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This is a Bill, not an Act. For current law, see the Acts databases.
WATER EFFICIENCY LABELLING AND STANDARDS BILL 2004
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for the Environment)
Water
Efficiency Labelling and Standards Bill 2004
Contents
Page
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for the Environment)
Water Efficiency
Labelling and Standards Bill 2004
A Bill for
An Act to provide for water efficiency labelling and the making of water
efficiency standards, and for related purposes.
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Water Efficiency Labelling and Standards Act
2004.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
Note 4 This section differs from the Commonwealth Act, s
2.
The objects of this Act are as follows:
(a) to conserve water supplies by reducing water consumption;
(b) to provide information for purchasers of water-use and water-saving
products;
(c) to promote the adoption of efficient and effective water-use and
water-saving technologies.
Note The Commonwealth Act includes a provision binding the Crown.
The provision is unnecessary in the ACT (see Legislation Act,
s 121).
Note The Commonwealth Act includes a provision extending that Act to
every external territory other than Norfolk Island.
(1) To maintain consistent numbering between this Act and the
Commonwealth Act—
(a) if the Commonwealth Act contains a section that is not needed in this
Act—the provision number and heading to the section appearing in the
Commonwealth Act are included in this Act despite the omission of the body of
the section; and
(b) if this Act contains a section that is not included in the
Commonwealth Act—the section is numbered to maintain consistency in
numbering between sections common to both Acts.
(2) A provision number and heading mentioned in subsection (1) (a) form
part of this Act.
(3) If a provision of this Act (other than a section) is numbered
differently from the equivalent provision of the Commonwealth Act, the provision
of this Act may be referred to using the number of the equivalent provision of
the Commonwealth Act.
Note 1 A note appears under each heading of a kind mentioned in s
(1) (a) describing the omitted section of the Commonwealth Act.
Note 2 A note appears under each section of a kind mentioned in s
(1) (b) highlighting the non-appearance of an equivalent section in the
Commonwealth Act.
Note 3 This section does not appear in the Commonwealth
Act.
A note included in this Act is explanatory and is not part of this
Act.
Note 1 See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
Note 2 This section does not appear in the Commonwealth
Act.
6 Offences
against Act—application of Criminal Code etc
Other legislation applies to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct, intention,
recklessness and strict liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Note 3 This section differs from the Commonwealth Act, s
6.
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition
‘corresponding law—see section 12.’
means that the term ‘corresponding law’ is defined in that
section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
Note 3 This section differs from the Commonwealth Act, s 7. The
definitions in that section are located in the dictionary.
Part
3 National WELS
scheme
8 WELS
scheme to be national cooperative scheme
It is the intention of the Legislative Assembly that this Act form a part
of a cooperative scheme between the Commonwealth and the States and Territories
to provide for national water efficiency labelling and standards.
Note The Commonwealth Act includes a provision about the application
of that Act.
10 Relationship
to other territory laws
This Act is additional to, does not limit, and is not in substitution for,
any other territory law.
Note This section differs from the Commonwealth Act, s 10.
11 State
and territory laws may operate concurrently
Note The Commonwealth Act includes a provision allowing state and
territory laws to operate concurrently with that Act.
12 Meaning
of corresponding law
In this Act:
corresponding law means—
(a) the Commonwealth Act; or
(b) a corresponding State-Territory law within the meaning of the
Commonwealth Act, other than this Act.
Note 1 This section differs from the Commonwealth Act, s
12.
Note 2 See the Legislation Act, s 102 for the interpretation of
references in this Act to other laws.
13 Commonwealth
consent to conferral of functions etc on regulator or inspectors by
corresponding laws
Note The Commonwealth Act, s 13 provides Commonwealth consent to the
giving of functions or powers, or the imposing of duties, on the regulator or
WELS inspectors by corresponding State-Territory laws.
14 How
duty is imposed by corresponding laws
Note The Commonwealth Act, s 14 deals with the imposing of duties on
the regulator or WELS inspectors by corresponding State-Territory
laws.
15 When
a corresponding State-Territory law imposes a duty
Note The Commonwealth Act, s 15 provides a definition of the term
imposes a duty for that Act, s 13 and s 14.
16 No
doubling-up of liabilities
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 relation to the same conduct.
Note The Commonwealth Act, s 16 also includes a provision preventing
a person being punished for an offence against this Act and the Commonwealth
Act. The provision is unnecessary in the ACT (see Legislation Act, s
191).
17 Review
of decisions under Act
(1) Application may be made to the Commonwealth administrative appeals
tribunal for review of a reviewable decision if the decision is declared by
regulation under the Commonwealth Act to be a reviewable State-Territory
decision for the Commonwealth Act, section 17.
(2) The Commonwealth Administrative Appeals Tribunal Act (other than part
4A) applies as a territory law in relation to reviewable State-Territory
decisions.
(3) For this section, a reference in a provision of the Commonwealth
Administrative Appeals Tribunal Act (as that provision applies as a territory
law) to all or any part of that Act, part 4A is taken to be a reference to all
or any part of that part as it has effect as a law of the
Commonwealth.
Note 1 A reference to the Commonwealth Administrative Appeals
Tribunal Act includes a reference to any regulation in force under that Act from
time to time (see Legislation Act, s 102 and s 104).
