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


WATER EFFICIENCY LABELLING AND STANDARDS BILL 2005

                 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




                                      i
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 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. 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 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. 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 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. 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 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 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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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 20 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. 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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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 26 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. 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 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. 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 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. 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 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. 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 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. 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 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. 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 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. 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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. 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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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. 40 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 9--WELS Inspectors s. 57 (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 41 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 9--WELS Inspectors s. 59 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. 42 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 9--WELS Inspectors s. 59 (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 43 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 9--WELS Inspectors s. 59 (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 44 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 9--WELS Inspectors s. 60 (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. 45 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 9--WELS Inspectors s. 62 (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 46 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 9--WELS Inspectors s. 62A (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 47 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 9--WELS Inspectors s. 63 (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. __________________ 48 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 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. 49 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Part 10--Money 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. __________________ 50 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 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. 51 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. 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 52 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. 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. __________________ 53 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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. 54 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. 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. 55 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. 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. 56 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 57 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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, 16-17, 22, 24-27, 30, 40, 45-46, 51, 58-59, 61-62, 65-68, 72-73, 75-77 sections in State Act not included in 5A, 7A, 39A, 39B, 40A-40G, 46A, 62A sections not reproduced in State Act 5-6, 9, 11, 13-15, 18-19, 21, 64, 74 7, 27, 30 Commonwealth Minister 43, 73-74 Compensation 7, 12 Corresponding laws 7 Definitions Entry powers See Search and entry powers 7, 51, 55-57 Evidential material 27, 67-68 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 75-76 Minister Occupiers See WELS premises Offences and penalties by bodies corporate 7A by persons who have WELS information 60-62A definition of "offences against this Act" 7 definition of penalty unit 7 false, misleading information, documents 39B, 62A infringements 40-40G 58 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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 33-39A regarding WELS inspectors 46-46A, 51, 54 Registration applications 26-27 cancellation 31 conditions 27 duration 30 effect of changes to WELS standards on 30, 31 fees 27 grant, refusal to grant 28-29 review of decisions regarding 69-72 suspension 31 undertakings regarding compliance with conditions 42-43 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 65-68 functions 22 powers in general 23 powers regarding compensation 73 evidential material seized on WELS premises 55-57 infringement notices 40A, 40C injunctions 44 persons who have WELS information 60-62 publicising of offences 41 registration 26-31 undertakings 42-43 WELS inspectors 45-46 review of decisions by and of 70-72 sections in Commonwealth Act providing for 13-15, 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 51-54, 58-59 51, 55-57 Seizure Self-incrimination protection from 63 59 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

Water Efficiency Labelling and Standards Act 2004 Act No. Subject Section Supply attempted offences 39A definition 7 misuse of WELS standards and information 37-39 non-compliance with general performance requirements 36 non-compliance with minimum water efficiency requirements 35 registered products without WELS labelling 34 unregistered products 33 43-44, 73 Supreme Court Water-saving products (def.) 7 Water-use products (def.) 7 64-66 WELS Account WELS business premises See WELS premises WELS information misuse of, inconsistencies with standards 37-39 persons who have 7, 60-62A 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 49-50 entry with warrant to WELS premises 51-54, 58-59 infringement notices 40, 40B persons who have WELS information 61-62 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 13-15 WELS-labelled (def.) 7, 20 WELS premises definition 7 occupiers (def.) 7 occupiers' rights, duties regarding inspectors 48-50, 53-55 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 60 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

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 42-43 See also Registration; Supply 61 551214B.A1-25/2/2005 BILL LA AS SENT 25/2/2005

 


 

 


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