)

person who has WELS information 7(1)

registered 7(1)

Regulator 7(1)

reviewable decision 7(1)

supply 7(1)

the first WELS standard 30(2)

water saving product 7(1)

water use product 7(1)

WELS account 7(1)

WELS business premises 7(1)

WELS inspector 7(1)

WELS labelled 7(1)

WELS premises 7(1)

WELS product 7(1)

WELS scheme 7(1)

WELS standard 7(1)

Western Australia

Water Efficiency Labelling and Standards Act 2006

Western Australia

Water Efficiency Labelling and Standards Act 2006

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Objects of Act 2
Act to bind the Crown 2
External Territories 2

5A. Numbering 3

5B. Notes 3

Part 2 — Interpretation

Application of the Criminal Code 4
Definitions 4

Part 3 — National WELS scheme

WELS scheme to be a national cooperative scheme 7
Application of this Act 7
Relationship to other State laws 7
State and Territory laws may operate concurrently 7
Meaning of “corresponding law” 7
Commonwealth consent to conferral of functions etc. on the Regulator or inspectors by corresponding laws 7
How duty is imposed by corresponding laws 8
When a corresponding State‑Territory law imposes a duty 8
No doubling up of liabilities 8
Review of decisions under this Act 8

Part 4 — WELS products and WELS standards

WELS products 9
WELS standards 9
Meaning of WELS labelled 9

Part 5 — The WELS Regulator

The Regulator 10
Functions of the Regulator 10
Powers of the Regulator 11
Arrangements with other agencies 11
Delegation 11

Part 6 — Registration of WELS products

Applying for registration 12
Documentation etc. to be provided with application for registration 12

WELS scheme and corresponding laws. The Act is a State contribution to the national WELS scheme; it treats the Commonwealth Act and other corresponding State‑Territory laws as “corresponding laws” (s12). The Act repeatedly cross‑references powers, determinations and standards made under the Commonwealth Act (see notes throughout Parts 3-6). The result is a cooperative, layered architecture: the Commonwealth sets WELS products and standards, the Regulator administers the national register and standards, and WA implements local enforcement, inspection and prosecution powers.

WELS products, water use and water saving products. The Act adopts the Commonwealth definitions. A WELS product is defined in the Commonwealth Act (the WA Act refers to the Commonwealth Act s18(1) in the definition of WELS product in s7(1)). Two operational categories appear in the definitions: water use products (devices through which water flows as part of normal operation) and water saving products (devices designed to operate in place of a water use product) (s7(1)). WELS standards may require registration and labelling for particular supplies (notes to s26 and s27, and s19 note).

Applicable WELS standard and registration. For a registered product, the applicable WELS standard is the standard under which it is registered; for an unregistered product, the applicable standard is the most recent WELS standard for that product type (s32). Manufacturers (or persons taken to be manufacturers under the Commonwealth Act tests, s26(2)) must apply for registration where a standard requires it (ss26-28). The procedural content of an application,including test results, sample labels and registration fees,is to be prescribed in a determination of the Commonwealth Minister (s27(1)).

Labelling and information. “WELS labelled” is defined by compliance with labelling requirements in the WELS standard, which may extend to labels on product, packaging, documents provided with supply, and advertising (s20(1)-(2)). The Act makes it an offence to supply a registered product that is required to be WELS labelled but is not (s34), and criminalises the use of information inconsistent with WELS standards in labelling, packaging, documentation and advertising (ss37-39).

Minimum performance requirements. WELS standards can set minimum water efficiency and minimum general performance requirements. Supplying a product that is required to be registered and fails to meet those minima is an offence (ss35-36). These provisions are the mechanism by which the scheme changes the technical floor for market entry of certain products.

Regulator and delegation. The Regulator (defined to be the Commonwealth Regulator; see s7(1) and note to s21) has a broad set of functions (s22) and powers to do what is necessary to perform those functions (s23). The Regulator may delegate powers to officers of State and Commonwealth agencies with some constraints, and the State must agree before a State agency officer is appointed as a delegate (s25).

Inspectors and inspection powers. WELS inspectors are appointed by the Regulator (s45) and issued identity cards (s46). Inspectors have tiered powers: inspect public areas when premises are open (s48); enter with consent and exercise a broad set of search and examination powers (s49); or enter under warrant, require answers and seize evidential material (s51). Procedural steps apply to warrants including announcement and giving a copy to occupier where practicable (ss52-53). Persons required to produce records or attend for questioning have a minimum notice period (s61(1a); s62(1a)) and offences attend non‑compliance (ss61(3), 62(3)-(4)), with express protection for privilege against self‑incrimination (s63).

Enforcement palette. The state enforcement options include: prosecution for offences with statutory maximum penalties expressed in penalty units (Part 7); infringement notices with a modified penalty (s40-40D) subject to time limits and caps; the acceptance and court enforcement of enforceable undertakings (ss42-43); publicising convictions (s41); and injunctions via the Supreme Court to restrain or require conduct (s44). The Regulator can also levy fees for services (s67) and collect costs and fines that are channelled to the Commonwealth WELS Account via the State Consolidated Account (s65).