Note 2 This section differs from the Commonwealth Act, s
17.
Part
4 WELS products and WELS
standards
Note The Commonwealth Act, s 18 allows the Commonwealth Minister to
determine that water-use or water-saving products are WELS products and set out
the WELS standard for the products.
Note The Commonwealth Act, s 19 states what must be set out in WELS
standards and allows WELS standards to require products to be registered, and
registered products to be WELS-labelled, for the purposes of specified supplies
of the product.
20 Meaning
of WELS-labelled
(1) A product is WELS-labelled if it is labelled in
accordance with requirements set out in the WELS standard for products of that
kind.
(2) The requirements may relate to 1 or more of the following:
(a) the characteristics, contents, placement and quality of labels
attached to products or displayed on product packaging;
(b) documents or other material used for, or provided in relation to, the
supply of the product;
(c) advertising the product.
Note The Commonwealth Act, s 21 appoints the Secretary of the
Commonwealth department that deals with the matters to which the Commonwealth
Act relates as the regulator.
22 Functions
of regulator
The regulator has the following functions:
(a) to administer the WELS scheme;
(b) to undertake or commission research in relation to water-use and
water-saving products;
(c) to provide advice in relation to determining that water-use or
water-saving products are WELS products;
(d) to undertake or commission research in relation to WELS
standards;
(e) to assist in the development of WELS standards;
(f) to provide information and advice to the Minister about the operation
of WELS standards;
(g) to provide information and advice about the operation of the WELS
scheme to—
(i) the Minister; and
(ii) the chief executive; and
(iii) the public;
(h) to undertake or commission research in relation to the effectiveness
of WELS standards in reducing water usage;
(i) any other functions given to the regulator under this Act or any other
law.
Note This section differs from the Commonwealth Act, section
22.
Note The Commonwealth Act, s 23 gives the regulator powers to carry
out the regulator’s functions. The provision is unnecessary in the ACT
(see Legislation Act, s 196).
24 Arrangements
with other agencies
The regulator may make an arrangement with an administrative unit,
territory authority or territory instrumentality for the services of officers or
employees of the agency to be made available to assist the regulator in the
exercise of the functions of the regulator.
Note This section differs from the Commonwealth Act, s 24.
(1) The regulator may delegate the regulator’s functions under this
Act to any of the following:
(a) a public employee;
(b) an officer or employee of a Commonwealth agency;
(c) an officer or employee of an agency of a State or another
Territory.
Note For the making of delegations and the exercise of delegated
functions, see the Legislation Act, pt 19.4.
(2) However, the regulator must not delegate a function under subsection
(1) to a public employee without the Territory’s agreement.
(3) In exercising a function under a delegation, the delegate must comply
with any directions of the regulator.
Note This section differs from the Commonwealth Act, s
25.
Part
6 Registration of WELS
products
26 Applying
for registration
(1) The manufacturer of a WELS product may apply in writing to the
regulator for registration of the product.
Note 1 A WELS standard may require products to be registered for the
purposes of specified supplies (see Commonwealth Act, s 19 (2)). It is an
offence to supply an unregistered product if the product is required to be
registered for the purposes of the supply (see this Act, s 33).
However, if a WELS standard permits a product to be registered for the
purposes of specified supplies and such a product is registered despite not
being required to, WELS-labelling requirements may apply (see Commonwealth Act,
s 19 (4)). It is an offence to supply a product that is not WELS-labelled if
WELS-labelling requirements apply (see this Act, s 34).
Note 2 The Criminal Code, pt 3.4 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 subsection (1) and
section 31 (3) (b) if the person would be taken to be the
manufacturer of the product for the Commonwealth Act, section 26 (1)
and section 31 (3) (b).
Note This section differs from the Commonwealth Act, s 26.
27 Documentation
etc to be provided with application for registration
(1) An application for registration of a WELS product must be made in the
manner and form specified in a written determination by the Commonwealth
Minister under the Commonwealth Act, section 27 (1) and must be
accompanied by—
(a) any documentation (including test results and sample labels) specified
in the determination; and
(b) any registration fee specified in the determination.
(2) A determination mentioned in subsection (1) may also specify
conditions that must be complied with for a product to remain
registered.
Note This section differs from the Commonwealth Act, s 27.
28 Registration
of products
(1) If—
(a) an application is made for registration of a WELS product;
and
(b) the regulator does not refuse to register the product under
section 29;
the regulator must, by notice published in the Commonwealth gazette,
register the product.
(2) The regulator must give the applicant written notice of the
registration or refusal.
(3) The regulator is taken to have refused to register the product if, at
the end of the 3-month period beginning on the day the application is
made—
(a) a notice registering the product has not been published in the
Commonwealth gazette; and
(b) the applicant has not been notified, under subsection (2), that
the regulator has refused to register the product.
29 Grounds
for refusing to register
The regulator may refuse to register a WELS product if—
(a) the application is not made in accordance with the applicable
determination under the Commonwealth Act, section 27 (1); or
(b) the regulator is not satisfied that all of the information provided in
the application is accurate; or
(c) the product does not satisfy a minimum water efficiency or minimum
general performance requirement that the product is required to satisfy by the
WELS standard for products of that kind.
