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This is a Bill, not an Act. For current law, see the Acts databases.

WATER EFFICIENCY LABELLING AND STANDARDS AMENDMENT (SCHEME ENHANCEMENTS) BILL 2012

2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Water Efficiency Labelling and
Standards Amendment (Scheme
Enhancements) Bill 2012
No. , 2012
(Sustainability, Environment, Water, Population and Communities)
A Bill for an Act to amend the Water Efficiency
Labelling and Standards Act 2005, and for related
purposes
i Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012
No. , 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Registration of WELS products
3
Part 1--Amendments
3
Water Efficiency Labelling and Standards Act 2005
3
Part 2--Transitional provisions
6
Schedule 2--Improving compliance
9
Part 1--Amendments
9
Water Efficiency Labelling and Standards Act 2005
9
Part 2--Application provisions
25
Schedule 3--Other amendments
26
Part 1--Administrative improvements
26
Water Efficiency Labelling and Standards Act 2005
26
Part 2--Removal of voluntary registrations
31
Water Efficiency Labelling and Standards Act 2005
31
Part 3--Application and transitional provisions
32
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 1
A Bill for an Act to amend the Water Efficiency
1
Labelling and Standards Act 2005, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Water Efficiency Labelling and
6
Standards Amendment (Scheme Enhancements) Act 2012.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012
No. , 2012
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Schedule 2
The day after this Act receives the Royal
Assent.
4. Schedule 3,
Part 1
The day this Act receives the Royal Assent.
5. Schedule 3,
Part 2
1 November 2013.
1 November
2013
6. Schedule 3,
Part 3
The day this Act receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Registration of WELS products Schedule 1
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 3
Schedule 1--Registration of WELS products
1
Part 1--Amendments
2
Water Efficiency Labelling and Standards Act 2005
3
1 Section 7 (definition of registered)
4
Repeal the definition, substitute:
5
registered: a WELS product is registered if the product is
6
registered under the scheme formulated under subsection 26(1).
7
2 Part 6
8
Repeal the Part, substitute:
9
Part 6--Registration of WELS products
10
11
26 Registration of WELS products
12
(1) The Commonwealth Minister must, by legislative instrument,
13
formulate a scheme relating to the registration of WELS products.
14
(2) Without limiting subsection (1), the scheme may make provision
15
for, or in relation to, any of the following:
16
(a) applications for registration of WELS products (including
17
renewal of registration);
18
(b) the information or documents to be provided with
19
applications for registration (including verification by
20
statutory declaration of the information);
21
(c) the fees to be paid in connection with applications for
22
registration, including methods for working out such fees and
23
the circumstances in which fees may be waived or refunded
24
(either in whole or in part);
25
(d) the grounds for approving or refusing applications for
26
registration;
27
(e) the period of registration;
28
(f) the requirements to be met in order for WELS products to
29
remain registered;
30
Schedule 1 Registration of WELS products
Part 1 Amendments
4 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012
No. , 2012
(g) the consequences for the registration of a product if a WELS
1
standard for the product is varied or replaced;
2
(h) the suspension and cancellation of registration;
3
(i) the creation, maintenance and publication of a register of
4
WELS products;
5
(j) the review of decisions made by the Regulator under the
6
scheme;
7
(k) other matters in connection with the registration of WELS
8
products.
9
(3) Without limiting subsection 33(3A) of the Acts Interpretation Act
10
1901, the scheme may make different provision in relation to:
11
(a) different kinds of WELS products; or
12
(b) different kinds of applications; or
13
(c) different kinds of registrations; or
14
(d)
different
circumstances.
15
(4) Before formulating a scheme under subsection (1), the
16
Commonwealth Minister must have agreement to the terms of the
17
scheme from a majority of the participating States and Territories.
18
(5) Subsection (4) does not apply to a variation of the scheme to
19
remove an ambiguity or uncertainty, or to correct an error.
20
(6) Subsection (5) does not, by implication, limit the application of
21
subsection 33(3) of the Acts Interpretation Act 1901 in relation to
22
the instrument.
23
(7) Despite subsection 44(1) of the Legislative Instruments Act 2003,
24
section 42 of that Act applies to the instrument.
25
Note:
Part 6 (sunsetting) of the Legislative Instruments Act 2003 does not
26
apply to the scheme (see section 54 of that Act).
27
3 Paragraph 42(1)(b)
28
Omit "(see subsection 27(2))", substitute "imposed under the scheme
29
formulated under subsection 26(1)".
30
4 Section 69
31
Repeal the section, substitute:
32
Registration of WELS products Schedule 1
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 5
69 Meaning of reviewable decision and affected person
1
(1) Each of the following decisions is a reviewable decision:
2
(a) a decision by the Regulator under the scheme formulated
3
under subsection 26(1) to refuse to register a WELS product;
4
(b) a decision by the Regulator under the scheme formulated
5
under subsection 26(1) to cancel or suspend the registration
6
of a WELS product.