Financial flows and account. Money received by the State from fines, modified penalties and amounts in connection with Regulator functions must be paid into the Consolidated Account and the Treasurer must pay amounts equal to those to the Commonwealth for crediting to the WELS Account (s65). The WELS Account’s purpose is to further the objects of the Act and to fund Regulator functions (s66). The Regulator may also charge fees for services (s67) and recover amounts as debts (s68).

Review and rights. Decisions to refuse registration or to cancel/suspend registration are reviewable decisions (s69). The Regulator must notify affected persons of decisions and reasons (s70). Internal review is available to affected persons and the Regulator must personally review non‑personal decisions (s71). AAT review is available where declared by regulations under the Commonwealth Act and is subject to the AAT Act as applied to the State (s72).

Key criminal procedural safeguards. The Act preserves privilege against self‑incrimination (s63), prescribes processes for warrants and seizure (ss51-59, 55-57), sets notice and time limits for information requests (ss61-62) and creates offences for false or misleading information with significant penalties, including imprisonment where a false or misleading statement is used in an application or in compliance with the Act (s39A).

Manufacturers and persons treated as manufacturers. The Act places primary application and registration duties on manufacturers of WELS products; persons who would be taken to be the manufacturer for Commonwealth Act sections are taken to be the manufacturer for WA purposes (s26(1)-(2), s7(1) definition of registered). The application for registration must be accompanied by documentation specified by the Commonwealth Minister’s determination and by specified registration fees (s27(1)). Registration is a pre‑condition for certain supplies where the WELS standard requires it (s33), and suppliers face penalties for supplying unregistered products that are required to be registered (s33).

Suppliers and retailers. The Act criminalises supply of products where registration or labelling is required and absent, and makes it an offence to use WELS information inconsistently or to supply products that do not meet minimum water efficiency or general performance requirements (ss33-36, 37-39). “Supply” is defined to include offers to supply (s7(1)), so wholesalers, retailers, importers and online sellers fall squarely within the Act.

Importers and distributors. The Act’s scope is not limited to locally manufactured goods. The definition of manufacturer refers to the corresponding Commonwealth Act tests (s26(2) and note), which capture importers or local reps in some cases. Anyone who supplies a water use or water saving product within WA must comply with applicable WELS standards (ss32-36) and labelling obligations (s20(1)-(2), s34).

Regulatory and enforcement actors. The Regulator (the Commonwealth Regulator per s21 note and s7(1)) administers the scheme and may delegate duties; however the WA Act specifically authorises appointment of WELS inspectors for the State (s45). Inspectors may be State or Commonwealth officers, provided State agreement is obtained before appointing State agency officers (s45(1)-(2)). The Regulator may arrange with State agencies to use their officers (s24). The State’s Supreme Court is the forum for injunctions and for enforcing undertakings (ss43-44). The Magistrates Court is used for extension orders to retain seized material beyond 90 days (s56).

Consumers and purchasers. The Act’s stated objects include providing information to purchasers (s3(b)). Labelling obligations and prohibition on misleading information (s20(2), ss37-39) are directed at the information consumers receive at point of sale and in advertising, with the policy goal to influence consumer choice toward more efficient products.

Government and the Crown. The Act binds the Crown in right of the State (s4(1)) but expressly provides that nothing in the Act renders the Crown liable to be prosecuted for an offence (s4(2)). The Act also channels funds collected by the State to the Commonwealth WELS Account (s65), so penalties collected in WA do not remain with the State for local use; they are redirected to the national account.

Third parties and advisers. Businesses will require testing records, labelling proofs and documentation to support registration. The Regulator can require a person to provide information, produce documents or appear for questioning (ss61-62). False or misleading information or documents in these contexts attract substantial penalties (s39A, s62A). Thus, lawyers, testing laboratories, compliance consultants and accountants advising manufacturers, importers or suppliers are implicated in the compliance chain.

Judicial and administrative review bodies. Affected persons can seek internal review (s71) and, where regulations declare the decision reviewable, AAT review as applied to the State under the AAT Act (s72). The Supreme Court can hear injunctive applications and enforce undertakings (ss43-44). Magistrates Courts are involved in search warrant authorisations and extension of seizure retention (ss58-59, 56).

Overall footprint. The regime affects the entire supply chain for products that fall within WELS product categories: design, testing, labelling, advertising, importation, storage, distribution and retail. The Act couples national standard‑setting with State enforcement and inspection, meaning compliance actions by WA inspectors can trigger national registration consequences and vice versa, because the applicable standards and registration determinations originate at Commonwealth level (see ss18-19 notes and s27).

Duties imposed on manufacturers and suppliers. The Act creates several specific statutory duties:

Registration duty where a WELS standard requires registration for a particular supply; supplying an unregistered product in that circumstance is an offence (s33). The application process is set by Commonwealth Minister determination and must include documentation and fees as required (s27(1)).
Labelling duty where the applicable WELS standard requires registered products to be WELS labelled for that supply; supplying a product that is registered but not WELS labelled is an offence (s34). WELS labelling requirements can cover labels, supply documents and advertising (s20(2), s39(1)).
Minimum performance duties: if a WELS standard requires a product to meet minimum water efficiency and/or minimum general performance as a condition of supply, supplying a product that fails to comply is an offence (ss35-36).
Documentation and honesty duties: applicants and suppliers must not give false or misleading information in connection with an application or in compliance with the Act (s39A); persons required to provide information or produce documents to WELS inspectors must not give false or misleading information or documents (s62A).