30 Period
of registration
(1) Unless subsections (2) and (3) apply, a WELS product that is
registered remains registered until the first of the following
happens:
(a) the registration is cancelled or suspended under
section 31;
(b) the 5-year period beginning on the day the product is registered
ends.
(2) Subsection (3) applies to a WELS product if—
(a) the product is registered under a WELS standard (the first WELS
standard); and
(b) the first WELS standard is replaced.
(3) The product mentioned in subsection (2) remains registered under the
first WELS standard until the first of the following happens:
(a) the product is registered under a WELS standard other than the first
WELS standard;
(b) the 1-year period beginning on the day the first WELS standard was
replaced ends.
(4) If the Commonwealth Minister, in writing, determines that, for
specified purposes, the 1-year period mentioned in the Commonwealth Act, section
30 (2) (d) is extended by a further specified period, the 1-year period
mentioned in subsection (3) (b) is extended for the same purposes by the same
further period.
Note This section differs from the Commonwealth Act, s 30.
31 Cancelling
or suspending registration
(1) The regulator may, by notice published in the Commonwealth gazette,
cancel or suspend the registration of a WELS product if—
(a) registration conditions are not complied with
(see section 27 (2)); or
(b) the regulator is satisfied that information provided in the
application for registration of the product—
(i) was not accurate at the time of the application; or
(ii) is no longer accurate because changes have been made to the
product.
(2) If the regulator cancels or suspends the registration of a WELS
product under subsection (1), the regulator must give written notice of the
cancellation or suspension to the person on whose application the product was
registered.
(3) The regulator must, by notice published in the Commonwealth gazette,
cancel the registration of a WELS product if—
(a) the WELS standard included in the most recent determination made under
the Commonwealth Act, section 18 (1) that relates to products of that kind
does not require the product to be registered; and
(b) the manufacturer on whose application the product was registered makes
a written request to the regulator for the registration to be
cancelled.
Part
7 Offences relating to supply of WELS
products
Division
7.1 Applicable WELS
standards
32 Meaning
of applicable WELS standard
(1) The applicable WELS standard for a WELS product
that is registered is the WELS standard under which the product is
registered.
(2) The applicable WELS standard for a WELS product
that is not registered is the WELS standard included in the most recent
determination made under the Commonwealth Act, section 18 (1) that relates
to products of that kind.
Division
7.2 Registration and
labelling
33 Registration
requirement
(1) A person commits an offence if—
(a) the person supplies a WELS product; and
(b) the applicable WELS standard requires the product to be registered for
the purposes of the supply; and
(c) the product is not registered.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
34 Labelling
registered products
(1) A person commits an offence if—
(a) the person supplies a WELS product; and
(b) the product is registered; and
(c) the applicable WELS standard requires registered products to be
WELS-labelled for the purposes of the supply; and
(d) the product is not WELS-labelled.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
Division
7.3 Minimum efficiency and performance
requirements
35 Minimum
water efficiency—products required to be registered
(1) A person commits an offence if—
(a) the person supplies a WELS product; and
(b) the applicable WELS standard requires the product—
(i) to be registered for the purposes of the supply; and
(ii) to comply with minimum water efficiency requirements for the purposes
of the supply; and
(c) the product does not comply with those minimum water efficiency
requirements.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
36 Minimum
general performance—products required to be
registered
(1) A person commits an offence if—
(a) the person supplies a WELS product; and
(b) the applicable WELS standard requires the product—
(i) to be registered for the purposes of the supply; and
(ii) to comply with minimum general performance requirements for the
purposes of the supply; and
(c) the product does not comply with the minimum general performance
requirements.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
Division
7.4 Misuse of WELS standards and
offences about information
37 Misuse
of WELS standards and information
(1) A person commits an offence if the person—
(a) supplies a WELS product; and
(b) uses a WELS standard, or information included in a WELS standard, for,
or in relation to, the supply of the product; and
(c) uses the standard, or information, in a way that is inconsistent with
the standard.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
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
(1) A person commits an offence if—
(a) the person uses information for, or in relation to, the supply of a
WELS product; and
(b) the information is inconsistent with the information contained in the
applicable WELS standard for the product.
Maximum penalty: 60 penalty units.
(2) An offence against this section is a strict liability
offence.
Note Section 39 sets out circumstances in which information is
used for, or in relation to, the supply of a product.
39 Using
information in supply of products
(1) For section 37 and section 38, information is used for, or in
relation to, the supply of a product if the information is given on, or
by—
(a) a label attached to the product; or
(b) the packaging in which the product is supplied; or
(c) any document or other material used for, or provided in relation to,
the supply of the product; or
(d) any advertising that relates to the product.
(2) Subsection (1) does not limit the general meaning of words used
in section 37 and section 38.
Part
8 Other enforcement
provisions
Division
8.1 Infringement
notices
Note The Commonwealth Act includes a provision authorising the
regulations to provide for infringement notices. The provision is unnecessary
in the ACT (see Magistrates Court Act 1930, pt 3.8).
Division
8.2 Publicising
offences
41 Regulator
may publicise offences
(1) The regulator may publicise, in any way the regulator considers
appropriate, an offence against this Act for which a person has been
convicted.