7
(2) A person whose application to register a WELS product is refused
8
is the affected person for the purposes of a decision referred to in
9
paragraph (1)(a).
10
(3) A person in relation to whom a WELS product is registered is the
11
affected person for the purposes of a decision referred to in
12
paragraph (1)(b).
13
14
Schedule 1 Registration of WELS products
Part 2 Transitional provisions
6 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012
No. , 2012
Part 2--Transitional provisions
1
5 Definitions
2
In this Part:
3
commencement means the commencement of this item.
4
new WELS Act means the Water Efficiency Labelling and Standards
5
Act 2005 as in force immediately after commencement.
6
old WELS Act means the Water Efficiency Labelling and Standards Act
7
2005 as in force immediately before commencement.
8
registration scheme means the scheme formulated under subsection
9
26(1) of the new WELS Act.
10
6 Pending applications at commencement
11
(1)
This item applies if a manufacturer made an application for registration
12
of a WELS product under section 26 of the old WELS Act and,
13
immediately before commencement:
14
(a) the Regulator had not registered the product under section 28
15
of that Act; and
16
(b) the Regulator had not refused to register the product under
17
section 29 of that Act.
18
(2)
The application is taken, immediately after commencement, to have
19
been refused by the Regulator.
20
(3)
If a registration fee accompanied the application, the Regulator must
21
refund the fee to the manufacturer.
22
(4)
Refunds of fees under subitem (3) are taken, for the purposes of
23
section 66 of the new WELS Act, to be payments in connection with the
24
performance of the Regulator's functions under that Act.
25
7 Transitioning existing registrations
26
Application of item
27
(1)
This item applies in relation to a WELS product that was registered
28
within the meaning of the old WELS Act immediately before
29
commencement.
30
Registration of WELS products Schedule 1
Transitional provisions Part 2
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 7
Transitioning registrations
1
(2)
Immediately after commencement:
2
(a) the WELS product is no longer registered within the meaning
3
of the old WELS Act; and
4
(b) all of the following apply:
5
(i) the product is taken, for the purposes of the new WELS
6
Act, to be registered within the meaning of that Act;
7
(ii) the registration scheme applies in relation to the product
8
as if the product were registered within the meaning of
9
the new WELS Act;
10
(iii) the applicable WELS standard for the product is the
11
applicable WELS standard under which the product was
12
registered within the meaning of the old WELS Act.
13
(3)
The WELS product stops being registered within the meaning of the
14
new WELS Act at the end of 80 days after commencement, unless the
15
fee payable in accordance with the registration scheme is paid within
16
that period.
17
(4)
Paragraph (2)(b) and subitem (3) have effect despite anything in the
18
registration scheme.
19
Refund of fees paid under old WELS Act
20
(5)
If a fee accompanied the application that was made under the old WELS
21
Act for registration of the WELS product, the Regulator must pay the
22
person in relation to whom the product is registered an amount worked
23
out using the formula:
24
N
$1,200
1,500
5
-
×
25
where:
26
N is the number (which may be zero) of whole years, as determined
27
immediately before commencement, for which the product was
28
registered within the meaning of the old WELS Act.
29
(6)
The Regulator may set off an amount payable under subitem (5) against
30
the amount of the fee payable under subitem (3).
31
Schedule 1 Registration of WELS products
Part 2 Transitional provisions
8 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012
No. , 2012
(7)
Payments of amounts under subitem (5) are taken, for the purposes of
1
section 66 of the new WELS Act, to be payments in connection with the
2
performance of the Regulator's functions under that Act.
3
Regulations
4
(8)
The Governor-General may make regulations prescribing additional
5
matters of a transitional nature (including any saving or application
6
provisions) relating to Part 6 of the new WELS Act.
7
8
Improving compliance Schedule 2
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 9
Schedule 2--Improving compliance
1
Part 1--Amendments
2
Water Efficiency Labelling and Standards Act 2005
3
1 Subsection 4(2)
4
After "Crown liable", insert "to a pecuniary penalty or".
5
2 Section 7
6
Insert:
7
civil penalty order has the meaning given by subsection 44A(4).
8
3 Section 7
9
Insert:
10
civil penalty provision: a provision of this Act is a civil penalty
11
provision if:
12
(a)
either:
13
(i) the provision sets out at its foot a pecuniary penalty, or
14
penalties, indicated by the words "Civil penalty"; or
15
(ii) another provision of this Act provides that the provision
16
is a civil penalty provision; and
17
(b) the provision is of one of the following kinds:
18
(i) a subsection, or a section that is not divided into
19
subsections;
20
(ii) a subregulation, or a regulation that is not divided into
21
subregulations.
