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TASMANIA
__________
WATER EFFICIENCY LABELLING AND
STANDARDS BILL 2005
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Objects of Act
4. Act to bind the Crown
5. External Territories
5A. Numbering
PART 2 INTERPRETATION
6. Application of the Criminal Code
7. Interpretation
7A. Increased maximum fine for body corporate
PART 3 NATIONAL WELS SCHEME
8. WELS scheme to be a national cooperative scheme
9. Application of this Act
10. Relationship to other State laws
11. State and Territory laws may operate concurrently
12. Meaning of "corresponding law"
13. Commonwealth consent to conferral of functions, &c., on the
Regulator or inspectors by corresponding State-Territory laws
[Bill 11]-I
14. How duty is imposed by corresponding State-Territory laws
15. When a corresponding State-Territory law imposes a duty
16. No doubling-up of liabilities
17. Review of decisions under this Act
PART 4 WELS PRODUCTS AND WELS STANDARDS
18. WELS products
19. WELS standards
20. Meaning of "WELS-labelled"
PART 5 THE WELS REGULATOR
21. The Regulator
22. Functions of the Regulator
23. Powers of the Regulator
24. Arrangements with other agencies
25. Delegation
PART 6 REGISTRATION OF WELS PRODUCTS
26. Applying for registration
27. Documentation, &c., to be provided with application for
registration
28. Registration of products
29. Grounds for refusing to register
30. Period of registration
31. Cancelling or suspending registration
PART 7 OFFENCES RELATING TO THE SUPPLY OF WELS
PRODUCTS
Division 1 Applicable WELS standards
32. Meaning of "applicable WELS standard"
Division 2 Registration and labelling
33. Registration requirement
34. Labelling registered products
2
Division 3 Minimum efficiency and performance requirements
35. Minimum water efficiency--products required to be registered
36. Minimum general performance--products required to be
registered
Division 4 Misuse of WELS standards, &c.
37. Misuse of WELS standards and information
38. Information inconsistent with WELS standards
39. Using information in the supply of products
Division 5 Extensions of criminal responsibility
39A. Attempts
39B. False or misleading information or document
PART 8 OTHER ENFORCEMENT
Division 1 Infringement notices
40. Power to serve a notice
40A. Form of notice
40B. Acceptance of notices
40C. Extension of acceptance periods
40D. Payment
40E. Effect of acceptance
40F. Withdrawal of infringement notices
40G. Certain evidence not admissible
40H. Penalties to be paid into Consolidated Fund
Division 2 Publicising offences
41. Regulator may publicise offences
Division 3 Enforceable undertakings
42. Acceptance of undertakings
43. Enforcement of undertakings
Division 4 Injunctions
44. Injunctions
3
PART 9 WELS INSPECTORS
Division 1 Appointment of WELS inspectors
45. Regulator may appoint WELS inspectors
46. Identity cards
46A. Offences in relation to WELS inspectors
Division 2 Powers of WELS inspectors
47. Purposes for which powers can be used
48. Inspection powers public areas of WELS business premises
49. Inspection powers with consent
50. Refusing consent is not an offence
51. Inspection powers with warrant
52. Announcement before entry under warrant
53. Copy of warrant to be given to occupier
54. Occupier must provide inspector with facilities and assistance
55. Seizing or securing evidential material
56. Holding evidential material for more than 90 days
57. Returning evidential material
Division 3 Applying for warrants to enter WELS premises
58. Ordinary warrants
59. Warrants by telephone, fax, &c.
Division 4 Giving WELS information to WELS inspectors
60. Meaning of "person who has WELS information"
61. Regulator may require a person to provide information
62. Regulator may require a person to appear before a WELS
inspector
62A. False or misleading information or documents
Division 5 Privilege against self-incrimination
63. Privilege against self-incrimination not affected
PART 10 MONEY
Division 1 The WELS Account
64. WELS Account
4
65. Credits to the WELS Account
66. Purpose of the WELS Account
Division 2 Charging fees, &c.