(2) This section does not—
(a) limit the regulator’s powers to publicise an offence against
this Act; or
(b) prevent anyone else from publicising an offence against this Act;
or
(c) affect any obligation (however imposed) on anyone to publicise an
offence against this Act.
Division
8.3 Enforceable
undertakings
42 Acceptance
of undertakings
(1) The regulator may accept a written undertaking given by a person in
relation to a matter relating to—
(a) complying with a WELS standard; or
(b) complying with a registration condition (see section 27
(2)).
(2) The person may withdraw or vary the undertaking at any time, but only
with the regulator’s consent.
43 Enforcement
of undertakings
(1) If the regulator considers that a person who gave an undertaking under
section 42 has breached any of its terms, the regulator may apply to the
Supreme Court for an order under subsection (2).
(2) If the Supreme Court is satisfied that the person has breached the
undertaking, the court may make 1 or more of the following orders:
(a) an order directing the person to comply with the undertaking or any
provision of the undertaking;
(b) an order directing the person to pay to the Territory an amount up to
the amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to
compensate anyone else who has suffered loss or damage as a result of the
breach;
(d) any other order that the court considers appropriate.
Note The Commonwealth Act, s 43 gives a similar power to enforce
undertakings to the Federal Court.
(1) If a person has engaged, is engaging or is proposing to engage in
conduct that was, is or would be an offence against this Act, the Supreme Court
may, on the regulator’s application, grant an injunction—
(a) restraining the person from engaging in the conduct; or
(b) requiring the person to do anything.
(2) On an application, the Supreme Court may grant an injunction by
consent of all parties to the proceeding, whether or not the court is satisfied
that the person has engaged, is engaging or is proposing to engage in any
conduct that was, is or would be an offence against this Act.
(3) The Supreme Court may grant an interim injunction pending its decision
on an application.
(4) The Supreme Court must not require the regulator or anyone else to
give an undertaking about damages as a condition of granting an interim
injunction.
(5) The Supreme Court may discharge or amend an injunction it has
granted.
(6) The power to grant or amend an injunction restraining a person from
engaging in conduct may be exercised—
(a) whether or not it appears to the Supreme Court that the person intends
to engage again, or to continue to engage, in the conduct; and
(b) whether or not the person has previously engaged in the
conduct.
(7) The power to grant or amend an injunction requiring a person to do
anything may be exercised—
(a) whether or not it appears to the Supreme Court that the person intends
to fail again, or to continue to fail, to do the thing; and
(b) whether or not the person has previously failed to do the thing and
whether or not there is an imminent danger of substantial damage to anyone if
the person fails to do the thing.
Note The Commonwealth Act, s 44 gives a similar power to grant
injunctions to the Federal Court.
Division
9.1 Appointment of WELS
inspectors
45 Regulator
may appoint WELS inspectors
(1) The regulator may, in writing, appoint any of the following as a WELS
inspector:
(a) a public employee;
(b) an officer or employee of a Commonwealth agency.
(2) However, the regulator must not appoint a public employee as a WELS
inspector without the Territory’s agreement.
(3) A WELS inspector must comply with any direction of the regulator in
exercising the inspector’s functions.
Note 1 The Criminal Code, pt 3.8 provides offences in relation to
causing harm to, and impersonation and obstruction of, a territory public
official.
Note 2 This section differs from the Commonwealth Act, s
45.
(1) The regulator must issue an identity card to each WELS
inspector.
(2) The identity card must—
(a) be in the form prescribed by the regulations made under the
Commonwealth Act; and
(b) contain a recent photograph of the WELS inspector.
(3) A person commits an offence if—
(a) the person has been issued with an identity card; and
(b) the person ceases to be a WELS inspector; and
(c) the person does not return the person’s identity card to the
regulator as soon as practicable.
Maximum penalty: 1 penalty unit.
(4) An offence against this section is a strict liability
offence.
(5) A WELS inspector must carry his or her identity card at all times when
exercising functions as a WELS inspector.
(6) A WELS inspector is not entitled to exercise any functions under this
part in relation to premises if—
(a) the occupier of the premises has required the WELS inspector to
produce his or her identity card for inspection by the occupier; and
(b) the WELS inspector fails to comply with the requirement.
Note This section differs from the Commonwealth Act, s 46.
Division
9.2 Powers of WELS
inspectors
47 Purposes
for which functions can be exercised
A WELS inspector may exercise the functions set out in this
division—
(a) to decide whether a person is complying with this Act; or
(b) to investigate a possible offence against this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
48 Inspection
powers—public areas of WELS business premises
(1) For the purposes set out in section 47, a WELS inspector may do
1 or more of the following in a public area of WELS business premises when
the premises are open to the public:
(a) inspect WELS products;
(b) buy any WELS product that is available for sale;
(c) inspect or collect written information, advertising or any other
document that is available, or made available, to the public;
(d) discuss product features with anyone;
(e) observe practices relating to the supply of products.
(2) Subsection (1) does not affect any right of the occupier of the
premises to refuse to allow a WELS inspector to enter, or remain on, the
premises.
