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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Water Efficiency Labelling and Standards Act 2004
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Objects of Act 2
4. Act to bind the Crown 2
5. External Territories 2
5A. Numbering 3
PART 2--INTERPRETATION 4
6. Application of the Criminal Code 4
7. Definitions 4
7A. Increased maximum fine for body corporate 7
PART 3--NATIONAL WELS SCHEME 8
8. WELS scheme to be a national cooperative scheme 8
9. Application of this Act 8
10. Relationship to other State laws 8
11. State and Territory laws may operate concurrently 8
12. Meaning of "corresponding law" 8
13. Commonwealth consent to conferral of functions etc. on the
Regulator or inspectors by corresponding laws 9
14. How duty is imposed by corresponding laws 9
15. When a corresponding State-Territory law imposes a duty 9
16. No doubling-up of liabilities 9
17. Review of decisions under this Act 10
PART 4--WELS PRODUCTS AND WELS STANDARDS 11
18. WELS products 11
19. WELS standards 11
20. Meaning of WELS-labelled 11
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551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Clause Page
PART 5--THE WELS REGULATOR 12
21. The Regulator 12
22. Functions of the Regulator 12
23. Powers of the Regulator 13
24. Arrangements with other agencies 13
25. Delegation 13
PART 6--REGISTRATION OF WELS PRODUCTS 15
26. Applying for registration 15
27. Documentation etc. to be provided with application for
registration 16
28. Registration of products 16
29. Grounds for refusing to register 17
30. Period of registration 17
31. Cancelling or suspending registration 18
PART 7--OFFENCES RELATING TO THE SUPPLY OF WELS
PRODUCTS 20
Division 1--Applicable WELS Standards 20
32. Meaning of applicable WELS standard 20
Division 2--Registration and Labelling 20
33. Registration requirement 20
34. Labelling registered products 20
Division 3--Minimum Efficiency and Performance Requirements 21
35. Minimum water efficiency--products required to be registered 21
36. Minimum general performance--products required to be
registered 21
Division 4--Misuse of WELS Standards etc. 22
37. Misuse of WELS standards and information 22
38. Information inconsistent with WELS standards 22
39. Using information in the supply of products 23
Division 5--Extensions of Criminal Responsibility 23
39A. Attempts 23
39B. False or misleading information or document 24
ii
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Clause Page
PART 8--OTHER ENFORCEMENT 26
Division 1--Infringement Notices 26
40. Power to serve a notice 26
40A. Form of notice 26
40B. Late payment of penalty 27
40C. Withdrawal of notice 28
40D. Payment expiates offence 28
40E. Application of penalty 29
40F. Prosecution after service of infringement notice 29
40G. Enforcement of infringement penalty 30
Division 2--Publicising Offences 30
41. Regulator may publicise offences 30
Division 3--Enforceable Undertakings 31
42. Acceptance of undertakings 31
43. Enforcement of undertakings 31
Division 4--Injunctions 32
44. Injunctions 32
PART 9--WELS INSPECTORS 34
Division 1--Appointment of WELS Inspectors 34
45. Regulator may appoint WELS inspectors 34
46. Identity cards 34
46A. Offences in relation to WELS inspectors 35
Division 2--Powers of WELS Inspectors 36
47. Purposes for which powers can be used 36
48. Inspection powers--public areas of WELS business premises 36
49. Inspection powers--with consent 36
50. Refusing consent is not an offence 37
51. Inspection powers--with warrant 38
52. Announcement before entry under warrant 39
53. Copy of warrant to be given to occupier 39
54. Occupier must provide inspector with facilities and assistance 39
55. Seizing or securing evidential material 40
56. Holding evidential material for more than 90 days 40
57. Returning evidential material 41
Division 3--Applying for Warrants to Enter WELS Premises 41
58. Ordinary warrants 41
59. Warrants by telephone, fax etc. 42
iii
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Clause Page
Division 4--Giving WELS Information to WELS Inspectors 45
60. Meaning of person who has WELS information 45
61. Regulator may require a person to provide information 45
62. Regulator may require a person to appear before a WELS
inspector 46
62A. False or misleading information or documents 47
Division 5--Privilege against Self-Incrimination 48
63. Privilege against self-incrimination not affected 48
PART 10--MONEY 49
Division 1--The WELS Account 49
64. WELS Account 49
65. Credits to the WELS Account 49
66. Purpose of the WELS Account 49
Division 2--Charging Fees etc. 50
67. Regulator may charge for services 50
68. Recovery of amounts 50
PART 11--REVIEW OF DECISIONS 51
69. Meaning of reviewable decision and affected person 51
70. Notification of decisions and review rights 51
71. Internal review 52
72. Review of decisions by Administrative Appeals Tribunal 52
PART 12--MISCELLANEOUS 54
73. Compensation for damage to electronic equipment 54
74. Compensation for acquisition of property 55
75. Annual report 55
76. Review of operation of WELS scheme 55
77. Regulations 56
ENDNOTES 57
INDEX 58
iv
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
PARLIAMENT OF VICTORIA
Initiated in Assembly 14 October 2004
As amended by Assembly 24 February 2005
A BILL
to provide for water efficiency labelling and the making of water
efficiency standards and for other purposes.