67. Regulator may charge for services
68. Recovery of amounts
PART 11 REVIEW OF DECISIONS
69. Meaning of "reviewable decision" and "affected person"
70. Notification of decisions and review rights
71. Internal review
72. Review of decisions by Administrative Appeals Tribunal
PART 12 MISCELLANEOUS
73. Compensation for damage to electronic equipment
74. Compensation for acquisition of property
75. Annual report
76. Review of operation of WELS scheme
77. Regulations
78. Administration of Act
5
6
WATER EFFICIENCY LABELLING AND
STANDARDS BILL 2005
(Brought in by the Minister for Primary Industries and Water,
the Honourable Steven Kons)
A BILL FOR
An Act to provide for water efficiency labelling and the
making of water efficiency standards and for other
purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Water Efficiency
Labelling and Standards Act 2005.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
Note This section differs from section 2 of the Commonwealth Act.
3. Objects of Act
The objects of this Act are as follows:
[Bill 11] 7
s. 4 No. Water Efficiency Labelling and Standards 2005
(a) to conserve water supplies by reducing
water consumption;
(b) to provide information for purchasers of
water-use and water-saving products;
(c) to promote the adoption of efficient and
effective water-use and water-saving
technologies.
4. Act to bind the Crown
(1) This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
(2) Nothing in this Act renders the Crown liable to
be prosecuted for an offence.
Note This section differs from section 4 of the Commonwealth Act.
5. External Territories
Note The Commonwealth Act includes a provision extending that
Act to every external Territory other than Norfolk Island.
5A. Numbering
(1) 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
8
2005 Water Efficiency Labelling and Standards No. s. 5A
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.
(2) A provision number and heading referred to in
subsection (1)(a) form part of this Act.
Note 1 A note appears under each heading of a kind referred to in
subsection (1)(a) describing the omitted section of the
Commonwealth Act.
Note 2 A note appears under each section of a kind referred to in
subsection (1)(b) highlighting the non-appearance of an
equivalent section in the Commonwealth Act.
Note 3 This section does not appear in the Commonwealth Act.
9
s. 6 No. Water Efficiency Labelling and Standards 2005
PART 2 INTERPRETATION
6. Application of the Criminal Code
Note The Commonwealth Act includes a provision applying
Chapter 2 of the Criminal Code of the Commonwealth to
offences against that Act.
7. Interpretation
(1) In this Act
"Administrative Appeals Tribunal" means
the Administrative Appeals Tribunal
established by the Administrative
Appeals Tribunal Act 1975 of the
Commonwealth;
"affected person" has the meaning given by
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
10
2005 Water Efficiency Labelling and Standards No. s. 7
(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 by section 32;
"Commonwealth Act" means the Water
Efficiency Labelling and Standards Act
2004 of the Commonwealth;
"Commonwealth Minister" has the same
meaning as in the Commonwealth Act;
"corresponding law" has the meaning given
by 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;
"magistrate" means a magistrate within the
meaning of the Magistrates Court Act
1987;
11
s. 7 No. Water Efficiency Labelling and Standards 2005
"occupier", in relation to premises, includes a
person who apparently represents the
occupier of the premises;
"offence against this Act" includes an
offence against the regulations;
"penalty unit" has the same meaning as it has
for the purposes of the laws of the
Commonwealth;
Note 1 Penalty unit is defined for the purposes of laws of the
Commonwealth in section 4AA of the Crimes Act 1914
of the Commonwealth.
"person who has WELS information" has
the meaning given by section 60;
"registered" means registered under a WELS
standard;
"Regulator" means the Regulator established
by section 21 of the Commonwealth Act;
"reviewable decision" has the meaning given
by 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;
12
2005 Water Efficiency Labelling and Standards No. s. 7
"water-use product" means a device,
appliance or fitting through which, or
into which, water flows as part of its
normal operation;
"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 by
section 20(1);
"WELS premises" means premises used for,
or in connection with, the supply of one
or more WELS products;
"WELS product" means a WELS product
within the meaning of the
Commonwealth Act;
"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 section 18(1) of the
Commonwealth Act.
(2) A reference in this Act to the Commonwealth
Act or a corresponding State-Territory law,
within the meaning of the Commonwealth Act,
is a reference to that Act or law
13
s. 7A No. Water Efficiency Labelling and Standards 2005
(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.
Note This section differs from section 7 of the Commonwealth Act.
7A. Increased maximum fine for body corporate
(1) If a body corporate is found guilty of an offence
against this Act and the court has power to fine
the body corporate, it may, unless the contrary
intention appears, impose on the body corporate
a fine not greater than 5 times the amount of the
maximum fine that could be imposed by the
court on a natural person found guilty of the
same offence committed at the same time.
(2) This section has effect despite the prescription of
a maximum fine for the offence applicable to all
offenders.
