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Water Efficiency Labelling and Standards
(WELS) Scheme

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Compliance and enforcement

To date, WELS Scheme compliance and enforcement activities have focussed on educating industry about its legal obligations under the Water Efficiency Labelling and Standards Act 2005 (WELS Act).

Today compliance activities are underway with investigators in the field Australia-wide. Non-compliances against the WELS Act are being assessed and appropriate action is being taken.

All non-compliances with the WELS Scheme, including allegations, are assessed in accordance with the Compliance Enforcement Policy  of the Department of the Environment, Water, Heritage and the Arts.

WELS has a range of compliance responses at its disposal which escalate according to the severity of the non-compliance, or if non-compliant activity continues.

Generally, education and/or warnings are used in response to first and less serious non-compliances. This ensures that suspected offenders become aware of legislative requirements.

For serious or continuing non-compliances, enforcement powers under the WELS Act may be used.

Offences under the WELS Act

There are six offences under the WELS Act relating to the supply of WELS products:

• the product is not registered (section 33)
• the product is registered, but is supplied unlabelled, or without the appropriate water efficiency information in text form (section 34)
• the product does not comply with minimum water-efficiency standards (section 35)
• the product does not comly with minimum general performance standards (section 36)
• the product is supplied using the WELS standard, or information that is inconsistent with the standard (section 37) and
• the product is supplied using information that is inconsistent with the WELS standard for that product (section 38)

These offences all attract a penalty of 60 penalty units and are offences of strict liability. The offences apply to both corporations and individuals (e.g. sole traders and partnerships).

What is a penalty unit?

A penalty unit is defined at section 4AA of the Commonwealth Crimes Act 1914  and is $110. This amount is multiplied by five for a corporation.

What is strict liability?

Offences that attract 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.

Enforcement powers under the WELS Act

The deterrent sanctions available under the WELS Act are listed at Part 8 of the Act and are as follows:

• Enforceable undertaking
  An enforceable undertaking is a written undertaking between a WELS product supplier and the WELS Regulator, documenting that the supplier will undertake certain actions by a required date to become WELS compliant. The enforceable undertaking is made under section 42 of the WELS Act and if not complied with, the WELS Regulator may apply to the Federal Court for an order to enforce the undertaking.
• Injunction
  An injunction may be obtained to require a WELS product supplier to engage in certain conduct (e.g. to remove products from supply).
• Prosecution
  A request is made to the Commonwealth Director of Public Prosecutions for the supplier of the WELS product to be prosecuted in court.
• Penalty infringement notice
  A penalty infringement notice specifying a pecuniary penalty (a fine) may be issued by a WELS inspector if he or she has reasonable grounds to believe that a person has committed an offence. Payment of the fine is provided as an alternative to prosecution.
• The fine amount permitted in an infringement notice may be up to a maximum of one-fifth of the maximum that a court could impose as a penalty for that offence. For an offence by a corporation, the maximum penalty that could be imposed by a fine is $6600. The maximum a court could impose for the same offence is $33 000. For an offence by an individual, the maximum penalty that could be imposed by a fine is $1320. The maximum a court could impose for the same offence is $6600.
• The WELS Regulator issued a media release on 1 September 2008 regarding WELS inspectors being able to fine suppliers.

WELS inspectors

An Australia-wide network of WELS inspectors undertakes both random and targeted inspections.

WELS inspectors have numerous powers under the WELS Act, including searching WELS premises, taking photographs and securing evidential material.

Testing products

A program is currently being implemented to test WELS products for their claims against test reports submitted when products are registered. This testing regime is commonly referred to as ‘checktesting’.

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

When fully implemented, the program will target models that are attracting complaints, as well as those with high water efficiency ratings. As rebates apply for products with high star ratings, manufacturers are keen to include such models in their product lines to ensure their claims are valid.

Further information

For further information see:

• WELS Scheme inspectors: Their powers and your rights
• Questions to ask your supplier of WELS Scheme products
• Other WELS publications