Duties on persons with WELS information. The Regulator may serve written notices requiring the production of specified information or documents and requiring persons to appear to answer questions (ss61-62). The minimum period for compliance or appearance is not less than 14 days (s61(1a), s62(1a)). Failure to comply is a criminal offence with monetary penalties (ss61(3), 62(3)-(4)).

Inspectors’ duties and powers. WELS inspectors must comply with directions of the Regulator when exercising powers (s45(3)). They must produce identity cards upon request from a person served with an infringement notice (s40F) and generally carry identity cards when exercising powers (s46(4)). Where entering pursuant to a warrant they must announce and give an opportunity to allow entry unless immediate entry is necessary to prevent frustration (s52). They must give occupiers receipts for seized evidential material and must return material when no longer needed or after 90 days unless a Magistrates Court order extends retention (ss55-56).

Regulator’s functions and discretionary powers. The Regulator is tasked with administering the WELS scheme, undertaking or commissioning research, assisting in the development of WELS standards, providing advice to Ministers and the public, and such other functions conferred by law (s22). The Regulator has broad power to do all things necessary or convenient to perform functions (s23), may make arrangements with State agencies (s24), and may delegate powers with the State’s agreement where required (s25).

Rights to review and procedural protections. Affected persons have express internal review rights; the Regulator must personally review decisions on application (s71). The Regulator must provide written notice of reviewable decisions including reasons and particulars of review rights (s70). Where regulations under the Commonwealth Act declare a decision reviewable, AAT review is available and the AAT Act applies as a law of the State (s72). The privilege against self‑incrimination is explicitly preserved in respect of inspector powers and information requests (s63).

Injunctions and court remedies. The Regulator may apply to the Supreme Court for injunctions to restrain conduct that constitutes or would constitute an offence, or to require an act (s44). The Court can grant interim injunctions without requiring the Regulator to give an undertaking as to damages (s44(4)). The Court may also enforce undertakings accepted by the Regulator, and can order remedies including financial penalties up to the amount of financial benefit obtained through the breach (ss42-43).

Financial duties and fees. The Regulator may charge fees for services provided in performance of its functions (s67). Fees and other amounts payable to the State under this Act are recoverable as debts (s68). The Act requires monies received by the State for fines, modified penalties and undertakings to be paid into the Consolidated Account and the Treasurer must forward equivalent amounts to the Commonwealth WELS Account (s65).

Offences and penalties. The Act prescribes a set of offences in Part 7, many with maximum penalties of 60 penalty units (for example ss33-36, 37-38, 62A). The Act provides for modified penalties via infringement notices (s40A) where the modified penalty must not exceed 20% of the maximum court penalty (s40A(3)). The Act converts penalty units to dollar amounts by reference to the Commonwealth Crimes Act penalty unit formula (s7(3)).

Limits on Crown liability and scope. The Act binds the Crown but disclaims that it renders the Crown liable to be prosecuted (s4). The Act also contains limitations on double punishment across Commonwealth and State prosecutions in the notes (s16 note referencing Sentencing Act 1995 s11(2)). These provisions affect who can be prosecuted and limiting exposure for government actors.

Procedural duties relating to warrants and seizure. Inspectors must follow specified procedural steps when applying for and executing warrants (ss58-59, 52-53). When material is seized the occupier must be given a receipt and the Regulator must return material when no longer needed or after 90 days unless the Magistrates Court orders otherwise (ss55-56). The Magistrates Court must allow the owner to be heard before extending retention and must be satisfied retention is necessary for prosecution (s56).

Record‑keeping and disclosure obligations. The Act’s labelling, documentation and inspection regimes create a practical duty to maintain test results, sample labels and other documentary evidence to support registration and compliance. The Regulator’s power to require production of specified documents (s61(1)(b)) and the existence of penalties for false documentation (s39A, s62A) impose a legal duty to keep accurate documentation and to disclose it when validly required.

Penalties: structure and quantum. The Act expresses monetary penalties as penalty units. The Act provides the mechanism for conversion to dollars by reference to the Commonwealth Crimes Act penalty unit amount (s7(3)). Many supply and information offences in Part 7 carry a penalty of 60 penalty units (ss33-36, 37-38, 62A). The Act also prescribes a maximum one‑year term of imprisonment or 60 penalty units for providing false or misleading information in connection with an application or in compliance with the Act (s39A).