22
4 Section 7
23
Insert:
24
evidential burden, in relation to a matter, means the burden of
25
adducing or pointing to evidence that suggests a reasonable
26
possibility that the matter exists or does not exist.
27
5 Section 7 (definition of evidential material)
28
Repeal the definition, substitute:
29
Schedule 2 Improving compliance
Part 1 Amendments
10 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
evidential material means:
1
(a) in respect of an offence against this Act:
2
(i) any thing with respect to which the offence has been
3
committed or is suspected, on reasonable grounds, to
4
have been committed; or
5
(ii) any thing as to which there are reasonable grounds for
6
suspecting that it will afford evidence as to the
7
commission of the offence; or
8
(iii) any thing as to which there are reasonable grounds for
9
suspecting that it is intended to be used for the purpose
10
of committing the offence; and
11
(b) in respect of a contravention of a civil penalty provision:
12
(i) any thing with respect to which the civil penalty
13
provision has been contravened or is suspected, on
14
reasonable grounds, of having been contravened; or
15
(ii) any thing as to which there are reasonable grounds for
16
suspecting that it will afford evidence as to the
17
contravention of the civil penalty provision; or
18
(iii) any thing as to which there are reasonable grounds for
19
suspecting that it is intended to be used for the purpose
20
of contravening the civil penalty provision.
21
6 Section 7
22
Insert:
23
relevant court means:
24
(a) the Federal Court; or
25
(b) the Federal Magistrates Court; or
26
(c) a court of a State or Territory that has jurisdiction in relation
27
to matters arising under this Act.
28
7 Part 7 (heading)
29
Repeal the heading, substitute:
30
Part 7--Offences and civil penalties relating to the
31
WELS scheme
32
8 Division 2 of Part 7
33
Improving compliance Schedule 2
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 11
Repeal the Division, substitute:
1
Division 2--Registration and labelling
2
32A False or misleading information or documents
3
A person must not provide information or a document with an
4
application for registration of a WELS product if the person
5
knows, or is reckless as to whether, the information or document is
6
false or misleading in a material particular.
7
Civil penalty:
60 penalty units.
8
Note:
Part 7.4 of the Criminal Code provides offences in relation to false or
9
misleading statements.
10
33 Supply of unregistered WELS products
11
(1) A person contravenes this subsection if:
12
(a) the person supplies a WELS product; and
13
(b) the applicable WELS standard requires the product to be
14
registered for the purposes of the supply.
15
(2) Subsection (1) does not apply if the WELS product is registered at
16
the time of the supply.
17
Strict liability offence
18
(3) A person commits an offence of strict liability if the person
19
contravenes subsection (1).
20
Penalty: 60 penalty units.
21
Note 1:
For strict liability, see section 6.1 of the Criminal Code.
22
Note 2:
A defendant bears an evidential burden in relation to the matter in
23
subsection (2): see subsection 13.3(3) of the Criminal Code.
24
Civil penalty provision
25
(4) A person is liable to a civil penalty if the person contravenes
26
subsection (1).
27
Civil penalty:
60 penalty units.
28
Schedule 2 Improving compliance
Part 1 Amendments
12 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
(5) A person who wishes to rely on subsection (2) in proceedings for a
1
civil penalty order bears an evidential burden in relation to the
2
matter in that subsection.
3
34 Supply of WELS products that are not WELS-labelled
4
(1) A person contravenes this subsection if:
5
(a) the person supplies a WELS product; and
6
(b) the applicable WELS standard requires the WELS product to
7
be WELS-labelled for the purposes of the supply; and
8
(c) the product is not WELS-labelled.
9
Note: For
WELS-labelled, see subsection 20(1).
10
Strict liability offence
11
(2) A person commits an offence of strict liability if the person
12
contravenes subsection (1).
13
Penalty: 60 penalty units.
14
Note:
For strict liability, see section 6.1 of the Criminal Code.
15
Civil penalty provision
16
(3) A person is liable to a civil penalty if the person contravenes
17
subsection (1).
18
Civil penalty:
60 penalty units.
19
9 Section 35 (heading)
20
Repeal the heading, substitute:
21
35 Minimum water efficiency
22
10 Subsection 35(1)
23
Omit "commits an offence", substitute "contravenes this subsection".
24
11 Subsection 35(1) (penalty)
25
Repeal the penalty.
26
12 Subsection 35(2)
27
Repeal the subsection, substitute:
28
Improving compliance Schedule 2
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 13
Strict liability offence
1
(2) A person commits an offence of strict liability if the person
2
contravenes subsection (1).
3
Penalty: 60 penalty units.
4
Note:
For strict liability, see section 6.1 of the Criminal Code.
