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Water Efficiency Labelling and Standards (WELS) scheme

A joint government and industry program

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Compliance & enforcement

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The Commonwealth, State and Territory Water Efficiency Labelling and Standards (WELS) legislation provides an effective framework for conserving water by reducing demand through the provision of water efficiency information to purchasers of water-using products and promoting the adoption of efficient water-saving techniques.

Compliance by industry is vital to maintain integrity of the WELS scheme and also ensures consumers have confidence in the water rating label (i.e. the information on the label is true and correct).

The Department of Agriculture and Water Resources (the department) encourages suppliers of WELS products to act in accordance with their obligations under the WELS legislation through targeted communication and education activities, timely provision of information and advice, cooperative assistance and collaboration.

The approach to compliance with the WELS legislation is outlined in the WELS Compliance and Enforcement Policy October 2016.

WELS Compliance and Enforcement Policy October 2016 (PDF - 1.1 MB)
WELS Compliance and Enforcement Policy October 2016 (DOCX - 856 KB)

The department also has the ability to take enforcement action where there has been a breach of the WELS scheme.

Changes to compliance and enforcement

While the WELS scheme is supported by State and Territory legislation, most compliance and enforcement is taken under the Commonwealth legislation. The Commonwealth legislation imposes obligations on corporations and entities that are engaged in transactions across state or territory boundaries, or are involved in the import or export of WELS products.

On 23 July 2012, new compliance provisions in the Water Efficiency Labelling and Standards Act 2005 (Cth) (the WELS Act) came into effect. These include new civil penalties and criminal offences, as well as a range of new enforcement options in response to non-compliance.

Civil penalties and criminal offences under the WELS Act

The following civil penalties and criminal offences now apply under the WELS Act:

  • Providing false or misleading information or documents with an application for registration of a WELS product (Section 32A)
  • Supplying an unregistered WELS product (Section 33)
  • Supplying a WELS product that is not WELS-labelled (Section 34)
  • Supplying a WELS product required to be registered and required to comply with minimum water efficiency requirements which does not comply with those minimum water efficiency requirements (Section 35)
  • Supplying a WELS product required to be registered and required to comply with minimum general performance requirements. It is an offence not to comply with these minimum general performance requirements (Section 36)
  • Supplying a WELS product using the WELS standard or information included in a WELS standard for, or in relation to the supply, in a manner that is inconsistent with the standard (Section 37)
  • WELS-labelling products that are not WELS products (Section 37A)
  • Supplying a registered WELS product with a WELS label that is inconsistent with the information contained in the applicable WELS standard for the product (Section 38)
  • Failure to conduct an audit of compliance as required by the Regulator (Section 43A)
  • Failure to undertake remedial action as required by the Regulator (Section 43B)
  • Failure to give WELS information to WELS inspectors (Section 61), and
  • Failure to appear before a WELS inspector and failure to answer questions or provide materials (Section 62).

For more information please see:

Penalty units

Civil penalties attract either 30 or 60 penalty units.

Criminal offences attract either 30 or 60 penalty units or imprisonment.

The offences apply to both corporations and individuals (e.g. sole traders and partnerships). A penalty unit is defined at section 4AA of the Commonwealth Crimes Act 1914 and is currently $180 for an individual or $900 for a corporation, in accordance with s4B(3) of the Crimes Act 1914.

Prosecution, litigation and strict liability

Prosecution of a criminal offence requires establishing the existence of each element of the offence 'beyond reasonable doubt'. In comparison, litigation in response to breaches of a civil penalty provision requires a lower standard of proof, where it is only necessary to establish that a contravention has occurred 'on the balance of probabilities'.

Offences that are strict liability remove the need for the prosecution to prove fault by the corporation or individual accused of committing an offence. The only defence available against an offence attracting strict liability is the defence of mistake of fact.

Sections 6.1 and 9.2 of the Schedule of the Criminal Code Act 1995 describe strict liability and mistake of fact respectively.

Intent does not have to be established for civil penalties.

A civil penalty order cannot be made against a person for a contravention of a civil penalty provision if the person has been convicted of an offence (criminal) constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision. This is regardless of whether a civil penalty order has been made against the person in relation to the contravention.