Infringement notices and modified penalties. A WELS inspector with reason to believe a person committed a prescribed offence under Part 7 Division 2, 3 or 4 may give an infringement notice no later than 12 months after the alleged offence (s40(1)). The content of infringement notices is prescribed (s40A(1)), the modified penalty amount is to be the amount prescribed at the time the offence was believed to have been committed (s40A(2)), and the modified penalty cannot exceed 20% of the maximum court fine for that offence (s40A(3)). Payment of a modified penalty within the prescribed time (normally 28 days) prevents proceedings to the same extent as if the person had been convicted and punished by a court (s40D(2)), but is not an admission in other proceedings (s40D(3)). The Regulator can extend the payment period and withdraw notices, with refund if withdrawn after payment (ss40B-40C). Amounts collected as modified penalties are to be dealt with as if they were court imposed penalties (s40E).

Criminal prosecution and court remedies. For offences that are not prescribed for infringement notices, or where prosecution proceeds despite an infringement notice not being paid or withdrawn, the State may prosecute. The specified maximum fines and imprisonment terms apply. The Supreme Court can issue injunctions on application by the Regulator to restrain or require conduct where the Court is satisfied or even by consent (s44). The Court can enforce undertakings and order compensation or disgorgement of financial benefit up to an amount reasonably attributable to the breach (s43(2)(b)).

Inspector powers and coercive measures. WELS inspectors can inspect public areas (s48), enter with consent and exercise search, copy, testing and photographing powers (s49), or enter under warrant and require persons to answer questions and produce documents (s51). Failure to comply with a warrant requirement to answer or produce risks a 60 penalty unit fine (s51(3)). Inspectors can seize evidential material (s55), and the Regulator may examine or test material even if that damages it (s55(3)). The Act provides for receipt and return procedures and for Magistrates Court extension of retention beyond 90 days where necessary for prosecution (ss55-56).

Enforceable undertakings and public remedies. The Regulator may accept written undertakings about compliance with WELS standards or registration conditions (s42). If breached, the Regulator can apply to the Supreme Court to enforce the undertaking; the Court may order compliance, payment up to financial benefit obtained, compensation to others, or other appropriate orders (s43(2)(a)-(d)). The Regulator may publicise convictions (s41), which is a non‑monetary enforcement tool.

False and misleading information. The Act draws a clear line on false or misleading statements. Section 39A criminalises giving false or misleading information in connection with applications or compliance with the Act (subject to a list of exclusions), with penalties up to 60 penalty units or one year’s imprisonment. Division 4 of Part 9 contains additional offences for giving false information or producing false documents to inspectors (s62A), each carrying fines of 60 penalty units. These provisions create high‑stakes compliance incentives for accurate testing, record‑keeping and disclosure.

Administrative review and judicial oversight. The Act provides internal review rights (s71) and, where regulations declare the matter reviewable under the Commonwealth Act, AAT review (s72). Judicial oversight is available through injunctions and enforcement of undertakings in the Supreme Court (ss43-44), and through warrant authorisations and extension orders in the Magistrates Court (ss58-59, 56).

Financial flows and incentives. Monetary sanctions collected by the State are required to be paid into the Consolidated Account, and the Treasurer must pay amounts equal to these to the Commonwealth WELS Account (s65(1)-(2)). The WELS Account’s purpose is to fund the objects of the Act and Regulator functions (s66). The Regulator may also charge fees for services (s67). The redirection of State‑collected fines to the Commonwealth WELS Account aligns enforcement receipts with funding the national scheme but constrains the State’s ability to retain those monies.

Limits and safeguards regarding inspection powers. Several safeguards moderate inspector powers: refusal of consent to entry is not an offence where no warrant exists (s50); officers must announce before entry under warrant unless immediate entry is necessary (s52); a copy of the warrant must be given to the occupier if present (s53); and protectable rights such as privilege against self‑incrimination are preserved (s63). For seized material, occupiers must receive receipts and material must be returned when no longer needed or after 90 days unless extended by the Magistrates Court, which must allow the owner to appear (ss55-56).

Procedural risk points. A number of procedural timelines and caps are important in enforcement: infringement notices must be given within 12 months of the alleged offence (s40(1)); the modified penalty is limited to 20% of the maximum fine (s40A(3)); production/appearance notices must allow at least 14 days (s61(1a), s62(1a)); seizure retention has a firm 90‑day limit subject to Magistrates Court extension (s55(4)-56). Non‑compliance with notice or warrant requirements can itself be an offence and attract penalties (ss51(3), 54, 61(3), 62(3)-(4)).

Interdependence with the Commonwealth WELS Act. The WA Act intentionally imports the Commonwealth WELS Act and its mechanisms. The Act repeatedly refers to the Commonwealth Act for definitions, the appointment and identity of the Regulator, WELS product determinations, and the contents and requirements of WELS standards (see ss7, 18-19 notes, s21 note, s27 note). Many operational details, such as the documentation and fees required for registration, are specified by determinations under the Commonwealth Act (s27(1)). This means that, in practice, the operative content of standards and registration requirements will often be determined at Commonwealth level and then enforced in WA under this State Act.

Concurrent operation with other State laws. The Act declares its provisions are in addition to and do not limit or derogate from other written laws (s10). The Act includes notes referencing the Commonwealth Act’s approach to concurrent operation and to conferral of functions. The Regulator may arrange with State agencies for assistance in performing functions (s24); appointment of State agency employees as WELS inspectors requires State agreement (s45(2)), creating an intergovernmental implementation mechanism.