5
Civil penalty provision
6
(3) A person is liable to a civil penalty if the person contravenes
7
subsection (1).
8
Civil penalty:
60 penalty units.
9
13 Section 36 (heading)
10
Repeal the heading, substitute:
11
36 Minimum general performance
12
14 Subsection 36(1)
13
Omit "commits an offence", substitute "contravenes this subsection".
14
15 Subsection 36(1) (penalty)
15
Repeal the penalty.
16
16 Subsection 36(2)
17
Repeal the subsection, substitute:
18
Strict liability offence
19
(2) A person commits an offence of strict liability if the person
20
contravenes subsection (1).
21
Penalty: 60 penalty units.
22
Note:
For strict liability, see section 6.1 of the Criminal Code.
23
Civil penalty provision
24
(3) A person is liable to a civil penalty if the person contravenes
25
subsection (1).
26
Schedule 2 Improving compliance
Part 1 Amendments
14 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
Civil penalty:
60 penalty units.
1
17 Subsection 37(1)
2
Omit "commits an offence", substitute "contravenes this subsection".
3
18 Subsection 37(1) (penalty)
4
Repeal the penalty.
5
19 Subsection 37(2)
6
Repeal the subsection, substitute:
7
Strict liability offence
8
(2) A person commits an offence of strict liability if the person
9
contravenes subsection (1).
10
Penalty: 60 penalty units.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
Civil penalty provision
13
(3) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Civil penalty:
60 penalty units.
16
20 After section 37
17
Insert:
18
37A WELS-labelling products that are not WELS products
19
(1) A person contravenes this subsection if:
20
(a) the person supplies a product; and
21
(b) the product is, or purports to be, WELS-labelled; and
22
(c) the product is not a WELS product.
23
Strict liability offence
24
(2) A person commits an offence of strict liability if the person
25
contravenes subsection (1).
26
Penalty: 60 penalty units.
27
Improving compliance Schedule 2
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 15
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
Civil penalty provision
2
(3) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
60 penalty units.
5
21 Subsection 38(1)
6
Omit "commits an offence", substitute "contravenes this subsection".
7
22 Subsection 38(1) (penalty)
8
Repeal the penalty.
9
23 Subsection 38(2)
10
Repeal the subsection, substitute:
11
Strict liability offence
12
(2) A person commits an offence of strict liability if the person
13
contravenes subsection (1).
14
Penalty: 60 penalty units.
15
Note:
For strict liability, see section 6.1 of the Criminal Code.
16
Civil penalty provision
17
(3) A person is liable to a civil penalty if the person contravenes
18
subsection (1).
19
Civil penalty:
60 penalty units.
20
24 Subsection 40(1)
21
Omit "Part 7", substitute "this Act".
22
25 After subsection 40(1)
23
Insert:
24
(1A) The regulations may provide for a person who is alleged to have
25
contravened a civil penalty provision to pay a penalty to the
26
Schedule 2 Improving compliance
Part 1 Amendments
16 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
Commonwealth as an alternative to proceedings for a civil penalty
1
order.
2
26 At the end of subsection 40(2)
3
Add "or that contravention".
4
27 After Division 3 of Part 8
5
Insert:
6
Division 3A--Compliance audits
7
43A Compliance audits
8
(1) This section applies if the Regulator:
9
(a) suspects, on reasonable grounds, that a person has engaged,
10
is engaging or is proposing to engage in conduct that
11
constituted, constitutes or would constitute:
12
(i) an offence against this Act; or
13
(ii) a contravention of a civil penalty provision; and
14
(b) is satisfied that it would be in the public interest to give the
15
person a notice under this section.
16
(2) The Regulator may, by written notice given to the person, require
17
the person:
18
(a) to undertake, or arrange for another person to undertake, an
19
audit of whichever of the following is specified in the notice:
20
(i) the person's compliance with this Act;
21
(ii) one or more specified aspects of the person's
22
compliance with this Act; and
23
(b) to give the Regulator a written report setting out the results of
24
the audit.
25
(3) The notice must specify:
26
(a) if the notice requires the person to arrange another person to
27
undertake the audit--requirements relating to the
28
qualifications and independence of the other person; and
29
(b) the matters to be covered by the audit; and
30
(c) the period within which the audit must be undertaken; and
31
(d) the form and content of the report; and
32
Improving compliance Schedule 2
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 17
(e) the period within which the report must be given to the
1
Regulator.
2
(4) A person contravenes this subsection if the person is subject to a
3
requirement under subsection (2) and the person fails to comply
4
with the requirement.
5
(5) A person commits an offence of strict liability if the person
6
contravenes subsection (4).
7
Penalty: 30 penalty units.
8
Note:
For strict liability, see section 6.1 of the Criminal Code.