Compliance and Enforcement Options under the WELS Act

The WELS Act includes a broad range of measures for managing suspected or confirmed instances of non compliance ranging from administrative measures, civil remedies and criminal penalties. These options include:

  • Prosecution (Criminal)
  • Litigation (Civil)
  • Cancelling or suspending registration (Section 31)
  • Infringement notices (Section 40)
  • Enforceable undertakings (Section 42 and 43)
  • Compliance audits (Section 43A)
  • Remedial action (Section 43B)
  • Injunctions (Section 44)
  • Civil penalty orders (Section 44A)
  • Giving WELS information to WELS inspectors (Section 61), and
  • Requiring a person to Appear before a WELS inspector (Section 62).

For more information see:

Multiple instances of showers supplied without flow controllers

4 May 2015

The WELS Regulator is concerned about the increased supply of non-compliant showers into the Australian market from manufacturers overseas. For more information please see the document below.

Multiple instances of showers supplied without flow controllers (PDF - 321.27 KB) | (DOCX - 36.69 KB)

Reinstatement of Registration of WELS Products - Bathroom & Kitchen Supplies Pty Ltd

6 February 2014

In December 2013, Bathroom & Kitchen Supplies Pty Ltd ceased trading and products registered under the Imperial brand, using licence number 0099, were not renewed and became unregistered on 22 January 2014.

The WELS Regulator has reinstated these registrations to permit the sale of these products that are currently in the supply chain.

If you have any products from other suppliers that have ceased trade, please contact the Department at WELS@agriculture.gov.au or 1800 218 478 and we will endeavour to assist you.

Notification of Cancellation of Registration of WELS Products - Chaoping Hardware

22 November 2013

The WELS Regulator has cancelled the registration of a number of WELS products, supplied by Chaoping Hardware, under section 15 of the Water Efficiency Labelling and Standards Determination 2013 (No.2). Refer to the attachment for the list of products to which this cancellation relates.

Cancelled registrations (PDF - 16.36 KB) | (DOCX - 30.88 KB)

In making this decision the Regulator was satisfied that information provided in the application for registration of those products:

  1. was not accurate at the time of the application; or
  2. is no longer accurate because changes have been made to the product.

Warrants

2013

March

WELS inspectors executed a warrant to enter a WELS premises in Tasmania on 19 March 2013 to determine compliance with the WELS Act.

Federal Court orders

2012

October

The Federal Court has found that a Perth company breached its obligations under Water Efficiency Labelling and Standards Act 2005 (WELS Act). Kaddle Pty Ltd - which trades under business names including Clever Bathrooms, PlumberLink and Faroe Imports - has been ordered to meet the breached obligations under an enforceable undertaking accepted 13 October 2011 and to pay the court costs of the WELS Regulator

Remedial Action Notices

2013

October

The WELS Regulator has issued a notice, under section 43B of the Water Efficiency Labelling and Standards Act 2005, to a Victorian company suspected by the WELS Regulator of supplying or proposing to supply, unregistered WELS products. The notice specified certain actions that must be completed to improve compliance with the WELS Act.

Before issuing a section 43B notice, the Regulator must:

  1. suspect on reasonable grounds that a person has, is, or proposes to engage in conduct that is either an offence or contravention of a civil penalty provision; and
  2. be satisfied that issuing the section 43B notice is in the public interest.

August

The WELS Regulator has issued a notice, under section 43B of the Water Efficiency Labelling and Standards Act 2005, to a New South Wales company suspected by the WELS Regulator of supplying or proposing to supply, unlabelled WELS products or of using the WELS standard, or information, in a manner that is inconsistent with the standard. The notice specifies certain actions that must be completed to improve compliance with the WELS Act.

Before issuing a section 43B notice, the Regulator must:

  1. suspect on reasonable grounds that a person has, is, or proposes to engage in conduct that is either an offence or contravention of a civil penalty provision; and
  2. be satisfied that issuing the section 43B notice is in the public interest.

Enforceable undertakings given to the WELS regulator

2010

December

A Queensland company has offered a business improvement plan aimed at improving Water Efficiency Labelling and Standards (WELS) compliance and providing awareness training to staff after the WELS Regulator determined that the company had failed to comply with WELS legislation at two of their business premises.

Testing products

A program is currently being developed to independently test WELS products for their claims against test reports submitted when products are registered. This testing regime is commonly referred to as 'check-testing'.

The program will involve independent testing of a range of models in each product category.

Contacts

Email

welscompliance@agriculture.gov.au

Phone:

free call within Australia on 1800 372 746 or +61 2 6272 5232 (international) 8:30am-5:00pm (Mon-Fri) AEDST

Fax:

02 6272 3027

Post:

Water Efficiency Labelling and Standards Section
Water Division
Department of Agriculture and Water Resources
GPO Box 858
CANBERRA ACT 2601

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