Limits on double liability. The Act’s notes expressly reference the Commonwealth Act’s avoidance of doubling up of liabilities (s16 note) and note that, in WA, the Sentencing Act 1995 s11(2) operates to prevent double sentencing where a person has been sentenced for an offence under the Commonwealth Act. Those cross‑references reflect an intention to avoid double punishment for substantially the same conduct, subject to the State’s sentencing law.

Regulatory delegations and State consent. The Regulator may delegate functions to State agency officers, but may not do so without the State’s agreement where the delegate would be an officer of the State (s25(2)). Appointment of WELS inspectors from State agencies also requires State agreement (s45(2)). These express consent mechanisms create a formal role for the State in delegations and appointments, even though the Regulator is the Commonwealth official referenced in the Act.

Relationship with general criminal law and procedure. The Act’s offences are criminal offences (Part 7 and other provisions). Section 6 contains a note about the Commonwealth Act’s application of the Commonwealth Criminal Code; the WA Act does not itself import the Criminal Code but notes indicate the Commonwealth Act applies the Commonwealth Criminal Code to offences under that Act. For the WA Act, the Sentencing Act and related State criminal procedure will apply. The Act also incorporates general procedural protections such as privilege against self‑incrimination (s63).

Administrative law review overlay. The Act makes selected decisions reviewable (s69) and provides for internal review by the Regulator (s71). It allows AAT review where the regulations under the Commonwealth Act declare the decision to be a reviewable State‑Territory decision for the Commonwealth Act’s purposes (s72). The AAT Act is applied as a law of the State for such reviews. Thus, affected persons have both an internal administrative avenue and a specialised federal tribunal review pathway, subject to the Commonwealth Act’s regulatory declarations.

Financial flows across jurisdictions. Fines and modified penalties collected in WA are first paid into the Consolidated Account and the Treasurer must pay amounts equal to those to the Commonwealth for crediting to the WELS Account (s65). The WELS Account is then used to further the objects of the WELS scheme and to fund Regulator functions (s66). This creates an intergovernmental financial linkage: the State collects monies but must forward equivalent amounts to the Commonwealth WELS Account.

Intersection with supplier and consumer law. The Act interacts with advertising and consumer disclosure by prohibiting information inconsistent with WELS standards and by covering labelling on products and packaging and advertising (s20(2), ss37-39). Other State or Commonwealth consumer protection laws operate in parallel; s10 states the Act does not derogate from other written laws. Therefore, suppliers must comply both with WELS standards and with general consumer law obligations.

Interaction with evidence and search warrant law. The Act authorises warrants issued by magistrates for entry and seizure in WELS premises (ss58-59). Those warrant procedures overlay ordinary State search and seizure law and criminal procedure. The Magistrates Court has a role in supervising retention of seized material beyond 90 days (s56). These interactions rely on State court infrastructure and criminal procedural norms.

Limitations on Crown prosecution. The Act binds the Crown but explicitly states that it does not render the Crown liable to prosecution (s4(2)). That limits application of criminal sanctions to government actors, although the Crown remains bound in other respects.

Differences from Commonwealth Act and local adaptations. The WA Act contains express differences and additional provisions relative to the Commonwealth Act: sections and notes highlight where the State Act differs or where additional provisions are included (for example s5A, s5B, s7, s26-27, s40, s45-46, s46A, s62A, s63, s65). Those differences create a hybrid regime where national standards are enforced locally but local enforcement mechanisms and procedural rules can vary.

Legislative milestones. The compilation table at the end of the Act records the original enactment and subsequent amendments. The Water Efficiency Labelling and Standards Act 2006 (WA) received assent on 20 December 2006, with sections 1 and 2 commencing on that date and the remainder commencing on 29 April 2009 (compilation table).

Subsequent amendments recorded in the compilation table include:

Statutes (Repeals and Minor Amendments) Act 2009 (No. 46 of 2009), section 17, assented 3 December 2009, commencing 4 December 2009. The text marks section 65 as amended by No. 46 of 2009 s.17 (see bracketed note under s65).
Statutes (Repeals and Minor Amendments) Act 2014 (No. 17 of 2014), section 10, assented 2 July 2014, commencing 6 September 2014. The table notes s40A was amended by No. 17 of 2014 s.10.

Sections added, removed or noted as differing. The Act includes several sections or notes that either do not appear in the Commonwealth Act or differ from the Commonwealth Act. The text flags these in‑line in numerous places. Examples:

Sections not appearing in the Commonwealth Act: s5A (Numbering) and s5B (Notes) are flagged as not appearing in the Commonwealth Act; s40A-40F (various infringement notice provisions) are noted as not appearing in the Commonwealth Act; s46A (Offences in relation to WELS inspectors) is not in the Commonwealth Act; s62A (False or misleading information or documents to inspectors) is not in the Commonwealth Act; s39A (False or misleading information or document in connection with an application) is noted as not appearing in the Commonwealth Act.
Sections noted as differing from the Commonwealth Act: s7 (definitions) is flagged as different from Commonwealth Act s7; s26 and s27 (application and documentation for registration) are flagged as differing from the Commonwealth Act; s40 (infringement notices) and s45-46 (appointment and identity cards of inspectors) are noted as differing; s63 (privilege against self‑incrimination) is flagged as differing; s65 (credits to the WELS Account) is flagged as differing.