9
(6) A person is liable to a civil penalty if the person contravenes
10
subsection (4).
11
Civil penalty:
30 penalty units.
12
(7) A notice under subsection (2) is not a legislative instrument.
13
Division 3B--Remedial action
14
43B Remedial action
15
(1) This section applies if the Regulator:
16
(a) suspects, on reasonable grounds, that a person has engaged,
17
is engaging or is proposing to engage in conduct that
18
constituted, constitutes or would constitute:
19
(i) an offence against this Act; or
20
(ii) a contravention of a civil penalty provision; and
21
(b) is satisfied that it would be in the public interest to give the
22
person a notice under this section.
23
(2) The Regulator may give the person a written notice requiring the
24
person, within a specified period, to take specified action directed
25
toward either or both of the following:
26
(a) remedying the conduct;
27
(b) ensuring that the person does not engage, or continue to
28
engage, in such conduct in the future.
29
Schedule 2 Improving compliance
Part 1 Amendments
18 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
(3) A person contravenes this subsection if the person is subject to a
1
requirement under subsection (2) and the person fails to comply
2
with the requirement.
3
(4) A person commits an offence of strict liability if the person
4
contravenes subsection (3).
5
Penalty: 30 penalty units.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
(5) A person is liable to a civil penalty if the person contravenes
8
subsection (3).
9
Civil penalty:
30 penalty units.
10
(6) A notice under subsection (2) is not a legislative instrument.
11
28 Subsections 44(1) and (2)
12
After "against this Act", insert "or a contravention of a civil penalty
13
provision".
14
29 After Part 8
15
Insert:
16
Part 8A--Civil penalty orders
17
Division 1--Obtaining a civil penalty order
18
44A Civil penalty orders
19
Application for order
20
(1) The Regulator may apply to a relevant court for an order that a
21
person, who is alleged to have contravened a civil penalty
22
provision, pay the Commonwealth a pecuniary penalty.
23
(2) The Regulator must make the application within 4 years of the
24
alleged contravention.
25
Improving compliance Schedule 2
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 19
Court may order person to pay pecuniary penalty
1
(3) If the relevant court is satisfied that the person has contravened the
2
civil penalty provision, the court may order the person to pay to the
3
Commonwealth such pecuniary penalty for the contravention as the
4
court determines to be appropriate.
5
Note:
Subsection (5) sets out the maximum penalty that the court may order
6
the person to pay.
7
(4) An order under subsection (3) is a civil penalty order.
8
Determining pecuniary penalty
9
(5) The pecuniary penalty must not be more than:
10
(a) if the person is a body corporate--5 times the pecuniary
11
penalty specified for the civil penalty provision; and
12
(b) otherwise--the pecuniary penalty specified for the civil
13
penalty provision.
14
(6) In determining the pecuniary penalty, the relevant court may take
15
into account all relevant matters, including:
16
(a) the nature and extent of the contravention; and
17
(b) the nature and extent of any loss or damage suffered because
18
of the contravention; and
19
(c) the circumstances in which the contravention took place; and
20
(d) whether the person has previously been found by a court to
21
have engaged in any similar conduct.
22
44B Civil enforcement of penalty
23
(1) A pecuniary penalty is a debt payable to the Commonwealth.
24
(2) The Commonwealth may enforce a civil penalty order as if it were
25
an order made in civil proceedings against the person to recover a
26
debt due by the person. The debt arising from the order is taken to
27
be a judgement debt.
28
44C Conduct contravening more than one civil penalty provision
29
(1) If conduct constitutes a contravention of 2 or more civil penalty
30
provisions, proceedings may be instituted under this Part against a
31
Schedule 2 Improving compliance
Part 1 Amendments
20 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
person in relation to the contravention of any one or more of those
1
provisions.
2
(2) However, the person is not liable to more than one pecuniary
3
penalty under this Part in relation to the same conduct.
4
44D Multiple contraventions
5
(1) A relevant court may make a single civil penalty order against a
6
person for multiple contraventions of a civil penalty provision if
7
proceedings for the contraventions are founded on the same facts,
8
or if the contraventions form, or are part of, a series of
9
contraventions of the same or a similar character.
10
Note:
For continuing contraventions of civil penalty provisions, see
11
section 44N.
12
(2) However, the penalty must not exceed the sum of the maximum
13
penalties that could be ordered if a separate penalty were ordered
14
for each of the contraventions.
15
44E Proceedings may be heard together
16
A relevant court may direct that 2 or more proceedings for civil
17
penalty orders are to be heard together.
18
44F Civil evidence and procedure rules for civil penalty orders
19
A relevant court must apply the rules of evidence and procedure
20
for civil matters when hearing proceedings for a civil penalty
21
order.