Note This section does not appear in the Commonwealth Act but a
provision to the same effect is included in section 4B of the
Crimes Act 1914 of the Commonwealth.
14
2005 Water Efficiency Labelling and Standards No. s. 8
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 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 law of the State.
Note This section differs from section 10 of the Commonwealth
Act.
11. State and Territory laws may operate concurrently
Note The Commonwealth Act includes a provision allowing State
and Territory laws to operate concurrently with that Act.
15
s. 12 No. Water Efficiency Labelling and Standards 2005
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.
Note 1 This section differs from section 12 of the Commonwealth
Act.
Note 2 See section 7(2) for construction of references in this Act to
enactments.
13. Commonwealth consent to conferral of functions,
&c., on the Regulator or inspectors by
corresponding State-Territory laws
Note Section 13 of the Commonwealth Act 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 State-
Territory laws
Note Section 14 of the Commonwealth Act deals with the imposing
of duties on the Regulator or WELS inspectors by
corresponding State-Territory laws.
16
2005 Water Efficiency Labelling and Standards No. s. 15
15. When a corresponding State-Territory law imposes
a duty
Note Section 15 of the Commonwealth Act 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
(1) If
(a) an act or omission is an offence against
this Act and is also an offence against the
Commonwealth Act; and
(b) the offender has been punished for the
offence under the Commonwealth Act
the offender is not liable to be punished for the
offence under this Act.
(2) If a person has paid, or been ordered to pay, a
pecuniary penalty under the Commonwealth Act,
the person is not liable to a pecuniary penalty
under this Act in respect of the same conduct.
Note This section differs from section 16 of the Commonwealth
Act.
17. Review of decisions under this Act
(1) Application may be made to the Administrative
Appeals Tribunal for review of a reviewable
decision if the decision is declared by the
regulations made under the Commonwealth Act
to be a reviewable State-Territory decision for
17
s. 17 No. Water Efficiency Labelling and Standards 2005
the purposes of section 17 of the Commonwealth
Act.
(2) The Administrative Appeals Tribunal Act 1975
of the Commonwealth (excluding Part IVA) and
the regulations in force for the time being under
that Act apply as laws of Tasmania in relation to
reviewable decisions.
(3) For the purposes of this section, a reference in a
provision of the Administrative Appeals Tribunal
Act 1975 of the Commonwealth (as that
provision applies as a law of Tasmania) 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.
Note This section differs from section 17 of the Commonwealth
Act.
18
2005 Water Efficiency Labelling and Standards No. s. 18
PART 4 WELS PRODUCTS AND WELS STANDARDS
18. WELS products
Note Section 18 of the Commonwealth Act enables the
Commonwealth Minister to determine that water-use or water-
saving products of a specified kind are WELS products and to
set out the WELS standard for the products.
19. WELS standards
Note Section 19 of the Commonwealth Act 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
products.
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;
19
s. 20 No. Water Efficiency Labelling and Standards 2005
(c) advertising the product.
20
2005 Water Efficiency Labelling and Standards No. s. 21
PART 5 THE WELS REGULATOR
21. The Regulator
Note Section 21 of the Commonwealth Act appoints as the
Regulator the Secretary of the Department of State of the
Commonwealth that deals with the matters to which the
Commonwealth Act relates.
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;
(c) to provide advice in relation to
determining that water-use or water-
saving products are WELS 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; and
21
s. 23 No. Water Efficiency Labelling and Standards 2005
(ii) the Secretary of the Department
of State of Tasmania that deals
with the matters to which this Act
relates; 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.
Note This section differs from section 22 of the Commonwealth
Act.
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.
22
2005 Water Efficiency Labelling and Standards No. s. 25
Note This section differs from section 24 of the Commonwealth
Act.
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;
(c) an officer or employee of an agency of
another State or a Territory.
(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.
(3) A delegate of the Regulator is, in the exercise of
the delegate's delegated powers and functions,
subject to the Regulator's directions.
Note This section differs from section 25 of the Commonwealth
Act.
23
s. 26 No. Water Efficiency Labelling and Standards 2005
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.
Note 1 A WELS standard may require products to be registered for
the purposes of specified supplies: see section 19(2) of the
Commonwealth Act. 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 be, WELS-
labelling requirements may apply: see section 19(4) of the
Commonwealth Act. It is an offence to supply a product that
is not WELS-labelled if WELS-labelling requirements apply:
see section 34.