The 2009 and 2014 amendments recorded in the compilation table likely correspond to statutory housekeeping and the insertion or amendment of the infringement notice scheme and financing provisions recorded in the text; the Act’s notes identify the specific sections affected by those amendment Acts (for example s65 change noted).

No substantive amendment trace beyond compilation. The text supplied contains the current consolidated wording and the compilation table records the two amendment statutes. It does not contain a detailed legislative history beyond those entries and the textual notes that mark where provisions differ or do not appear in the Commonwealth Act. The Act also contains notes that several sections have been modified for consistency with State law and practice (see note under s5A), implying some local tailoring during enactment.

How to interpret amendment notes. The Act’s notes are explicit: they identify where the Commonwealth Act contains certain provisions and where the WA Act has removed, omitted or modified content to maintain consistent numbering or to adapt to State practice (s5A notes). Any practitioner needing to trace precise changes should consult the amendment Acts referenced in the compilation table and the WA Government Gazette notices cited for commencement dates (compilation table and commencement notes within the Act).

Future review mechanism. The Act requires that an independent review of the WELS scheme is to be undertaken as soon as possible after the fifth anniversary of commencement of the relevant Commonwealth section, and requires the Minister to lay the report before Parliament within 15 sitting days of receipt (s76 and note). That mechanism creates a structured opportunity for scheme‑level amendment informed by an independent review, though the timing and scope are driven by the Commonwealth Act and the linked national process (see s76 note).

No cases or judicial decisions are recorded within the text provided. The Act itself anticipates litigation channels and administrative review but does not reference case law. The following points about legal process are set out in the Act:

Reviewable decisions and review mechanisms are established: refusal to register and cancellation/suspension of registration are reviewable decisions (s69), internal review must be offered (s71), and AAT review is available where regulations under the Commonwealth Act declare the decision reviewable (s72).
The Supreme Court is the forum for injunctions and enforcement of undertakings (ss43-44), and the Magistrates Court is engaged in warrant issue and in orders to permit retention of seized evidential material beyond 90 days (ss58-59, 56).
The Act contemplates exercise of search and seizure and coercive information powers, with prescribed offences for non‑compliance and for false or misleading information (ss51(3), 54, 62A).

Because no litigation history is included in the statutory text, there are no Court names, reported decisions or judicial interpretations to cite or analyse in this deep dive. Practitioners should expect litigation to arise in three predictable contexts: (1) judicial review or merits challenges to registration refusals or cancellation decisions in the AAT or courts; (2) prosecutions for offences under Part 7 and related enforcement actions; and (3) civil proceedings for injunctions or enforcement of undertakings under ss43-44. The Act provides the procedural map for such litigation (notably ss69-72 and ss43-44) but the source supplied contains no examples of these proceedings having been litigated or decided.

For practitioners preparing to litigate or defend actions under the Act: the statutory structure emphasises procedural compliance (documentary requirements, notices, timelines, and identity card obligations) and creates high enforcement penalties for false statements and non‑production, so factual and procedural issues will be central in any dispute. The Act also reserves certain review pathways to the AAT only where regulations under the Commonwealth Act declare the decision reviewable (s72(1)), so the scope for tribunal merits review depends on the regulatory instruments under the Commonwealth Act.

Deemed refusal after three months. If an application for registration is made and, at the end of three months from application, no registration notice has been published in the Commonwealth Gazette and the applicant has not been notified that the Regulator has refused registration, the Regulator is taken to have refused to register (s28(3)). This deemed refusal can have material commercial consequences; applicants must monitor the three‑month period and be prepared promptly to seek internal review (s71) or AAT review (if available under the relevant regulations).

Penalty unit conversion and variability. Penalties are expressed in penalty units; the Act specifies conversion to dollars via the Crimes Act penalty unit formula (s7(3)). The dollar amount of a penalty unit can change over time under Commonwealth law, affecting the monetary exposure for offences in WA. Practitioners should not assume fixed dollar amounts without checking the current penalty unit value under the Crimes Act.

Crown immunity from prosecution. The Act binds the Crown (s4(1)) but expressly provides that nothing renders the Crown liable to be prosecuted for an offence (s4(2)). This is a practical gotcha for parties expecting the Commonwealth or State to be subject to the same criminal sanctions as private actors; the Crown remains immune to prosecution under this Act.

Short time limit for infringement notices. A WELS inspector may give an infringement notice no more than 12 months after the alleged offence is believed to have been committed (s40(1)). This statutory time limit is shorter than typical limitation periods for criminal prosecutions and is an important restriction on the enforcement window for prescribed offences.