22
44G Contravening a civil penalty provision is not an offence
23
A contravention of a civil penalty provision is not an offence.
24
Division 2--Civil proceedings and criminal proceedings
25
44H Civil proceedings after criminal proceedings
26
A relevant court may not make a civil penalty order against a
27
person for a contravention of a civil penalty provision if the person
28
has been convicted of an offence constituted by conduct that is the
29
Improving compliance Schedule 2
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 21
same, or substantially the same, as the conduct constituting the
1
contravention.
2
44J Criminal proceedings during civil proceedings
3
(1) Proceedings for a civil penalty order against a person for a
4
contravention of a civil penalty provision are stayed if:
5
(a) criminal proceedings are commenced or have already been
6
commenced against the person for an offence; and
7
(b) the offence is constituted by conduct that is the same, or
8
substantially the same, as the conduct alleged to constitute
9
the contravention.
10
(2) The proceedings for the order (the civil proceedings) may be
11
resumed if the person is not convicted of the offence. Otherwise:
12
(a) the civil proceedings are dismissed; and
13
(b) costs must not be awarded in relation to the civil proceedings.
14
44K Criminal proceedings after civil proceedings
15
Criminal proceedings may be commenced against a person for
16
conduct that is the same, or substantially the same, as conduct that
17
would constitute a contravention of a civil penalty provision
18
regardless of whether a civil penalty order has been made against
19
the person in relation to the contravention.
20
44L Evidence given in civil proceedings not admissible in criminal
21
proceedings
22
(1) Evidence of information given, or evidence of production of
23
documents by an individual, is not admissible in criminal
24
proceedings against the individual if:
25
(a) the individual previously gave the evidence or produced the
26
documents in proceedings for a civil penalty order against the
27
individual for an alleged contravention of a civil penalty
28
provision (whether or not the order was made); and
29
(b) the conduct alleged to constitute the offence is the same, or
30
substantially the same, as the conduct alleged to constitute
31
the contravention.
32
Schedule 2 Improving compliance
Part 1 Amendments
22 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
(2) However, subsection (1) does not apply to criminal proceedings in
1
relation to the falsity of the evidence given by the individual in the
2
proceedings for the civil penalty order.
3
Division 3--Miscellaneous
4
44M Ancillary contravention of civil penalty provisions
5
(1) A person must not:
6
(a) attempt to contravene a civil penalty provision; or
7
(b) aid, abet, counsel or procure a contravention of a civil
8
penalty provision; or
9
(c) induce (by threats, promises or otherwise) a contravention of
10
a civil penalty provision; or
11
(d) be in any way, directly or indirectly, knowingly concerned in,
12
or party to, a contravention of a civil penalty provision; or
13
(e) conspire with others to effect a contravention of a civil
14
penalty provision.
15
Note:
Section 44Q (which provides that a person's state of mind does not
16
need to be proven in relation to a civil penalty provision) does not
17
apply to subsection (1) of this section.
18
Civil penalty
19
(2) A person who contravenes subsection (1) in relation to a civil
20
penalty provision is taken to have contravened the provision.
21
44N Continuing contraventions of civil penalty provisions
22
(1) If an act or thing is required under a civil penalty provision to be
23
done:
24
(a) within a particular period; or
25
(b) before a particular time;
26
then the obligation to do that act or thing continues until the act or
27
thing is done (even if the period has expired or the time has
28
passed).
29
(2) A person who contravenes a civil penalty provision that requires an
30
act or thing to be done:
31
(a) within a particular period; or
32
(b) before a particular time;
33
Improving compliance Schedule 2
Amendments Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 23
commits a separate contravention of that provision in respect of
1
each day during which the contravention occurs (including the day
2
the relevant civil penalty order is made or any later day).
3
44P Mistake of fact
4
(1) A person is not liable to have a civil penalty order made against the
5
person for a contravention of a civil penalty provision if:
6
(a) at or before the time of the conduct constituting the
7
contravention, the person:
8
(i) considered whether or not facts existed; and
9
(ii) was under a mistaken but reasonable belief about those
10
facts; and
11
(b) had those facts existed, the conduct would not have
12
constituted a contravention of the civil penalty provision.
13
(2) For the purposes of subsection (1), a person may be regarded as
14
having considered whether or not facts existed if:
15
(a) the person had considered, on a previous occasion, whether
16
those facts existed in the circumstances surrounding that
17
occasion; and
18
(b) the person honestly and reasonably believed that the
19
circumstances surrounding the present occasion were the
20
same, or substantially the same, as those surrounding the
21
previous occasion.
22
(3) A person who wishes to rely on subsection (1) or (2) in
23
proceedings for a civil penalty order bears an evidential burden in
24
relation to that matter.