49 Inspection
powers—with consent
(1) A WELS inspector may enter WELS premises and exercise the powers set
out in subsection (3) if the occupier of the premises consents to the entry
and the exercise of the powers.
(2) Before obtaining consent, the WELS inspector must tell the occupier
that the occupier may refuse consent, or withdraw consent at any time.
(3) For the purposes set out in section 47, a WELS inspector who
enters WELS premises in accordance with subsection (1) may do 1 or more of
the following:
(a) search the premises and anything (including a vehicle) on the
premises;
(b) inspect, examine, take measurements of or conduct tests on anything on
the premises;
(c) take photographs, make video or audio recordings or make sketches of
the premises or anything on the premises;
(d) inspect any book, record or document on the premises;
(e) take extracts from or make copies of any book, record or document on
the premises;
(f) take onto the premises the equipment and materials that the WELS
inspector reasonably needs to exercise 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 1 or more WELS products.
50 Refusing
consent not an offence
The occupier of WELS premises does not commit an offence
if—
(a) the occupier refuses to allow a WELS inspector to enter, or remain on,
the premises; and
(b) the WELS inspector does not have a warrant to enter the
premises.
51 Inspection
powers—with warrant
(1) A WELS inspector may enter WELS premises and exercise the powers set
out in subsection (2) if the WELS inspector has a warrant for the
entry.
Note Div 9.3 deals with applications for warrants.
(2) For the purposes set out in section 47 (Purposes for which
functions can be exercised), a WELS inspector who enters WELS premises under
warrant may do 1 or more of the following:
(a) exercise 1 or more of the functions set out in section 49 (3)
(Inspection powers—with consent);
(b) require anyone on the premises to—
(i) answer any questions put by the WELS inspector; and
(ii) produce any book, record or document requested by the WELS
inspector;
(c) seize or secure any evidential material on the premises.
(3) A person commits an offence if—
(a) the person is required to answer a question or produce a book, record
or document under subsection (2) (b); and
(b) the person does not answer the question or produce the book, record or
document.
Maximum penalty: 60 penalty units.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
(4) An offence against this section is a strict liability
offence.
Note This section differs from the Commonwealth Act, s 51.
52 Announcement
before entry under warrant
(1) A WELS inspector must, before entering WELS premises under a
warrant—
(a) announce that the inspector is authorised to enter the premises;
and
(b) give anyone on the premises an opportunity to allow entry to the
premises.
(2) A WELS inspector is not required to comply with subsection (1) if
the inspector believes on reasonable grounds that immediate entry to the
premises is required to ensure that the effective execution of the warrant is
not frustrated.
53 Copy
of warrant to be given to occupier
(1) If a warrant in relation to WELS premises is being executed and the
occupier of the premises is present at the premises, the WELS inspector
must—
(a) give a copy of the warrant to the occupier; and
(b) identify himself or herself to the occupier.
(2) The copy of the warrant does not need to include the signature of the
magistrate who issued the warrant.
54 Occupier
must provide inspector with facilities and assistance
(1) A person commits an offence if—
(a) the person is the occupier of WELS premises; and
(b) a WELS inspector enters the premises under a warrant; and
(c) the person does not provide the WELS inspector with all reasonable
facilities and assistance for the effective execution of the warrant.
Maximum penalty: 30 penalty units.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
(2) An offence against this section is a strict liability
offence.
55 Seizing
or securing evidential material
(1) If a WELS inspector seizes or secures evidential material on WELS
premises, the WELS inspector must give the occupier of the premises a receipt
for the material.
(2) The regulator may make copies of the material.
(3) The regulator may examine or test the material, even though that might
result in damage or destruction of the material or a reduction in its
value.
(4) The regulator must return or release the material when the first of
the following happens:
(a) the material is no longer needed for the purposes for which it was
seized or secured;
(b) the 90-day period beginning on the day the material was seized or
secured ends.
56 Keeping
evidential material for longer than 90 days
(1) The regulator may apply to the Magistrates Court for an order allowing
evidential material to be kept by the regulator for a period longer than the
90-day period mentioned in section 55 (4) (b).
(2) If the Magistrates Court makes an order, the regulator may keep the
evidential material for the period allowed under the order.
(3) In deciding the application, the Magistrates Court must allow the
owner of the evidential material to appear and be heard.
(4) The Magistrates Court must not make an order allowing the evidential
material to be kept for a longer period unless it is satisfied that the order is
necessary for the purposes of prosecuting an offence against this Act.
57 Returning
evidential material
If the regulator cannot, despite making reasonable efforts, find the owner
of evidential material, the regulator may dispose of the material as the
regulator considers appropriate.
Division
9.3 Applying for warrants to enter
WELS premises
(1) A WELS inspector may apply to a magistrate for a warrant under this
section for WELS premises.
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by evidence on oath, that there are reasonable grounds for suspecting that there
is, or there may be within the next 72 hours, evidential material in or on the
premises.
(3) However, the magistrate may issue the warrant only if the
WELS inspector or someone else has given the magistrate, either orally or
by affidavit, the further information (if any) that the magistrate requires
about the grounds on which the issue of the warrant is being sought.