Water Efficiency Labelling and
Standards Act 2004
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to provide for water
efficiency labelling and for the making of water
efficiency standards.
5
Note: This section differs from section 1 of the Commonwealth
Act.
1
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 1--Preliminary
s. 2
2. Commencement
(1) This section and section 1 come into operation on
the day after the day on which this Act receives
the Royal Assent.
(2) The remaining provisions of this Act come into
5
operation 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--
10
(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
15
effective water-use and water-saving
technologies.
4. Act to bind the Crown
(1) This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
20
permits, the Crown 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
25 Act.
5. External Territories
Note: The Commonwealth Act includes a provision extending
that Act to every external Territory other than Norfolk
Island.
2
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 1--Preliminary
s. 5A
5A. Numbering
(1) In order to maintain consistent numbering
between this Act and the Water Efficiency
Labelling and Standards Act 2004 of the
Commonwealth--
5
(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
10
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
15
common to both Acts.
(2) A provision number and heading referred to in
sub-section (1)(a) form part of this Act.
Note 1: A note appears under each heading of a kind referred
20 to in sub-section (1)(a) describing the omitted section
of the Commonwealth Act.
Note 2: A note appears under each section of a kind referred
to in sub-section (1)(b) highlighting the non-
appearance of an equivalent section in the
25 Commonwealth Act.
Note 3: This section does not appear in the Commonwealth
Act.
__________________
3
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 2--Interpretation
s. 6
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
5 offences against that Act.
7. Definitions
(1) In this Act--
"Administrative Appeals Tribunal" means the
Administrative Appeals Tribunal established
by the Administrative Appeals Tribunal Act
10
1975 of the Commonwealth;
"affected person" has the meaning given by
sections 69(2) and 69(3);
"agency"--
(a) in relation to the Commonwealth,
15
includes the following--
(i) an Agency within the meaning of
the Financial Management and
Accountability Act 1997 of the
Commonwealth;
20
(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--
25
(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
30
State or Territory;
4
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 2--Interpretation
s. 7
"applicable WELS standard" has the meaning
given by section 32;
"Commonwealth Act" means the Water
Efficiency Labelling and Standards Act 2004
of the Commonwealth;
5
"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
10
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
15
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 in the
20
Commonwealth Act;
Note: "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
25
meaning given by section 60;
"registered" means registered under a WELS
standard;
"Regulator" means the Regulator established by
section 21 of the Commonwealth Act;
30
"reviewable decision" has the meaning given by
section 69(1);
5
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 2--Interpretation
s. 7
"supply" means--
(a) supply for consideration; or
(b) offer to supply for consideration;
"water-saving product" means a device,
appliance or fitting that--
5
(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
10
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
15
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
20
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
25
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.
30
6
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 2--Interpretation
s. 7A
(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--
(a) as amended and in force for the time being;
5
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
10 Act.
7A. Increased maximum fine for body corporate
(1) If a body corporate is found guilty of an offence
against this Act or the regulations and the court
has power to fine the body corporate, it may,
unless the contrary intention appears, impose on
15
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.