25
44Q State of mind
26
(1) In proceedings for a civil penalty order against a person for a
27
contravention of a civil penalty provision (other than section 32A
28
or subsection 44M(1)), it is not necessary to prove:
29
(a) the person's intention; or
30
(b) the person's knowledge; or
31
(c) the person's recklessness; or
32
(d) the person's negligence; or
33
(e) any other state of mind of the person.
34
Schedule 2 Improving compliance
Part 1 Amendments
24 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
(2) Subsection (1) does not affect the operation of section 44P (which
1
is about mistake of fact).
2
30 Paragraphs 47(b) and 58(2)(b)
3
Repeal the paragraphs, substitute:
4
(b)
investigating:
5
(i) a possible contravention of a civil penalty provision; or
6
(ii) a possible offence against this Act.
7
31 At the end of section 60
8
Add "or a contravention of a civil penalty provision".
9
32 At the end of subsection 77(2)
10
Add:
11
; and (c) declare that specified provisions of the regulations are civil
12
penalty provisions for the purposes of this Act, and prescribe
13
penalties for contraventions of such provisions that do not
14
exceed:
15
(i) for a body corporate--250 penalty units; or
16
(ii) in any other case--50 penalty units.
17
18
Improving compliance Schedule 2
Application provisions Part 2
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 25
Part 2--Application provisions
1
33 Application provisions
2
(1)
Section 32A of the Water Efficiency Labelling and Standards Act 2005,
3
as inserted by item 8 of this Schedule, applies in relation to applications
4
made after the commencement of this item.
5
(2)
Sections 43A and 43B of the Water Efficiency Labelling and Standards
6
Act 2005, as inserted by item 27 of this Schedule, apply in relation to
7
conduct engaged in after the commencement of this item.
8
9
Schedule 3 Other amendments
Part 1 Administrative improvements
26 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
Schedule 3--Other amendments
1
Part 1--Administrative improvements
2
Water Efficiency Labelling and Standards Act 2005
3
1 Section 7
4
Insert:
5
Commonwealth Department means the Department of State of the
6
Commonwealth that deals with the matters to which this Act
7
relates.
8
2 Section 7
9
Insert:
10
Federal Court means the Federal Court of Australia.
11
3 Section 7 (definition of offence against this Act)
12
Repeal the definition, substitute:
13
offence against this Act includes:
14
(a) an offence against section 6 of the Crimes Act 1914; and
15
(b) an offence against section 11.1, 11.4, 11.5, 136.1, 137.1 or
16
137.2 of the Criminal Code;
17
that relates to this Act.
18
4 Section 7 (definition of participating State or Territory)
19
Repeal the definition, substitute:
20
participating State or Territory: a State or Territory is a
21
participating State or Territory if there is a corresponding
22
State-Territory law for the State or Territory.
23
5 Section 7 (definition of supply)
24
Repeal the definition, substitute:
25
supply has the meaning given by section 7A.
26
6 Section 7
27
Other amendments Schedule 3
Administrative improvements Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 27
Insert:
1
this Act includes regulations, and other legislative instruments,
2
made under this Act.
3
7 At the end of Part 2
4
Add:
5
7A Meaning of supply
6
(1)
A
supply of a WELS product means a supply of the product in the
7
course of trading or commercial activities, and includes:
8
(a) an offer to supply; and
9
(b) a supply (including a re-supply) by way of sale, exchange,
10
gift, lease, loan, hire or hire-purchase; and
11
(c) a supply as part of the supply of another thing (including as a
12
fitting or fixture).
13
(2) For the purposes of subsection (1):
14
(a) offer to supply includes make available, expose, display or
15
advertise; and
16
(b) it is irrelevant whether the supply is:
17
(i) for consideration; or
18
(ii) a wholesale or retail supply.
19
8 Subsection 18(1)
20
Omit "and in accordance with subsection (4), determine that water-use",
21
substitute ", determine that water-use products".
22
9 Subsection 18(5)
23
Repeal the subsection, substitute:
24
(5) Subsection (4) does not apply to a variation of a determination to
25
remove an ambiguity or uncertainty, or to correct an error.
26
(6) Subsection (5) does not, by implication, limit the application of
27
subsection 33(3) of the Acts Interpretation Act 1901 in relation to a
28
determination under subsection (1).
29
10 Paragraphs 19(3A)(a) and (b)
30
Repeal the paragraphs, substitute:
31
Schedule 3 Other amendments
Part 1 Administrative improvements
28 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
(a) that the products comply with one or more requirements
1
relating to plumbing imposed by or under a law of a State or
2
Territory, as in force from time to time;
3
(b) that a specified type of person or body certifies that the
4
products comply with one or more requirements relating to
5
plumbing imposed by or under a law of a State or Territory,
6
as in force from time to time.