Note 2 Section 39B 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 sections 26(1) and 31(3)(b) of
the Commonwealth Act.
Note This section differs from section 26 of the Commonwealth
Act.
24
2005 Water Efficiency Labelling and Standards No. s. 27
27. Documentation, &c., 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 section 27(1) of the
Commonwealth Act, 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 This section differs from section 27 of the Commonwealth
Act.
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.
25
s. 29 No. Water Efficiency Labelling and Standards 2005
(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
section 27(1) of the Commonwealth Act;
or
(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.
26
2005 Water Efficiency Labelling and Standards No. s. 30
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:
(c) the product is registered under a WELS
standard other than the first WELS
standard;
(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 section 30(2)(d)
of the Commonwealth Act is extended by a
further specified period, the period of one year
mentioned in subsection (2)(d) of this section is
27
s. 31 No. Water Efficiency Labelling and Standards 2005
extended for the same purposes by the same
further period.
Note This section differs from section 30 of the Commonwealth
Act.
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
section 18(1) of the Commonwealth Act
28
2005 Water Efficiency Labelling and Standards No. s. 31
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.
29
s. 32 No. Water Efficiency Labelling and Standards 2005
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 section 18(1) of the
Commonwealth Act 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; and
(b) the applicable WELS standard requires
the product to be registered for the
purposes of the supply; and
(c) the product is not registered.
Penalty: Fine not exceeding 60 penalty units.
30
2005 Water Efficiency Labelling and Standards No. s. 34
34. Labelling registered products
A person commits an offence if
(a) the person supplies a WELS product; and
(b) the product is registered; and
(c) the applicable WELS standard requires
registered products to be WELS-labelled
for the purposes of the supply; and
(d) the product is not WELS-labelled.
Penalty: Fine not exceeding 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; and
(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
(c) the product does not comply with those
minimum water efficiency requirements.
Penalty: Fine not exceeding 60 penalty units.
31
s. 36 No. Water Efficiency Labelling and Standards 2005
36. Minimum general performance--products required
to be registered
A person commits an offence if
(a) the person supplies a WELS product; and
(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
(c) the product does not comply with those
minimum general performance
requirements.
Penalty: Fine not exceeding 60 penalty units.
Division 4 Misuse of WELS standards, &c.
37. Misuse of WELS standards and information
A person commits an offence if the person
(a) supplies a WELS product; and
(b) uses a WELS standard, or information
included in a WELS standard, for, or in
relation to, the supply of the product; and
(c) uses the standard, or information, in a
manner that is inconsistent with the
standard.
Penalty: Fine not exceeding 60 penalty units.
32
2005 Water Efficiency Labelling and Standards No. s. 38
Note Section 39 sets out circumstances in which information is
used for, or in relation to, the supply of a product.
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: Fine not exceeding 60 penalty units.
Note Section 39 sets out circumstances in which information is
used for, or in relation to, the supply of a product.
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; or
(b) the packaging in which the product is
supplied; or
(c) any document or other material used for,
or provided in connection with, the
supply of the product; or
(d) any advertising that relates to the
product.
33
s. 39A No. Water Efficiency Labelling and Standards 2005
(2) Subsection (1) does not limit the general
meaning of words used in sections 37 and 38.
Division 5 Extensions of criminal responsibility
39A. Attempts
(1) A person who attempts to commit an offence
against Division 2, 3 or 4 (the relevant offence)
is guilty of the offence of attempting to commit
that offence and is liable to a fine not exceeding
60% of the maximum fine specified by that
Division for the relevant offence.
(2) A person is not guilty of attempting to commit
an offence against Division 2, 3 or 4 unless the
conduct of the person is
(a) more than merely preparatory to the
commission of the offence; and
(b) immediately and not remotely connected
with the commission of the offence.
(3) For a person to be guilty of attempting to
commit an offence against Division 2, 3 or 4, the
person must
(a) intend that the offence the subject of the
attempt be committed; and
(b) intend or believe that any fact or
circumstance the existence of which is an
element of the offence will exist at the
time the offence is to take place.
(4) A person may be guilty of attempting to commit
an offence against Division 2, 3 or 4 despite the
existence of facts of which the person is unaware
34
2005 Water Efficiency Labelling and Standards No. s. 39B
which make the commission of the offence
attempted impossible.