20
(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
25 a provision to the same effect is included in section 4B of
the Crimes Act 1914 of the Commonwealth.
__________________
7
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 3--National WELS Scheme
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
5
provide for national water efficiency labelling and
standards.
9. Application of this Act
Note: The Commonwealth Act includes a provision about the
10 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.
15 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 laws to operate concurrently with that Act.
12. Meaning of "corresponding law"
20
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,
25
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
30 enactments.
8
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 3--National WELS Scheme
s. 13
13. Commonwealth consent to conferral of functions
etc. on the Regulator or inspectors by corresponding
laws
Note: Section 13 of the Commonwealth Act provides
5 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: Section 14 of the Commonwealth Act deals with the
10 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: Section 15 of the Commonwealth Act provides a definition
15 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
20
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.
25
(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.
30 Note: This section differs from section 16 of the Commonwealth
Act.
9
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 3--National WELS Scheme
s. 17
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
5
be a reviewable State-Territory decision for 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
10
Act apply as laws of Victoria 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
15
applies as a law of Victoria) 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.
20 Note: This section differs from section 17 of the Commonwealth
Act.
__________________
10
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 4--WELS Products and WELS Standards
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
5 water-saving products are WELS products and 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
10 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
15
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
20
displayed on product packaging;
(b) documents or other material used for, or
provided in connection with, the supply of
the product;
(c) advertising the product.
25
__________________
11
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 5--The WELS Regulator
s. 21
PART 5--THE WELS REGULATOR
21. The Regulator
Note: Section 21 of the Commonwealth Act appoints the
Secretary of the Department of State of the Commonwealth
5 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
10
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;
15
(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
20
Minister about the operation of WELS
standards;
(g) to provide information and advice to--
(i) the Minister; and
(ii) the Secretary of the Department of
25
State of Victoria that deals with the
matters to which this Act relates; and
(iii) the public--
about the operation of the WELS scheme;
12
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 5--The WELS Regulator
s. 23
(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
5
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
10
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
15
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.
20
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
25
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;
30
(c) an officer or employee of an agency of
another State or a Territory.
13
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 5--The WELS Regulator
s. 25
(2) However, the Regulator must not delegate a
power or function, under sub-section (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
5
the delegate's delegated powers and functions,
subject to the Regulator's directions.
Note: This section differs from section 25 of the Commonwealth
Act.
__________________
14
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 6--Registration of WELS Products
s. 26
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.
5
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
10 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
15 required to, 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.
20 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 sub-section (1) and
section 31(3)(b) if that person would be taken to
25
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
30 Commonwealth Act.
15
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 6--Registration of WELS Products
s. 27
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
5
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
10
(b) any registration fee specified in the
determination.
(2) A determination referred to in sub-section (1) may
also specify conditions that must be complied with
in order for a product to remain registered.
15
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
20
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
25
product.
(2) The Regulator must give the applicant written
notice of the registration or refusal.
16
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 6--Registration of WELS Products
s. 29
(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
5
(b) the applicant has not been notified, under
sub-section (2), that the Regulator has
refused to register the product--
the Regulator is taken to have refused to register
the product.
10
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
15
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
20
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
25
(1) Unless sub-section (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;
30
(b) the period of 5 years that begins on the day
on which the product is registered ends.
17
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 6--Registration of WELS Products
s. 31
(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
5
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
10
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
15
Commonwealth Act is extended by a further
specified period, the period of one year mentioned
in sub-section (2)(d) of this section is extended for
the same purposes by the same further period.
20 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--
25
(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--
30
(i) was not accurate at the time of the
application; or
(ii) is no longer accurate because changes
have been made to the product.
18
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 6--Registration of WELS Products
s. 31
(2) If the Regulator cancels or suspends the
registration of a WELS product under sub-
section (1), the Regulator must give written notice
of the cancellation or suspension to the person on
whose application the product was registered.