(4) The warrant must—
(a) name 1 or more WELS inspectors; and
(b) authorise the named WELS inspectors to enter the premises using any
necessary and reasonable assistance and force; and
(c) state whether the entry is authorised to be made at any time of the
day or night or during stated hours of the day or night; and
(d) state the day (not later than 1 week after the day the warrant is
issued) when the warrant ceases to have effect; and
(e) state the purpose for which the warrant is issued.
Note This section differs from the Commonwealth Act, s 58.
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 apply to a magistrate by telephone, fax or other
electronic means for a warrant under section 58 for
WELS premises.
(2) The magistrate may—
(a) require communication by voice to the extent that it is practicable in
the circumstances; and
(b) make a recording of all or any part of the communication.
(3) Before applying for the warrant, the WELS inspector must prepare an
affidavit in relation to the premises stating the grounds on which the warrant
is sought.
(4) If it is necessary to do so, the WELS inspector may apply for the
warrant before the affidavit is sworn.
(5) If the magistrate is satisfied that there are reasonable grounds for
issuing the warrant, the magistrate may complete and sign the same warrant that
the magistrate would issue under section 58 if the application had been
made under that section.
(6) The magistrate may be satisfied that there are reasonable grounds for
issuing the warrant only after—
(a) having considered the terms of the affidavit; and
(b) having received the further information (if any) that the magistrate
requires about the grounds on which the issue of the warrant is being
sought.
(7) If the magistrate completes and signs the warrant—
(a) the magistrate must—
(i) tell the WELS inspector what the terms of the warrant are;
and
(ii) tell the WELS inspector the date and the time the warrant was signed;
and
(iii) tell the WELS inspector the day (not later than 1 week after the day
the magistrate completes and signs the warrant) when the warrant ceases to have
effect; and
(iv) record on the warrant the reasons for issuing the warrant;
and
(b) the WELS inspector must—
(i) complete a form of warrant in the same terms as the warrant completed
and signed by the magistrate; and
(ii) write on the form of warrant the name of the magistrate and the date
and time the warrant was signed.
(8) The WELS inspector must also, not later than the day after the day of
expiry or execution of the warrant, whichever is the earlier, send to the
magistrate—
(a) the form of warrant completed by the WELS inspector; and
(b) the affidavit mentioned in subsection (3), which must have been
properly sworn.
(9) When the magistrate receives the documents, the magistrate
must—
(a) attach them to the warrant that the magistrate completed and signed;
and
(b) deal with them as the magistrate would have dealt with the affidavit
if the application had been made under section 58.
(10) A form of warrant completed under subsection (7) is authority
for the same powers that are authorised by the warrant signed by the
magistrate.
(11) If—
(a) it is material, in a proceeding, for a court to be satisfied that an
exercise of a power was authorised by this section; and
(b) the warrant signed by the magistrate authorising the exercise of the
power is not produced in evidence;
the onus of proof is on the person relying on the lawfulness of the
exercise of the power to prove a warrant authorised the exercise of the
power.
Note This section differs from the Commonwealth Act, s 59.
Division
9.4 Giving WELS information to WELS
inspectors
60 Meaning
of person who has WELS information
A person is a person who has WELS information if the
regulator believes, on reasonable grounds, that the person can give information,
or produce a document, relevant for the purposes of investigating or preventing
an offence against this Act.
61 Regulator
may require person to give information
(1) The regulator may, by written notice, require a person who has WELS
information to give the WELS inspector stated in the notice, and in the way and
within the period stated in the notice—
(a) the information stated in the notice; or
(b) the document (if any) stated in the notice.
(2) The period stated in the notice must end not less than 14 days after
the day the notice is given to the person.
(3) The notice must set out the effect of the Criminal Code, section 338
(Giving false or misleading information) and, if relevant, section 339
(Producing false or misleading documents).
(4) A person commits an offence if—
(a) the person is required to give information or a document to a WELS
inspector by a notice under subsection (1); and
(b) the person does not give the WELS inspector the information or
document in accordance with the notice.
Maximum penalty: 60 penalty units.
(5) An offence against this section is a strict liability
offence.
Note This section differs from the Commonwealth Act, s 61.
62 Regulator
may require person to appear before WELS inspector
(1) The regulator may, by written notice, require a person who has WELS
information to appear before the WELS inspector stated in the notice, at a time
and place stated in the notice—
(a) to answer any questions put by the WELS inspector; and
(b) to produce to the WELS inspector the document (if any) stated in the
notice.
(2) The time stated in the notice must not be earlier than 14 days after
the day the notice is given to the person.
(3) The notice must set out the effect of the Criminal Code, section 338
(Giving false or misleading information) and, if relevant, section 339
(Producing false or misleading documents).
(4) A person commits an offence if—
(a) the person is required to appear before a WELS inspector by a notice
under subsection (1); and
(b) the person does not appear before the WELS inspector in accordance
with the notice.
Maximum penalty: 60 penalty units.
(5) A person commits an offence if—
(a) the person is required by a notice under subsection (1) to appear
before a WELS inspector; and
(b) when appearing before the WELS inspector, the person does
not—
(i) answer a question put by the WELS inspector; or
(ii) produce a document to the WELS inspector as required by the
notice.
Maximum penalty: 60 penalty units.