Modified penalties capped at 20% of maximum. The modified penalty in an infringement notice cannot exceed 20% of the maximum penalty a court could impose for that offence (s40A(3)). For serious offences with high penalty unit maxima, a modified penalty may be relatively modest; conversely, for offences with lower maxima, the modified penalty may represent a substantial proportion of the total exposure. The Act requires that the amount specified be that which was the prescribed modified penalty at the time the alleged offence was believed to have been committed (s40A(2)), which can create retrospective complexity if modified penalty schedules change.

Obligations to produce documents and appear with short statutory minimums. The Regulator may require production of information or documents and require persons to appear before inspectors; the notice periods must be at least 14 days (s61(1a), s62(1a)). Non‑compliance is a criminal offence carrying fines up to 60 penalty units (ss61(3), 62(3)-(4)). Businesses should treat such notices seriously and ensure records and competent witnesses are available within the statutory minimum.

False or misleading conduct carries severe penalties, including imprisonment. Section 39A criminalises giving false or misleading information in connection with an application or in compliance with the Act, with penalties up to 60 penalty units or imprisonment for one year. Section 62A criminalises false information given to inspectors with penalties of 60 penalty units. Those offences are not merely civil fines; they can attract custodial sentences and therefore require careful internal controls and legal advice.

Seizure, testing and damage risk. The Regulator may examine or test seized evidential material even if that might result in damage or destruction of the material (s55(3)). Section 73 provides for compensation if damage to electronic equipment or data occurs because of insufficient care in selecting or operating equipment by the Regulator or its agents; the Regulator must pay reasonable compensation or the owner may go to the Supreme Court (s73). However the existence of compensation does not remove the practical and commercial disruption caused by loss or damage to business records or stock.

Return and retention constraints. Seized material must be returned when no longer needed or after 90 days (s55(4)); to retain material beyond 90 days the Regulator must obtain a Magistrates Court order and the court must be satisfied retention is necessary for prosecution (s56). Businesses should be prepared to act promptly if evidential material is seized and to raise objections before the Magistrates Court if retention threatens operational continuity.

Identity card and access conditions. WELS inspectors must carry identity cards and produce them when required by an occupier who is being given an infringement notice (s40F). Inspectors are not entitled to exercise powers in relation to premises if, after being required to produce their identity card by the occupier, they fail to do so (s46(5)). Occupiers may lawfully refuse entry when no warrant exists (s50). Businesses and occupiers should be trained on these points to avoid confrontations and ensure lawful cooperation.

Registration transition and replacement WELS standards. If a product is registered under one WELS standard and that standard is replaced, the product remains registered under the first standard until it is either registered under the new standard or until one year from the replacement day expires (s30(2)). The Commonwealth Minister can extend this transitional period, and the WA Act mirrors that extension (s30(3)). Producers must watch standard replacement dates and manage re‑registration risk to avoid unregistered sales post‑transition.

Data and electronic damage compensation complexity. Section 73 provides that if damage to electronic equipment or data occurs because of inadequate care by the operator engaged by the Regulator, compensation must be paid or court proceedings may be brought. However the Act looks to whether the occupier provided appropriate warnings or guidance on equipment operation when assessing compensation (s73(4)), a fact‑sensitive inquiry that can complicate recovery.

Financial flow surprise. Monetary penalties collected in WA are treated as State receipts but the Treasurer must pay amounts equal to those into the Commonwealth WELS Account (s65). This is a legal requirement that will surprise those who assume penalties collected locally remain with the State for local enforcement or remediation programmes.

Privilege preserved but limited. The privilege against self‑incrimination is generally preserved (s63), and refusing to answer a question on that ground does not attract the obstruction offence in s46A(1). However, there are many coercive powers to compel production and answers (e.g., warrants, s51(2)(b)), and the privilege does not immunise persons from having documents seized under warrant. Legal advice should be obtained promptly upon the issue of any compulsory notices.

Differences from the Commonwealth Act require local attention. Several sections in the WA Act are expressly flagged as differing from or not appearing in the Commonwealth Act (see notes to specific sections). Practitioners should not assume full textual identity between Commonwealth and WA provisions and must check both instruments, relevant determinations, and any State‑specific regulation or practice.

Step 1 , Determine whether the product is a WELS product and the applicable WELS standard. Use the Commonwealth Minister’s determinations and WELS standards as the source of which products are WELS products and the content of applicable standards (notes to s18-19 and s27). For unregistered products, the applicable WELS standard is the most recent standard for that kind of product (s32(2)). Document the chain of authority showing which determination or WELS standard applies to a particular product line.

Step 2 , Decide whether registration is required for the intended supply. Check the applicable WELS standard to see if it requires registration for the particular supply scenario. If registration is required, the manufacturer (or the person lawfully treated as the manufacturer under Commonwealth Act tests) must apply for registration (s26(1)-(2); s33). If the WELS standard permits but does not require registration, consider the regulatory consequences, because voluntarily registered products may still be subject to labelling obligations (s27 note; Commonwealth Act s19(4) as referenced).