Note This section does not appear in the Commonwealth Act but a
provision to the same effect (except as to penalty) is included
in section 11.1 of the Criminal Code of the Commonwealth.
39B. 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 Division 4 of
Part 9)
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.
35
s. 39B No. Water Efficiency Labelling and Standards 2005
Penalty: Imprisonment for a term not exceeding
one year or a fine not exceeding 60
penalty units.
Note 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.
36
2005 Water Efficiency Labelling and Standards No. s. 40
PART 8 OTHER ENFORCEMENT
Division 1 Infringement notices
40. Power to serve a notice
(1) A WELS inspector may serve an infringement
notice on any person that he or she has reason to
believe has committed an offence against
Division 2 or 3 of Part 7.
(2) The infringement penalty for an alleged offence
is one-fifth of the maximum fine that a court
could impose as a penalty for that offence.
(3) An infringement notice may be served on a
person
(a) by delivering it personally to the person;
or
(b) by leaving it at the last known place of
residence or business of the person with
a person, apparently over the age of 18
years, who appears to live or work at the
place; or
(c) by sending it by post addressed to the
person at the person's last known place
of residence or business.
Note This section differs from section 40 of the Commonwealth
Act.
40A. Form of notice
(1) An infringement notice must be in a form
approved by the Regulator and must set out
37
s. 40B No. Water Efficiency Labelling and Standards 2005
(a) the date of the notice; and
(b) the provision of this Act that creates the
offence; and
(c) the name and address of the person
alleged to have committed the offence;
and
(d) the date, time and place of the alleged
offence; and
(e) the nature and a brief description of the
alleged offence; and
(f) the infringement penalty for the alleged
offence; and
(g) the manner in which, and the place at
which, the infringement penalty may be
paid; and
(h) any other prescribed particulars.
(2) An infringement notice is to state that the person
on whom it is served may disregard the
infringement notice but that, on so doing, the
person may be prosecuted for the alleged offence
to which it relates.
Note This section does not appear in the Commonwealth Act.
40B. Acceptance of notices
A person may accept an infringement notice by
either of the following within 21 days after being
served with the infringement notice:
38
2005 Water Efficiency Labelling and Standards No. s. 40C
(a) paying the amount of the infringement
penalty at the place specified in the
infringement notice;
(b) lodging, at that place, a written
undertaking to pay that amount.
Note This section does not appear in the Commonwealth Act.
40C. Extension of acceptance periods
If an infringement notice is not accepted before
the period referred to in section 40B expires, a
clerk of petty sessions may allow a further
period of 14 days commencing on that expiry for
the acceptance of the infringement notice.
Note This section does not appear in the Commonwealth Act.
40D. Payment
(1) A person who undertakes under section 40B(b)
to pay the amount payable under an infringement
notice may make representations to a clerk of
petty sessions in relation to the person's ability
to pay the amount.
(2) The clerk of petty sessions is to take the person's
representations into account before determining
the period within which the amount is to be paid.
(3) The clerk of petty sessions may determine the
period, not exceeding 60 days from the day on
which the notice was served, within which the
amount is to be paid.
(4) If a person fails to pay any amount in accordance
with an undertaking, the same proceedings may
39
s. 40E No. Water Efficiency Labelling and Standards 2005
be taken against the person in respect of the
amount remaining outstanding as if it were a
penalty imposed on the person on summary
conviction.
Note This section does not appear in the Commonwealth Act.
40E. Effect of acceptance
(1) The acceptance of an infringement notice is not
an admission of liability in any civil
proceedings.
(2) Proceedings against a person for an offence to
which an infringement notice that has not been
withdrawn relates are not to be brought if the
person accepts the infringement notice, or
(a) if the person has been allowed an
additional period under section 40C,
within 42 days after the infringement
notice is served; or
(b) if the person has not been allowed an
additional period under section 40C,
within 28 days after the infringement
notice is served.
Note This section does not appear in the Commonwealth Act.
40F. Withdrawal of infringement notices
(1) A WELS inspector may withdraw an
infringement notice if he or she is of the opinion
that
(a) it should not have been served; or
40
2005 Water Efficiency Labelling and Standards No. s. 40G
(b) the person on whom it was served should
not be proceeded against for the offence
to which it relates.
(2) Subsection (1) applies whether or not the
infringement notice has been accepted.
(3) The infringement notice is to be withdrawn by
serving the person with a notice of withdrawal,
approved by the Regulator, within 108 days after
the service of the infringement notice.