(6) An offence against this section is a strict liability
offence.
Note This section differs from the Commonwealth Act, s 62.
Division
9.5 Other enforcement
matters
63 Privilege
against self-incrimination not affected
Note The Commonwealth Act, s 63 preserves the privilege against
selfincrimination. This provision is unnecessary in the ACT. The Legislation
Act, s 170 and s 171 deal with the application of the privilege against
selfincrimination and client legal privilege.
63A Damage
etc to be minimised
(1) In the exercise, or purported exercise, of a function under this part,
a WELS inspector must take all reasonable steps to ensure that the inspector,
and anyone assisting the inspector, causes as little inconvenience, detriment
and damage as is practicable.
(2) If a WELS inspector, or a person assisting a WELS inspector, damages
anything in the exercise, or purported exercise, of a function under this part,
the inspector must give written notice of the particulars of the damage to the
person who the inspector believes, on reasonable grounds, is the owner of the
thing.
(3) If the damage happens on premises entered under this part in the
absence of the occupier, the notice may be given by securing it in a conspicuous
place on the premises.
Note This section does not appear in the Commonwealth Act.
63B Compensation
to be paid in certain circumstances
(1) A person may claim compensation from the Territory if the person
suffers loss or expense because of the exercise, or purported exercise, of a
function under this part by a WELS inspector or a person assisting a WELS
inspector.
(2) Compensation may be claimed and ordered in a proceeding
for—
(a) compensation brought in a court of competent jurisdiction;
or
(b) an offence against this Act brought against the person making the
claim for compensation.
(3) A court may order the payment of reasonable compensation for the loss
or expense only if satisfied it is just to make the order in the circumstances
of the particular case.
(4) A regulation may prescribe matters that may, must or must not be taken
into account by the court in considering whether it is just to make the
order.
Note This section does not appear in the Commonwealth
Act.
Division
10.1 WELS account
Note The Commonwealth Act, s 64 establishes the WELS
account.
65 Credits
to WELS account
(1) This section applies to—
(a) an amount received by the Territory for the purposes of the WELS
scheme; and
(b) an amount received by the Territory in connection with the exercise of
the regulator’s functions under this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
(2) The amount is held by the Territory on trust for the
Commonwealth.
Note This section differs from the Commonwealth Act, s
65.
66 Purpose
of WELS account
The purpose of the WELS account is to make payments—
(a) to further the objects of this Act (as set out in section 3) and those
of any corresponding law; and
(b) otherwise in connection with the exercise of the regulator’s
functions under this Act or a corresponding law.
Note This section differs from the Commonwealth Act, s 66.
Division
10.2 Charging fees and recovery of
amounts
67 Regulator
may charge for services
The regulator may charge fees for services provided by, or on behalf of,
the regulator in exercising the regulator’s functions under this
Act.
Note 1 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Note 2 This section differs from the Commonwealth Act, s
67.
The following amounts may be recovered in a court of competent jurisdiction
as debts owing to the Territory:
(a) fees payable to the Territory under this Act or a corresponding
law;
(b) amounts payable to the Territory in connection with the exercise of
the regulator’s functions under this Act.
Note This section differs from the Commonwealth Act, s
68.
Part
11 Review of
decisions
69 Meaning
of reviewable decision and affected person
(1) Each of the following decisions is a reviewable
decision:
(a) a decision by the regulator to refuse to register a WELS product under
section 29;
(b) a decision by the regulator to cancel or suspend the registration of a
WELS product under section 31.
(2) A person whose application to register a WELS product is refused under
section 29 is the affected person in relation to the
decision to refuse to register the WELS product.
(3) The person on whose application a WELS product was registered is the
affected person in relation to a decision to cancel or suspend
that registration under section 31.
70 Notification
of decisions and review rights
(1) The regulator must, as soon as practicable after making a reviewable
decision, give a written notice to the affected person in relation to the
decision.
(2) The notice must contain—
(a) the terms of the decision; and
(b) the reasons for the decision; and
(c) a statement setting out particulars of the person’s review
rights.
(3) A failure to comply with this section in relation to a decision does
not affect the validity of the decision.
(1) The affected person in relation to a reviewable decision (other than a
decision made by the regulator personally) may apply in writing to the regulator
for review (the internal review) of the decision.
(2) An application for internal review must be made within 30 days after
the day the decision first came to the notice of the applicant, or within the
further period (if any) that the regulator, either before or after the end of
that period, allows.
(3) The regulator must, on receiving an application, review the reviewable
decision personally.
(4) The regulator may—
(a) make a decision confirming, varying or revoking the reviewable
decision; and
(b) if the regulator revokes the decision, make any other decision the
regulator considers appropriate.
72 Review
of decisions by Commonwealth administrative appeals
tribunal
(1) Subject to the Commonwealth Administrative Appeals Tribunal Act, an
eligible person may apply under that Act for a review of—
(a) a reviewable decision made by the regulator personally; or
(b) an internal review decision made by the regulator under
section 71.
(2) An application under subsection (1) may be made only by the
affected person concerned.
Note This section differs from the Commonwealth Act, s
72.