Step 3 , Prepare and lodge a complete registration application. The application must be in the manner and form determined by the Commonwealth Minister and must be accompanied by documentation (including test results and sample labels) and any registration fee specified in that determination (s27(1)). Given the strict criminal offences for false or misleading statements in applications (s39A), ensure test results and sample labels are accurate, traceable to accredited labs where possible, and are retained in original form.

Step 4 , Ensure products meet minimum water efficiency and general performance requirements. If the applicable WELS standard requires compliance with minimum water efficiency or general performance requirements as a condition of registration or supply, ensure testing, quality control and production processes meet and maintain those minima (ss35-36). Maintain test records that can be produced to inspectors and support any claims made on labels or in advertising.

Step 5 , Comply with labelling and information requirements. Design labels, packaging inserts, technical documents and advertising to meet the WELS standard’s requirements. WELS labelling requirements may prescribe label content, placement, format and related documentation and advertising requirements (s20(1)-(2)). Because ss37-39 make it an offence to use WELS standards or related information inconsistently or to convey information inconsistent with the applicable standard, cross‑check all consumer‑facing material against the current WELS standard.

Step 6 , Maintain records, test certificates and sample labels. Retain test certificates, quality control records, labelling proofs and versions of advertising and documentation. The Regulator and WELS inspectors can require production of specified documents with not less than 14 days’ notice (s61(1a), s62(1a)). Given the penalties for non‑production and for giving false or misleading documents or information (ss61(3), 62A, 39A), create document retention and authentication protocols that enable timely production and verification.

Step 7 , Manage inspector interactions and premises access. Train staff on inspector identity card checks and rights to require production of the card (ss46, 40F). Understand the difference between entry with consent and entry under warrant: consent can be withdrawn at any time (s49(2)) and refusal without a warrant is not an offence (s50). If an inspector presents a warrant, ensure the warrant is copied to the occupier if present and demand to see the copy (s53). If material is seized, obtain receipts and seek legal advice promptly about retention periods and Magistrates Court procedures for contesting retention or seeking return (ss55-56).

Step 8 , Respond to Regulator notices within statutory timeframes. Production and appearance notices must allow not less than 14 days (ss61(1a), 62(1a)). Ensure internal procedures to identify relevant custodians, compile requested documents, and prepare witnesses to attend within those deadlines. Seek legal advice immediately upon receiving any compulsory notice to manage privilege issues, prepare accurate responses, and to avoid s62A and s39A offences.

Step 9 , Use enforceable undertakings where appropriate. If compliance issues emerge, consider offering a written undertaking under s42 to the Regulator to resolve the matter without prosecution. Bear in mind the undertaking can be enforced by the Supreme Court and breaching it exposes the business to orders for compliance, disgorgement of financial benefit and compensation (s43).

Step 10 , Monitor standards, re‑registration and transitional periods. WELS standards can be replaced; registered products remain registered under the old standard for up to one year after replacement unless re‑registered sooner (s30(2)). The Commonwealth Minister can extend this transitional period (s30(3)). Maintain an internal regulatory monitoring function to detect standard changes and commence re‑testing or re‑registration processes early.

Step 11 , Budget for fees and potential modified penalties. Registration fees and other fees are set by the Commonwealth Minister’s determination for registration applications (s27(1)); the Regulator may also charge fees for services (s67). Understand that modified penalties under infringement notices cannot exceed 20% of the maximum court penalty (s40A(3)); plan compliance budgets to cover testing, labelling and possible enforcement exposure.

Step 12 , Prepare for advertising compliance and consumer claims. Advertising and documents used in supply are explicitly within the labelling/information regime (s20(2), s39(1)). Avoid making claims inconsistent with the WELS standard; inaccurate claims expose suppliers to offences under ss37-38 and possible consumer law action under other statutes given s10’s non‑derogation clause.

Step 13 , Use internal review and tribunal avenues where appropriate. If registration is refused or registration is cancelled or suspended, the affected person has internal review rights (s71) and possible AAT review where the Commonwealth regulations declare the decision reviewable (s72). Prepare administrative law dossiers for internal review and, if necessary, AAT proceedings.

Step 14 , Insure, document and mitigate risks of data/equipment damage. If inspectors operate electronic equipment that could be damaged, the Regulator must compensate where damage arises from insufficient care by the operator or selection of operator (s73). Businesses should keep clear warnings and guidance on equipment operation available, maintain backups of data, and consider insurance for potential damage or loss arising from inspections and testing.

Step 15 , Seek immediate legal advice when enforcement action occurs. Given the criminal penalties, seizure powers, and the potential for imprisonment for false or misleading statements in certain contexts (s39A), obtain specialist legal advice promptly if faced with enforcement, inspection, seizure, or compulsory notices. Ensure counsel can advise on privilege, production strategies and possible remedial undertakings.

Practically, compliance requires a functioning regulatory compliance programme combining product testing and certification, labelling copy control, document retention and disclosure processes, staff training on inspector interactions, a watch for standard updates, and access to legal advice to handle notices or enforcement actions. The Act’s cross‑jurisdictional architecture means that many substantive decisions and technical requirements will be dictated by Commonwealth determinations and WELS standards, so integrate Commonwealth published determinations and the Regulator’s guidance into the compliance programme.

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