(4) As soon as practicable after the notice of
withdrawal is served, any sum that the person
has paid by way of penalty under the
infringement notice must be repaid to the person.
Note This section does not appear in the Commonwealth Act.
40G. Certain evidence not admissible
Evidence of the service, acceptance or
withdrawal of an infringement notice is not
admissible in any proceedings for the offence to
which the notice relates.
Note This section does not appear in the Commonwealth Act.
40H. Penalties to be paid into Consolidated Fund
Any sum paid under this Part by way of penalty
is to be paid into the Consolidated Fund.
Note This section does not appear in the Commonwealth Act.
41
s. 41 No. Water Efficiency Labelling and Standards 2005
Division 2 Publicising offences
41. Regulator may publicise offences
(1) The Regulator may publicise, in any way he or
she 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; or
(b) prevent anyone else from publicising an
offence against this Act; or
(c) affect any obligation (however imposed)
on anyone to publicise an offence against
this Act.
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.
42
2005 Water Efficiency Labelling and Standards No. s. 43
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 Section 43 of the Commonwealth Act 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,
43
s. 44 No. Water Efficiency Labelling and Standards 2005
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
44
2005 Water Efficiency Labelling and Standards No. s. 44
(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 Section 44 of the Commonwealth Act confers a similar power
to grant injunctions on the Federal Court of Australia.
45
s. 45 No. Water Efficiency Labelling and Standards 2005
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 his or her powers or performing his
or her functions, a WELS inspector must comply
with any direction of the Regulator.
Note 1 Section 46A provides offences in relation to hindering,
obstructing or impersonating WELS inspectors.
Note 2 This section differs from section 45 of the Commonwealth
Act.
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
46
2005 Water Efficiency Labelling and Standards No. s. 46
(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; and
(b) the person ceases to be a WELS
inspector; and
(c) the person does not return the identity
card to the Regulator as soon as
practicable.
Penalty: Fine not exceeding 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 This section differs from section 46 of the Commonwealth
Act.
47
s. 46A No. Water Efficiency Labelling and Standards 2005
46A. Offences in relation to WELS inspectors
(1) A person must not, without reasonable excuse,
hinder or obstruct a WELS inspector who is
exercising a power under this Act.
Penalty: Fine not exceeding 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: Fine not exceeding 60 penalty units.
Note This section does not appear in the Commonwealth Act but
provisions to the same effect 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.
Note This section differs from section 47 of the Commonwealth
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
48
2005 Water Efficiency Labelling and Standards No. s. 49
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 he or she 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:
49
s. 50 No. Water Efficiency Labelling and Standards 2005
(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;
(c) take photographs, make video or audio
recordings or make sketches of the
premises or 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.
50
2005 Water Efficiency Labelling and Standards No. s. 51
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.
Note Division 3 deals with applications for warrants.
(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;
(c) seize or secure any evidential material on
the premises.
(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: Fine not exceeding 60 penalty units.
Note This section differs from section 51 of the Commonwealth
Act.
51
s. 52 No. Water Efficiency Labelling and Standards 2005
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 he or she 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.
52
2005 Water Efficiency Labelling and Standards No. s. 54
54. Occupier must provide inspector with facilities and
assistance
A person commits an offence if
(a) the person is the occupier of WELS
premises; and
(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: Fine not exceeding 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;
53
s. 56 No. Water Efficiency Labelling and Standards 2005
(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 a magistrate for an order
allowing possession or control of
evidential material for such further
period as is specified in the order; and
(b) if a magistrate makes such an order, so
retain possession or control of the
material.
(2) In determining the application, the magistrate
must allow the owner of the material to appear
and be heard.
(3) The magistrate must not make an order allowing
possession or control of the material for a further
period unless the magistrate 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.
54
2005 Water Efficiency Labelling and Standards No. s. 58
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; and
(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; and
55
s. 59 No. Water Efficiency Labelling and Standards 2005
(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.
(5) Except as provided by this Act, the provisions in
respect of search warrants under the Search
Warrants Act 1997 extend and apply to warrants
under this section.
Note This section differs from section 58 of the Commonwealth
Act.
59. Warrants by telephone, fax, &c.
(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.
56
2005 Water Efficiency Labelling and Standards No. s. 59
(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; and
(ii) tell the WELS inspector the day
on which and the time at which
the warrant was signed; and
(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
57
s. 59 No. Water Efficiency Labelling and Standards 2005
(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
58
2005 Water Efficiency Labelling and Standards No. s. 60
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.