5
(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
10
section 18(1) of the Commonwealth Act 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
15
request to the Regulator for the registration
to be cancelled.
__________________
19
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 7--Offences Relating to the Supply of WELS Products
s. 32
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
5
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
10
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--
15
(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.
20
Penalty: 60 penalty units.
34. Labelling registered products
A person commits an offence if--
(a) the person supplies a WELS product; and
(b) the product is registered; and
25
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Part 7--Offences Relating to the Supply of WELS Products
s. 35
(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: 60 penalty units.
5
Division 3--Minimum Efficiency and Performance
Requirements
35. Minimum water efficiency--products required to be
registered
A person commits an offence if--
10
(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
15
(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.
20
Penalty: 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; and
25
(b) the applicable WELS standard requires the
product--
(i) to be registered for the purposes of the
supply; and
21
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Act No.
Part 7--Offences Relating to the Supply of WELS Products
s. 37
(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.
5
Penalty: 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; and
10
(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.
15
Penalty: 60 penalty units.
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--
20
(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.
25
Penalty: 60 penalty units.
Note : Section 39 sets out circumstances in which information is
used for, or in relation to, the supply of a product.
22
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Act No.
Part 7--Offences Relating to the Supply of WELS Products
s. 39
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--
5
(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
10
the product; or
(d) any advertising that relates to the product.
(2) Sub-section (1) does not limit the general meaning
of words used in sections 37 and 38.
Division 5--Extensions of Criminal Responsibility
15
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%
20
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--
25
(a) more than merely preparatory to the
commission of the offence; and
(b) immediately and not remotely connected
with the commission of the offence.
23
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Act No.
Part 7--Offences Relating to the Supply of WELS Products
s. 39B
(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
5
(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
10
an offence against Division 2, 3 or 4 despite the
existence of facts of which the person is unaware
which make the commission of the offence
attempted impossible.
15 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--
20
(a) in connection with an application made to
the Regulator under this Act or the
regulations; or
(b) in compliance or purported compliance with
this Act (other than Division 4 of Part 9) or
25
the regulations--
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;
30
(d) produce a document that the person knows to
be false or misleading in a material particular
without--
24
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 7--Offences Relating to the Supply of WELS Products
s. 39B
(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
5
person, if the person producing the
document is in possession of, or can
reasonably acquire, the correct
information.
Penalty: Imprisonment for 1 year or 60 penalty
10
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.
__________________
25
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
Water Efficiency Labelling and Standards Act 2004
Act No.
Part 8--Other Enforcement
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
5
believe has committed an offence against
Division 2 or 3 of Part 7.
(2) The infringement penalty for an alleged offence is
one-tenth of the maximum fine that a court could
impose as a penalty for that offence.
10
(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
15
person, apparently over the age of 16 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.
20
Note: This section differs from section 40 of the Commonwealth
Act.
40A. Form of notice
An infringement notice must be in a form
approved by the Regulator and must set out--
25
(a) the date of the notice;
(b) the provision of this Act that creates the
offence;
(c) the name and address of the person alleged
to have committed the offence;
30
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Act No.
Part 8--Other Enforcement
s. 40B
(d) the date, time and place of the alleged
offence;
(e) the nature and a brief description of the
alleged offence;
(f) the infringement penalty for the alleged
5
offence;
(g) the manner in which the infringement
penalty may be paid;
(h) the time (not being less than 28 days after the
date on which the notice is served) within
10
which the infringement penalty must be paid;
(i) that, if the amount of the infringement
penalty is paid before the end of the time
specified in the notice, the matter will not be
brought before the Magistrates' Court unless
15
the notice is withdrawn within 28 days after
the date on which it was served;
(j) that the person is entitled to disregard the
notice and defend any proceedings in respect
of the alleged offence in the Magistrates'
20
Court;
(k) any other prescribed particulars.
Note: This section does not appear in the Commonwealth Act.