7
11 Sections 21 and 22
8
Repeal the sections, substitute:
9
21 The Regulator
10
(1) The Commonwealth Secretary must, in writing, designate a
11
position in the Commonwealth Department as the position of
12
Regulator.
13
Note:
For creation of positions, see section 77 of the Public Service Act
14
1999.
15
(2) The position of Regulator can only be occupied by an SES
16
employee.
17
(3)
The
Regulator is the SES employee who occupies that position.
18
(4) An instrument under subsection (1) is not a legislative instrument.
19
22 Functions of the Regulator
20
The Regulator has the following functions:
21
(a) to administer the WELS scheme;
22
(b) to provide information and advice in relation to the WELS
23
scheme;
24
(c) to undertake or commission research in relation to the WELS
25
scheme;
26
(d) to monitor and enforce compliance with the WELS scheme;
27
(e) such other functions as are conferred on the Regulator by this
28
Act or any other law.
29
12 Paragraphs 47(a) and 58(2)(a)
30
Omit "or the regulations".
31
Other amendments Schedule 3
Administrative improvements Part 1
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 29
13 Paragraphs 65(b), 66(b) and 68(a)
1
Omit ", the regulations".
2
14 Subsections 71(3) and (4)
3
Repeal the subsections, substitute:
4
(3) The Regulator must, on receiving an application:
5
(a) review the reviewable decision personally; or
6
(b) cause the reviewable decision to be reviewed by a person:
7
(i) to whom the Regulator's power under this section is
8
delegated; and
9
(ii) who was not involved in the making of the decision; and
10
(iii) who occupies a position in the Commonwealth
11
Department that is senior to that occupied by any person
12
involved in making the decision.
13
(4) After the Regulator, or the person mentioned in paragraph (3)(b),
14
has reviewed the reviewable decision, the Regulator or the person
15
may:
16
(a) make a decision affirming, varying or revoking the
17
reviewable decision; and
18
(b) if the decision is revoked--make such other decision as the
19
Regulator or the person thinks appropriate.
20
15 Paragraph 72(1)(b)
21
Omit "by the Regulator".
22
16 After subsection 76(1)
23
Insert:
24
(1A) The Commonwealth Minister must cause further independent
25
reviews of the operation of the WELS scheme to be undertaken:
26
(a) within 5 years after the completion of the review referred to
27
in subsection (1); and
28
(b) thereafter, within 5 years after the completion of the previous
29
review.
30
17 Subsection 76(2)
31
Omit "the review", substitute "a review under this section".
32
Schedule 3 Other amendments
Part 1 Administrative improvements
30 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
18 Subsection 76(3)
1
Omit "the review", substitute "each review".
2
19 Paragraph 77(2)(a)
3
Omit "(including the regulations)".
4
5
Other amendments Schedule 3
Removal of voluntary registrations Part 2
Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill 2012 No.
, 2012 31
Part 2--Removal of voluntary registrations
1
Water Efficiency Labelling and Standards Act 2005
2
20 Subsections 19(2) to (4)
3
Repeal the subsections, substitute:
4
(2)
The
WELS standard must require the products to be registered for
5
the purposes of specified supplies of the product.
6
(3)
The
WELS standard may require one or more of the following:
7
(a) that the products comply with specified minimum water
8
efficiency requirements for the purposes of specified supplies
9
of the product;
10
(b) that the products comply with specified minimum general
11
performance requirements for the purposes of specified
12
supplies of the product;
13
(c) that the products comply with one or more requirements
14
relating to plumbing imposed by or under a law of a State or
15
Territory, as in force from time to time;
16
(d) that a specified type of person or body certifies that the
17
products comply with one or more requirements relating to
18
plumbing imposed by or under a law of a State or Territory,
19
as in force from time to time;
20
(e) that the products be WELS-labelled for the purposes of
21
specified supplies of the product.
22
23
Schedule 3 Other amendments
Part 3 Application and transitional provisions
32 Water Efficiency Labelling and Standards Amendment (Scheme Enhancements) Bill
2012 No. , 2012
Part 3--Application and transitional provisions
1
21 Application of amendments
2
(1)
The amendment made by item 9 of this Schedule applies in relation to
3
determinations made after the commencement of that item.
4
(2)
The amendment made by item 14 of this Schedule applies in relation to
5
a reviewable decision made after the commencement of that item.
6
(3)
The amendment made by item 20 applies in relation to WELS standards
7
made after the commencement of that item.
8
22 Transitional provision
9
Despite the repeal of section 21 of the Water Efficiency Labelling and
10
Standards Act 2005 by item 11 of this Schedule, the Commonwealth
11
Secretary continues to be the Regulator after the commencement of that
12
item until a designation is made under section 21 of that Act as in force
13
after that commencement.
14

 

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