Note This section differs from section 59 of the Commonwealth
Act.
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
59
s. 62 No. Water Efficiency Labelling and Standards 2005
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 referred to 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: Fine not exceeding 60 penalty units.
Note This section differs from section 61 of the Commonwealth
Act.
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
60
2005 Water Efficiency Labelling and Standards No. s. 62
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 referred to in the notice 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: Fine not exceeding 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
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as required by notice given under
that subsection.
Penalty: Fine not exceeding 60 penalty units.
Note This section differs from section 62 of the Commonwealth
Act.
62A. False or misleading information or documents
(1) A person is guilty of an offence if
(a) the person gives information to a WELS
inspector under section 61(1) or
section 62; 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: Fine not exceeding 60 penalty units.
(2) A person is guilty of an offence if
(a) the person produces a book, record or
document to a WELS inspector under
section 61(1) or section 62; and
(b) the person does so knowing that the
document is false or misleading in a
material particular.
Penalty: Fine not exceeding 60 penalty units.
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2005 Water Efficiency Labelling and Standards No. s. 63
(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 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 him or her or make him or her liable
to a penalty.
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s. 64 No. Water Efficiency Labelling and Standards 2005
PART 10 MONEY
Division 1 The WELS Account
64. WELS Account
Note Section 64 of the Commonwealth Act establishes the WELS
Account.
65. Credits to the WELS Account
(1) Amounts equal to money received by the State
(a) in respect of fines or infringement
penalties or undertakings given under
section 42; or
(b) under Division 2 of this Part
must be paid to the Commonwealth for crediting
to the WELS Account.
(2) The Consolidated Fund is appropriated to the
necessary extent to enable amounts to be paid to
the Commonwealth in accordance with
subsection (1).
Note This section differs from section 65 of the Commonwealth
Act.
66. Purpose of the WELS Account
The purpose of the WELS Account is to make
payments
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2005 Water Efficiency Labelling and Standards No. s. 67
(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.
Note This section differs from section 66 of the Commonwealth
Act.
Division 2 Charging fees, &c.
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.
Note This section differs from section 67 of the Commonwealth
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.
Note This section differs from section 68 of the Commonwealth
Act.
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s. 69 No. Water Efficiency Labelling and Standards 2005
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; and
(b) the reasons for the decision; and
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2005 Water Efficiency Labelling and Standards No. s. 71
(c) a statement setting out particulars of the
person's review rights.
(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.
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s. 72 No. Water Efficiency Labelling and Standards 2005
72. Review of decisions by Administrative Appeals
Tribunal
(1) Subject to the Administrative Appeals Tribunal
Act 1975 of the Commonwealth, an application
may be made to the Administrative Appeals
Tribunal for review of the following decisions:
(a) a reviewable decision made by the
Regulator personally;
(b) an internal review decision made by the
Regulator under section 71.
(2) An application under subsection (1) may be
made only by the affected person concerned.
Note This section differs from section 72 of the Commonwealth
Act.
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2005 Water Efficiency Labelling and Standards No. s. 73
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; or
(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
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s. 74 No. Water Efficiency Labelling and Standards 2005
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.
Note This section differs from section 73 of the Commonwealth
Act.
74. Compensation for acquisition of property
Note Section 74 of the Commonwealth Act 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 section
75 of the Commonwealth Act to be laid before
each House of the Parliament within 15 sitting-
days of that House after the Minister receives the
report.
Note This section differs from section 75 of the Commonwealth
Act. That section 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.
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2005 Water Efficiency Labelling and Standards No. s. 76
76. Review of operation of WELS scheme
The Minister must cause a copy of the report of
the independent review of the operation of the
WELS scheme given to the State under section
76 of the Commonwealth Act to be laid before
each House of the Parliament within 15 sitting-
days of that House after the Minister receives the
report.
Note This section differs from section 76 of the Commonwealth
Act. That section 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 for the
purposes of 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 20
penalty units for offences against the
regulations.
Note This section differs from section 77 of the Commonwealth
Act.
78. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
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s. 78 No. Water Efficiency Labelling and Standards 2005
(a) the administration of this Act is assigned
to the Minister for Primary Industries and
Water; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Primary
Industries, Water and Environment.
72 Government Printer, Tasmania