40B. Late payment of penalty
A WELS inspector may accept payment of the
25
infringement penalty even after the expiration of
the time for payment stated in the infringement
notice if--
(a) neither a charge has been filed nor a courtesy
letter served under Part 2 of Schedule 7 to
30
the Magistrates' Court Act 1989 in respect
of the offence to which the infringement
penalty relates; and
27
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 8--Other Enforcement
s. 40C
(b) the infringement notice has not been
withdrawn.
Note: This section does not appear in the Commonwealth Act.
40C. Withdrawal of notice
(1) The Regulator may withdraw an infringement
5
notice issued by a WELS inspector under this
Division within 28 days after it was served.
(2) The withdrawal of an infringement notice is to be
effected by serving a withdrawal notice on the
person on whom the infringement notice was
10
served.
(3) If the penalty sought in the infringement notice
has been paid before the notice is withdrawn, the
amount of the penalty must be refunded on the
notice being withdrawn, and the Consolidated
15
Fund is, to the necessary extent, appropriated
accordingly.
(4) Proceedings for the offence in respect of which
the infringement notice has been served may still
be taken or continued despite the withdrawal of
20
the notice.
Note: This section does not appear in the Commonwealth Act.
40D. Payment expiates offence
If an infringement notice is not withdrawn and the
infringement penalty is paid within the time
25
specified in the notice or payment is accepted in
accordance with section 40B, then--
(a) the person on whom the notice was served
has expiated the offence by that payment;
and
30
(b) no proceedings may be taken against that
person in respect of that offence; and
28
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Part 8--Other Enforcement
s. 40E
(c) no conviction is to be taken to have been
recorded against that person for the offence.
Note: This section does not appear in the Commonwealth Act.
40E. Application of penalty
(1) An infringement penalty paid under this Division
5
must be applied in the same way as a fine paid
under an order of a court made on an offender
being convicted or found guilty of the offence to
which the infringement penalty relates.
(2) The payment of an infringement penalty under
10
this Division is not and must not be taken to be--
(a) an admission of guilt in relation to the
offence; or
(b) an admission of liability for the purpose of
any civil claim or proceeding arising out of
15
the same occurrence, and the payment does
not in any way affect or prejudice any such
claim or proceeding.
(3) The payment of an infringement penalty under
this Division must not be referred to in any report
20
provided to a court for the purpose of determining
sentence for any offence.
Note: This section does not appear in the Commonwealth Act.
40F. Prosecution after service of infringement notice
A charge may be filed in respect of an offence to
25
which an infringement notice relates if--
(a) the infringement penalty has not been paid
within the time for payment specified in the
notice or in accordance with section 40B; or
(b) the notice is withdrawn.
30
Note: This section does not appear in the Commonwealth Act.
29
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 8--Other Enforcement
s. 40G
40G. Enforcement of infringement penalty
Payment of the infringement penalty may be
enforced in accordance with Part 2 of Schedule 7
to the Magistrates' Court Act 1989 if--
(a) the infringement notice is an infringement
5
notice within the meaning of Schedule 7 to
that Act; and
(b) the infringement penalty has not been paid
within the time specified in the notice or in
accordance with section 40B; and
10
(c) the notice has not been withdrawn; and
(d) a charge has not been filed in accordance
with section 40F.
Note: This section does not appear in the Commonwealth Act.
Division 2--Publicising Offences
15
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--
20
(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
25
anyone to publicise an offence against this
Act.
30
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 8--Other Enforcement
s. 42
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--
5
(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
10
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
15
Supreme Court for an order under sub-section (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
20
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
25
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
30
breach;
31
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Act No.
Part 8--Other Enforcement
s. 44
(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
5 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
10
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.
15
(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
20
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.
25
(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.
30
32
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Part 8--Other Enforcement
s. 44
(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
5
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--
10
(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
15
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.
20 Note: Section 44 of the Commonwealth Act confers a similar
power to grant injunctions on the Federal Court of
Australia.
__________________
33
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 9--WELS Inspectors
s. 45
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--
5
(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
10
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
15
with any direction of the Regulator.
Note 1: Section 46A provides offences in relation to
hindering, obstructing or impersonating WELS
inspectors.
20 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--
25
(a) be in the form prescribed by the regulations
made under the Commonwealth Act; and
(b) contain a recent photograph of the WELS
inspector.
