If you don’t meet the requirements of the Water Efficiency Labelling and Standards (WELS) scheme you may be subject to penalties, such as infringement notices.
Meeting the requirements of the WELS scheme includes registering products and labelling them with the correct water efficiency information.
Your obligations and our powers to enforce these requirements are established through legislation and associated standards.
Penalties and enforcement actions are detailed in the Water Efficiency Labelling and Standards Act 2005 and the Water Efficiency Labelling and Standards Determination 2013 (No. 2).
Check the legislation and read the information on this page to understand:
- notices and enforcement actions you may be subject to under the WELS Act
- civil penalties and criminal offences under the WELS Act
- your rights and obligations when subject to these penalties and enforcement actions.
Enforcement actions
There are a range of enforcement tools available to the WELS Regulator under the WELS Act.
The WELS Regulator will use a risk-based approach to decide which actions are appropriate, in accordance with our Compliance and Enforcement Policy.
Civil penalties for contraventions under the WELS Act are up to $18,780 per contravention for an individual and up to $93,900 per contravention for a corporation. The penalty amount permitted in an infringement notice is one-tenth of the maximum that a court could impose as a penalty for that contravention.
Registration of your products may be cancelled or suspended under Section 15 of the WELS Determination if you do not:
- retain copies of all documents included in the application for registration for 2 years after the registration has ended, and make the documents available on the Regulator’s request
- notify the Regulator that the product has been altered in a way that affects the performance of the product, including water consumption and or compliance with the Australian Standard 6400:2016.
Registration of your products may also be cancelled or suspended under Section 15 of the WELS Determination if information provided in an application for registration of a product:
- was not accurate at the time of the application
- is no longer accurate, for example as a result of changes to the product.
A decision to cancel or suspend the registration of a regulated product is a reviewable decision under Sections 69-72 of the WELS Act.
You may be required by the Regulator to conduct an audit of your compliance with the WELS Act. This may involve preparing an inventory of regulated products supplied by your business, including the registration status and labelling details of each product.
Compliance audit notices may require another person to undertake the audit, and may specify that the person undertaking the audit must meet requirements relating to qualifications and independence.
The Regulator may require you to demonstrate you have corrected any non-compliance identified in the audit report. The Regulator may also take additional enforcement actions, such as giving you a remedial action notice or applying penalties, in response to non-compliance identified in an audit report.
If you fail to comply with a compliance audit notice, you are committing a contravention that may attract a civil penalty.
Giving false or misleading information is an offence under Sections 137.1 and 137.2 of the Criminal Code. The maximum penalty (on conviction by a court) is 12 months imprisonment.
Remedial action notices are used by the Regulator to achieve higher rates of compliance with the WELS Act, without having to penalise non-compliant parties.
Actions you might be required to perform include:
- ceasing supply of regulated products that are unregistered or have an incorrect water rating label
- providing new labels or changing information on labels to make them compliant with the WELS Act and the Australian Standard 6400:2016
- setting up systems to ensure products you supply are registered and labelled in accordance with the WELS Act
- training staff about how to comply with the WELS Act.
If you fail to comply with a remedial action notice, you are committing a contravention that may attract an infringement notice or a civil penalty.
Giving false or misleading information is an offence under Sections 137.1 and 137.2 of the Criminal Code. The maximum penalty (on conviction by a court) is 12 months imprisonment.
Infringement notices are a common tool for addressing alleged breaches of the law. An infringement notice provides an alternative to proceedings for a civil penalty order or prosecution for certain criminal offences under the WELS Act.
You may be given an infringement notice specifying a penalty if the Regulator has reasonable grounds to believe that you have committed an offence or contravened a civil penalty provision.
If you pay the penalty amount, all liability in relation to the alleged contravention is discharged. This means the Regulator cannot seek prosecution or a civil penalty order in relation to that particular contravention.
If you do not pay the penalty amount in the specified timeframe or the infringement notice is withdrawn by the Regulator, we may undertake prosecution or proceedings for a civil penalty order.
The penalty amount permitted in an infringement notice is one-tenth of the maximum that a court could impose as a penalty for that offence.
Individuals — the maximum a court could impose is $18,780, whereas the maximum penalty that could be imposed by an infringement notice for the same contravention is $1,878.
Corporations — the maximum a court could impose for the same contravention is $93,900, whereas the maximum penalty that could be imposed by an infringement notice for the same contravention is $9,390.