73 Compensation
for damage to electronic equipment
(1) This section applies if—
(a) because of electronic equipment being operated as mentioned in
section 49—
(i) damage is caused to the equipment; or
(ii) data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption happens because—
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The regulator must pay the owner of the equipment, or the user of the
data or programs, the reasonable compensation for the damage or corruption
agreed on with the owner or user.
(3) If the regulator and the owner or user do not agree on the amount of
compensation, the owner or user may, by proceeding in a court of competent
jurisdiction, recover from the regulator the reasonable compensation that the
court decides.
(4) In deciding the amount of compensation payable, the court must have
regard to whether the occupier of the premises, or the occupier’s
employees and agents, if they were available at the time, provided any
appropriate warning or guidance on the operation of the equipment.
(5) This section is additional to section 63B (Compensation to be paid in
certain circumstances).
Note This section differs from the Commonwealth Act, s 73.
74 Compensation
for acquisition of property
(1) If—
(a) apart from this section, the operation of any provision of this Act
would result in the acquisition of property from a person otherwise than on just
terms; and
(b) the acquisition would be unlawful because of the Self-Government Act,
section 23 (1);
the Territory is liable to pay reasonable compensation to the person for
the acquisition.
(2) If the Territory and the person do not agree on the amount of
compensation, the person may, by proceeding in a court of competent
jurisdiction, recover from the Territory the reasonable compensation that the
court decides.
Note This section differs from the Commonwealth Act, s 74.
The Minister must present a copy of the annual report of the regulator on
the operation of the WELS scheme given to the Territory under the Commonwealth
Act, section 75 to the Legislative Assembly within 6 sitting days after the day
the Minister receives the report.
Note This section differs from the Commonwealth Act, s 75. 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 each participating State and Territory.
76 Review
of operation of WELS scheme
The Minister must present a copy of the report of the independent review of
the WELS scheme given to the Territory under the Commonwealth Act, section 76 to
the Legislative Assembly within 6 sitting days after the day the Minister
receives the report.
Note This section differs from the Commonwealth Act, s 76. That
section provides for an independent review of the operation of the WELS scheme
to be undertaken as soon as possible after the 5th anniversary of the
commencement of that Act. The Commonwealth Minister is required to give a copy
to each participating State and Territory.
77 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note A regulation must be notified, and presented to the
Legislative Assembly, under the Legislation Act.
(2) A regulation may create offences and fix maximum penalties of not more
than 30 penalty units for the offences.
Note This section differs from the Commonwealth Act, s
77.
(see s 7)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• administrative unit
• chief executive (see s 163)
• Commonwealth gazette
• document
• Executive
• exercise
• fail
• function
• in relation to
• Minister (see s 162)
• oath
• public employee
• swear
• territory authority
• territory instrumentality.
Note 3 Most of the definitions in this dictionary have equivalent
definitions in the Commonwealth Act, s 7.
affected person—see section 69 (2) and (3).
agency—
(a) in relation to the Commonwealth, includes the following:
(i) an Agency within the meaning of the Financial Management and
Accountability Act 1997 (Cwlth);
(ii) a corporation established for a public purpose under a law of the
Commonwealth; and
(b) in relation to a State or another Territory, includes the
following:
(i) a department of state (however described) of the State or
Territory;
(ii) a corporation established for a public purpose under a law of the
State or Territory.
applicable WELS standard—see section 32.
Commonwealth Act means the Water Efficiency Labelling and
Standards Act 2005 (Cwlth).
Commonwealth administrative appeals tribunal means the
Administrative Appeals Tribunal established under the Commonwealth
Administrative Appeals Tribunal Act.
Commonwealth Administrative Appeals Tribunal Act means the
Administrative Appeals Tribunal Act 1975 (Cwlth).
Commonwealth Minister—see the Commonwealth Act, section
7.
corresponding law—see section 12.
damage, in relation to data, includes damage by erasure of
data or addition of other data.
evidential material means anything that may be relevant to
the investigation or prosecution of an offence against this Act.
occupier, of premises, includes a person who apparently
represents the occupier of the premises.
person who has WELS information—see
section 60.
registered means registered under a WELS standard.
regulator means the Regulator established by the Commonwealth
Act, section 21.
reviewable decision—see section 69 (1).
supply means—
(a) supply for consideration; or
(b) offer to supply for consideration.
water-saving product means a device, appliance or fitting
that—
(a) is not a water-use product; and
(b) is designed to operate in place of a water-use product.
water-use product means a device, appliance or fitting
through which, or into which, water flows as part of its normal
operation.
WELS account—see the Commonwealth Act, section 7,
definition of WELS Account.
WELS business premises means WELS premises that are open to
the public on a regular basis.
WELS inspector means a person appointed under section 45
(1).
WELS-labelled—see section 20 (1).
WELS premises means premises used for, or in relation to, the
supply of 1 or more WELS products.
WELS product means a product that is a WELS product under the
Commonwealth Act, section 18 (1).
WELS scheme means the water efficiency labelling and
standards scheme established by this Act and corresponding laws.
WELS standard, for a WELS product, means the WELS standard
set out for the product in the determination applying to the WELS product under
the Commonwealth Act, section 18 (1).
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2004.
2 Notification
Notified under the Legislation Act on 2004.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2004
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