34
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 9--WELS Inspectors
s. 46A
(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
5
(c) the person does not return the identity card to
the Regulator as soon as practicable.
Penalty: 1 penalty unit.
(4) A WELS inspector must carry his or her identity
card at all times when exercising powers or
10
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
15
identity card for inspection by the occupier;
and
(b) the WELS inspector fails to comply with the
requirement.
20 Note: This section differs from section 46 of the Commonwealth
Act.
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.
25
Penalty: 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: 60 penalty units.
30
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.
35
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 9--WELS Inspectors
s. 47
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
5
with this Act or the regulations;
(b) investigating a possible offence against this
Act or the regulations.
48. Inspection powers--public areas of WELS business
premises
10
(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;
15
(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;
20
(d) discuss product features with any person;
(e) observe practices relating to the supply of
products.
(2) Sub-section (1) does not affect any right of the
occupier of the premises to refuse to allow a
25
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 sub-section (3) if
30
the occupier of the premises consents to the entry
and the exercise of those powers.
36
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Part 9--WELS Inspectors
s. 50
(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
5
accordance with sub-section (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
10
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
15
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
20
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
25
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
30
inspector to enter, or remain on, the
premises; and
(b) the WELS inspector does not have a warrant
to enter the premises.
37
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Act No.
Part 9--WELS Inspectors
s. 51
51. Inspection powers--with warrant
(1) A WELS inspector may enter WELS premises and
exercise the powers set out in sub-section (2) if
the WELS inspector has a warrant for the entry.
5 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);
10
(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;
15
(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
20
sub-section (2)(b); and
(b) the person does not answer the question or
produce the book, record or document.
Penalty: 60 penalty units.
25 Note: This section differs from section 51 of the Commonwealth
Act.
38
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 9--WELS Inspectors
s. 52
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
5
(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
sub-section (1) if he or she believes on reasonable
grounds that immediate entry to the premises is
10
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
15
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.
20
(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
25
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
30
39
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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 9--WELS Inspectors
s. 55
(c) the person does not provide the WELS
inspector with all reasonable facilities and
assistance for the effective execution of the
warrant.
Penalty: 30 penalty units.
5
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.
10
(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.
15
(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
20
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
25
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
30
material.
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(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
5
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
10
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
15
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.
20
(2) The magistrate may issue the warrant, in
accordance with the Magistrates' Court Act
1989, 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
25
purposes--
(a) determining whether a person is complying
with this Act or the regulations;
(b) investigating a possible offence against this
Act or the regulations.
30
(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
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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
5
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;
10
and
(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
15
issued.
(5) Except as provided by this Act, the rules to be
observed with respect to search warrants under the
Magistrates' Court Act 1989 extend and apply to
warrants under this section.
20
Note: This section differs from section 58 of the Commonwealth
Act.
59. Warrants by telephone, fax etc.
(1) If, in an urgent case, a WELS inspector considers
it necessary to do so, the WELS inspector may
25
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;
30
and
(b) make a recording of the whole or any part of
any such communication by voice.
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(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
5
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
10
(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
15
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
20
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
25
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
30
which the warrant ceases to have effect;
and
(iv) record on the warrant the reasons for
issuing the warrant; and
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(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
5
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
10
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 sub-section (3),
15
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
20
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 sub-
25
section (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
30
to be satisfied that an exercise of a power
was authorised by this section; and
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(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
5
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
10
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
15
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
20
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;
25
or
(b) any book, record or document that is
specified in the notice.
The period must end not less than 14 days after
the notice is given.
30
(2) A notice under subsection (1) must set out the
effect of section 62A.
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(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
5
the information, book, record or document.
Penalty: 60 penalty units.
Note: This section differs from section 61 of the Commonwealth
Act.
62. Regulator may require a person to appear before a
10
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--
15
(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.
20
The time must not be earlier than 14 days after the
notice is given.
(2) A notice under sub-section (1) must set out the
effect of section 62A.