Your rights and obligations when issued with an infringement notice are detailed in our Infringement Notice Statement.
Decisions by the WELS Regulator to give an infringement notice are made in keeping with our Compliance and Enforcement Policy.
An enforceable undertaking is a written agreement to take specific actions, given by a person to the WELS Regulator. This is used as a way to remedy an alleged breach of the WELS Act.
The Regulator will consider this agreement when deciding whether to pursue other enforcement options, such as civil penalties or criminal prosecution.
Enforceable undertakings are voluntary and binding for the party offering it. They are a fast and cost-effective option that can help you avoid other penalties.
Actions that typically form part of an enforceable undertaking include:
- auditing your compliance via an internal or independent audit
- setting up systems to ensure products you supply are registered and labelled in accordance with the WELS Act, including implementing a system for tracking products’ registration status
- delivering a compliance training program to staff
- acknowledging that the Regulator may make the undertaking publicly available and make public reference to it, including in news media statements.
If you breach any of the terms of an enforceable undertaking, the Regulator may apply to the Federal Court for an order that you comply or meet other requirements.
You may also be liable to pay the Regulator’s costs in these proceedings.
You can be given written notice from the Regulator to provide specified information and supporting evidence (e.g. books, records or documents) to a WELS inspector.
The requested information must be provided to the WELS inspector within the timeframe and manner specified in the notice. The time you will have to comply will be no shorter than 14 days after the notice is given.
If you do not comply with the requirements of the notice, you are committing an offence.
Refusal to provide requested information to the WELS inspector is an offence that carries a penalty of 6 months imprisonment.
Giving false or misleading information is an offence under Sections 137.1 and 137.2 of the Criminal Code Act 1995. The maximum penalty (on conviction by a court) is 12 months’ imprisonment.
You may be given a written notice from the Regulator requiring you to appear before a WELS inspector to answer questions or produce specified material (e.g. books, records or documents).
The requested appearance must occur within the timeframe and in the manner specified in the notice. The time you will have to comply will be no shorter than 14 days after the notice is given.
If you do not appear before the WELS inspector within the requirements of the notice, you are committing an offence.
Refusal to appear before the WELS inspector is an offence that carries a penalty of 6 months imprisonment.
Giving false or misleading information is an offence under Sections 137.1 and 137.2 of the Criminal Code Act 1995.The maximum penalty (on conviction by a court) is 12 months’ imprisonment.
If you are alleged to have contravened a civil penalty provision, the Regulator can apply for a court order requiring you to pay a penalty amount to the Commonwealth.
Civil penalties for contraventions under the WELS Act are up to $18,780 per contravention for an individual and up to $93,900 per contravention for a corporation. The penalty amount permitted in an infringement notice is one-tenth of the maximum that a court could impose as a penalty for that contravention.
If you have engaged, are engaging or are about to engage, in any conduct that would be an offence or contravention of the WELS Act, the Regulator may apply to a Court to seek an injunction.
The purpose of the injunction is to restrain you from engaging in the conduct (e.g. preventing you from supplying products).
Injunctions are particularly useful for:
- preventing further activity if a contravention has taken place
- restraining a person from engaging in the conduct, or
- requiring a person to do an act or thing.
Prosecution may be sought in response to offences contained in the WELS Act. A successful prosecution requires establishing the existence of each element of the offence beyond reasonable doubt.
Offences that attract strict liability do not require proof of 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.
Contraventions that can attract penalties or prosecution
If you don't meet requirements of the WELS Act you may be subject to civil penalties or criminal action.
Civil litigation may be initiated by the Regulator in response to breaches of civil penalty provisions contained in the WELS Act.
A lower standard of proof is required for civil litigation compared to a criminal prosecution. It is only necessary to establish that a contravention has occurred on the balance of probabilities.
Additionally, for strict liability offences, intent does not need to be established. There is no requirement to demonstrate the individual or corporation is at fault; it is sufficient to demonstrate that the offence occurred.
Penalty amounts are set in Section 4AA of the Crimes Act 1914. A single penalty unit is currently $313.
This applies where information provided in an application for registration is false or misleading, such as supplying a false test report or certificate.
It is already a criminal offence under the Criminal Code, and is identified as a civil penalty in the WELS Act.
Civil penalty: 60 penalty units.
This is a strict liability offence.
The supplier must be able to prove that the product was registered at the time of supply.