(3) A person commits an offence if--
25
(a) the person is required to appear before a
WELS inspector under sub-section (1); and
(b) the person does not appear before the WELS
inspector.
Penalty: 60 penalty units.
30
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(4) A person commits an offence if--
(a) the person is required under sub-section (1)
to appear before a WELS inspector; and
(b) when appearing before the WELS inspector,
the person does not--
5
(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 sub-section.
10
Penalty: 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--
15
(a) the person gives information to a WELS
inspector under section 61(1) or 62; and
(b) the person does so knowing that the
information--
(i) is false or misleading in a material
20
particular; or
(ii) omits any matter or thing without
which the information is misleading in
a material particular.
Penalty: 60 penalty units.
25
(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 62; and
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(b) the person does so knowing that the
document is false or misleading in a material
particular.
Penalty: 60 penalty units.
(3) Subsection (2) does not apply to a person who
5
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--
10
(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
15
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
20 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
25
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
30
to a penalty.
__________________
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Act No.
Part 10--Money
s. 64
PART 10--MONEY
Division 1--The WELS Account
64. WELS Account
Note: Section 64 of the Commonwealth Act establishes the
5 WELS Account.
65. Credits to the WELS Account
(1) Amounts equal to money received by the State--
(a) in respect of fines, infringement penalties or
undertakings given under section 42; or
(b) under Division 2 of this Part--
10
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 sub-
15
section (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
20
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
25
performance of the Regulator's functions
under this Act or the regulations or a
corresponding law.
Note: This section differs from section 66 of the Commonwealth
30 Act.
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s. 67
Division 2--Charging Fees etc.
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
5
this Act or the regulations.
Note: This section differs from section 67 of the Commonwealth
Act.
68. Recovery of amounts
The following amounts may be recovered in a
10
court of competent jurisdiction as debts due to the
State--
(a) fees payable to the State under this Act, the
regulations or a corresponding law;
(b) amounts payable to the State in connection
15
with the performance of the Regulator's
functions under this Act or the regulations.
Note: This section differs from section 68 of the Commonwealth
Act.
__________________
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Act No.
Part 11--Review of Decisions
s. 69
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
5
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
10
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
15
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
20
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
(c) a statement setting out particulars of the
25
person's review rights.
(2) A failure to comply with the requirements of sub-
section (1) in relation to a decision does not affect
the validity of the decision.
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Part 11--Review of Decisions
s. 71
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
5
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,
10
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--
15
(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.
20
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
25
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.
30
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Water Efficiency Labelling and Standards Act 2004
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Part 11--Review of Decisions
s. 72
(2) An application under sub-section (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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Water Efficiency Labelling and Standards Act 2004
Act No.
Part 12--Miscellaneous
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--
5
(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,
10
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
15
(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
20
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
25
determines.
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Part 12--Miscellaneous
s. 74
(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
5
guidance on the operation of the equipment.
Note: This section differs from section 73 of the Commonwealth
Act.
74. Compensation for acquisition of property
10 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
15
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.
20 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.
76. Review of operation of WELS scheme
25
The Minister must cause a copy of the report of
the independent review 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
30
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
35 possible after the fifth anniversary of the commencement of
that section. The Commonwealth Minister is required to
give a copy to the State.
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Part 12--Miscellaneous
s. 77
77. Regulations
(1) The Governor in Council may make regulations
prescribing matters--
(a) required or permitted by this Act to be
prescribed; or
5
(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
10
Act (including the regulations); and
(b) prescribe penalties of not more than
20 penalty units for offences against the
regulations.
15 Note: This section differs from section 77 of the Commonwealth
Act.
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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Water Efficiency Labelling and Standards Act 2004
Act No.
INDEX
Subject Section
Act
commencement 2
Crown bound by 4
numbering 5A
objects 3
purpose 1
relationship to other State laws 10
See also Commonwealth Act
7, 17, 72
Administrative Appeals Tribunal
7, 24, 45
Agencies
Commonwealth Act
definition 7
numbering of State Act consistent with 5A
sections in State Act different from 1, 2, 4, 7, 10, 12,
1617, 22, 2427,
30, 40, 4546, 51,
5859, 6162,
6568, 7273,
7577
sections in State Act not included in 5A, 7A, 39A,
39B, 40A40G,
46A, 62A
sections not reproduced in State Act 56, 9, 11, 1315,
1819, 21, 64, 74
7, 27, 30
Commonwealth Minister
43, 7374
Compensation
7, 12
Corresponding laws
7
Definitions
Entry powers See Search and entry powers
7, 51, 5557
Evidential material
27, 6768
Fees
Infringement notices
application of penalties 40E
form 40A
payment of penalties 40B, 40D, 40G
prosecution after service of 40F
service 40
withdrawal 40C
44
Injunctions
7576
Minister
Occupiers See WELS premises
Offences and penalties
by bodies corporate 7A
by persons who have WELS information 6062A
definition of "offences against this Act" 7
definition of penalty unit 7
false, misleading information, documents 39B, 62A
infringements 4040G
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Water Efficiency Labelling and Standards Act 2004
Act No.
Subject Section
injunctions 44
no doubling up of liability for 16
publicising of 41
regarding supply of WELS products 3339A
regarding WELS inspectors 4646A, 51, 54
Registration
applications 2627
cancellation 31
conditions 27
duration 30
effect of changes to WELS standards on 30, 31
fees 27
grant, refusal to grant 2829
review of decisions regarding 6972
suspension 31
undertakings regarding compliance with conditions 4243
See also Supply
77
Regulations
Regulator
annual report 75
arrangements with agencies of State 24
definition 7
delegation 25
false, misleading information in applications to 39B
fees, payments in connection with performance of
functions 6568
functions 22
powers in general 23
powers regarding
compensation 73
evidential material seized on WELS premises 5557
infringement notices 40A, 40C
injunctions 44
persons who have WELS information 6062
publicising of offences 41
registration 2631
undertakings 4243
WELS inspectors 4546
review of decisions by and of 7072
sections in Commonwealth Act providing for 1315, 21
Review
by Administrative Appeals Tribunal 17, 72
by Regulator 71
notification of rights regarding 70
reviewable decisions (def.) 7, 69
Search and entry powers
with consent 49
with warrants 5154, 5859
51, 5557
Seizure
Self-incrimination
protection from 63
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Water Efficiency Labelling and Standards Act 2004
Act No.
Subject Section
Supply
attempted offences 39A
definition 7
misuse of WELS standards and information 3739
non-compliance with general performance
requirements 36
non-compliance with minimum water efficiency
requirements 35
registered products without WELS labelling 34
unregistered products 33
4344, 73
Supreme Court
Water-saving products (def.) 7
Water-use products (def.) 7
6466
WELS Account
WELS business premises See WELS premises
WELS information
misuse of, inconsistencies with standards 3739
persons who have 7, 6062A
WELS inspectors
appointment 45
definition 7
hindrance, obstruction, impersonation of 46A
identity cards 46
non-compliance with requirements of 51, 54
powers regarding
entry with consent to WELS premises 4950
entry with warrant to WELS premises 5154, 5859
infringement notices 40, 40B
persons who have WELS information 6162
public areas of WELS business premises 48
seizure, securing of evidential material 51, 55
protection from self-incrimination not affected 63
purpose of exercise of powers 47
sections in Commonwealth Act providing for 1315
WELS-labelled (def.) 7, 20
WELS premises
definition 7
occupiers (def.) 7
occupiers' rights, duties regarding inspectors 4850, 5355
WELS business premises (def.) 7
WELS products
definition 7
sections in Commonwealth Act providing for 18
See also Registration; Supply; WELS standards
WELS scheme
annual report on operation of 75
as national cooperative scheme 8
definition 7
review of operation of 76
See also Regulator
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Water Efficiency Labelling and Standards Act 2004
Act No.
Subject Section
WELS standards
applicable WELS standards (def.) 7, 32
definition 7
information inconsistent with 38
misuse in supply 37
sections in Commonwealth Act providing for 18, 19
undertakings regarding compliance with 4243
See also Registration; Supply
61
551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005
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