It is in your interest to provide early and full assistance to the Regulator, to identify registration details for a product in dispute.
The Regulator will attempt to establish whether a product is registered before bringing criminal or civil penalty proceedings, but is not required to prove to the court that a product is not registered.
Instead, it is up to the supplier to give evidence showing a reasonable possibility that the product is registered.
Criminal penalty: 60 penalty units.
Civil penalty: 60 penalty units.
This is a strict liability offence.
Any regulated product offered for supply must be labelled under Australian Standard 6400:2016.
‘Labelled’ not only refers to the use of a water rating label, but that the label meets the requirements of the standard such as:
- design and content of the label
- circumstances in which it is used (e.g. packaging and advertising materials).
Criminal penalty: 60 penalty units.
Civil penalty: 60 penalty units.
This is a strict liability offence.
You will be liable for this penalty if you supply products that do not meet the requirements in the water efficiency standard.
For example, you contravene this provision if a product has a star rating lower than the minimum set in the Australian Standard 6400:2016 and you supply that product anyway.
Criminal penalty: 60 penalty units.
Civil penalty: 60 penalty units.
This is a strict liability offence.
Performance tests, other than flow rate tests, are set in relevant Australian standards. All products regulated under the WELS scheme must meet the requirements of these tests before they are supplied.
It applies when you supply products that do not meet minimum performance requirements. For example, you contravene this provision if you supply a shower that does not distribute water evenly or a washing machine that does not remove soil adequately, in accordance with the relevant product standards.
Criminal penalty: 60 penalty units.
Civil penalty: 60 penalty units.
This is a strict liability offence.
It applies when you supply products in a way that does not reflect the requirements of Australian Standard 6400:2016, such as misrepresenting the standard in a product brochure or online advertisement.
For example, you contravene this provision if the standard uses between 0 and 6 stars to demonstrate efficiency, but your brochure claims that a product has a '10 star WELS rating'.
Criminal penalty: 60 penalty units.
Civil penalty: 60 penalty units.
This is a strict liability offence.
This offence and civil penalty provision is for labelling a product which is not included in the WELS scheme.
This penalty ensures that suppliers of non-regulated products (e.g. bidets or irrigation equipment) cannot:
- supply these products with what appears to be a WELS scheme water rating label
- incorrectly connect their product with the WELS scheme to gain a potential market advantage.
Criminal penalty: 60 penalty units.
Civil penalty: 60 penalty units.
This is a strict liability offence.
An example would be if you were displaying a product with additional labels or markings of a type that contradict the message of the approved label.
Criminal penalty: 60 penalty units.
Civil penalty: 60 penalty units.
This is a strict liability offence.
This offence has a corresponding civil penalty provision.
It applies if the WELS Regulator has given a notice to undertake an audit and you failed to carry out the audit as required.
The WELS Regulator may give a notice requiring you to undertake a compliance audit if the Regulator suspects, on reasonable grounds, that you have engaged, are engaging or are about to engage in conduct that is:
- an offence against the WELS Act
- a contravention of a civil penalty provision.
Penalties apply if you fail to undertake the audit as required in the notice.
Criminal penalty: 30 penalty units.
Civil penalty: 30 penalty units.
This is a strict liability offence and has a corresponding civil penalty provision.
It applies if the WELS Regulator has given an order to undertake remedial action and you failed to carry out the remedial action as required.
The WELS Regulator may give a notice requiring you to undertake remedial action if the Regulator suspects, on reasonable grounds, that you have engaged, are engaging or are about to engage in conduct that is:
- an offence against the WELS Act
- a contravention of a civil penalty provision.
Penalties apply if you fail to undertake the remedial action as required in the notice.
Criminal penalty: 30 penalty units.
Civil penalty: 30 penalty units.
You may be given with a written notice requiring you to give specified information and supporting evidence (e.g. books, records or documents) to a WELS inspector.
An example may include the Regulator seeking information relating to the supply of regulated products.
Refusal to comply is a criminal offence.
Penalty: Imprisonment for six months.
You may be given with a written notice requiring you to appear before a WELS inspector to answer questions or produce specified material (e.g. books, records or documents).
Refusal to comply is a criminal offence.
Penalty: Imprisonment for six months.
With regards to all of the above mentioned contraventions and offences, a person has the right to refuse to answer a question, give information, or produce a document on the grounds 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 to a penalty.