Explanatory STatement
Issued by the Parliamentary Secretary for Sustainability and Urban Water
Water Efficiency Labelling and Standards Act 2005
Water Efficiency Labelling and Standards Determination 2011
The Water Efficiency Labelling and Standards Act 2005 (the Act) and the Water Efficiency Labelling and Standards Regulations 2005 establish a framework for mandating Water Efficiency Labelling and Standards (WELS) for a range of prescribed products. This legislation delivers important water conservation benefits by enabling consumers to choose between products on the basis of water efficiency. It also allows the setting of minimum water efficiency standards for water using products.
Subsection 18 (1) of the Water Efficiency Labelling and Standards Act 2005 (the Act) provides that the Commonwealth Minister may, by writing and in accordance with subsection 18 (4), determine that water-use or water-saving products of a specified kind are WELS products. Subsection 18 (2) of the Act specifies that a determination under subsection 18 (1) must set out or incorporate the WELS standard for those products.
Subsection 33 (3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.
The Water Efficiency Labelling and Standards Determination 2007 specifies the WELS products and defines Australian and New Zealand Standard AS/ NZS 6400:2005 (Incorporating Amendment Nos 1 and 2) Water efficient products – Rating and labelling Reissued incorporating Amendment No.3 as the WELS Standard. This 2011 WELS Determination (the Determination) repeals and replaces the 2007 WELS Determination. This Determination incorporates the more recent Amendments 4 and 5 as well as making WaterMark certification a requirement for WELS registration as the WELS standard.
Amendment 4 makes new requirements for cold-only connect clothes washing machines, amends other label wording, reinstates some requirements for urinals that had been unintentionally removed from the standard, and provides for low-pressure testing, registration and labelling of showers and taps intended for low-pressure use.
Amendment 5 introduces a requirement to display the water consumption of the dryer function of combination washer/dryers on labels and introduces a minimum Water Efficiency Standard for clothes washing machines (specifically, 3 stars for machines with a rated capacity of 5kg and over and 2.5 stars for machines of less than 5kg capacity).
WaterMark testing and certification is a state and territory requirement that ensures products are fit for use and will not threaten the safety of the reticulated water supply. WaterMark certification is required by state and territory laws at the point of installation, while WELS labelling is required before products can be offered for sale.
This determination includes all matters from the Water Efficiency Labelling and Standards Determination 2007 and repeals that determination. It also clarifies that second-hand WELS products are not subject to the WELS Scheme.
In accordance with subsections 19 (1) and 19 (2) of the Act, the WELS standard sets out the requirements for WELS products to be registered and establishes the criteria for rating and labelling products in relation to water efficiency and general performance. Subsection 19 (3) of the Act provides that the WELS standard may specify minimum water efficiency requirements and minimum general performance requirements. The WELS standard may also include additional requirements relating to plumbing under subsection 19 (3A) and require registered products to be WELS-labelled for the purpose of specified supplies of the product, under subsection 19 (4) of the Act.
Section 27 of the Act provides that the Commonwealth Minister may determine how an application for registration is to be made and the conditions that must be met to maintain registration (including documentary requirements and fees).
Subsection 30 (2) of the Act provides that existing registrations under the superseded WELS standard will expire twelve months after the introduction of a new or revised WELS standard. Subsection 30 (3) of the Act provides that the Minister may extend that minimum twelve month period in a determination.
Section 1 of the Determination provides that the name of the Determination is the Water Efficiency Labelling and Standards Determination 2011.
Section 2 of the Determination provides that the Determination takes effect on 1 November 2011.
Section 3 repeals the Water Efficiency Labelling and Standards Determination 2007.
Section 4 provides definitions for “the Act”, “AS/NZS 6400”, “clothes washing machine”, “Plumbing Code”, “set of minor products” and “WELS standard”.
Section 5 defines water use or water saving products as WELS products if the WELS standard applies to them.
Section 6 provides that for subsection 18 (2) of the Act, the WELS standard for WELS products incorporates by reference the Australian and New Zealand Standard
AS/NZS 6400:2005 (Incorporating Amendment Numbers 1 through to 5) Water efficient products—Rating and labelling), excluding C.3, C.4, C.5 and C.6 of Appendix C. Sections C.3-C.6 have been excluded as it is not intended that the WELS Scheme enforce registration requirements in the used whitegoods market. The WELS standard also includes additional requirements outlined in section 7 of the Determination.
Section 7
Subsection 1 provides that for subsection 19 (2) of the Act, WELS products except flow controllers must be registered for supply as a new product for any purpose. Registration of flow controllers continues to be on a voluntary basis.
Subsection 2 provides that for subsection 19 (3A) of the Act, showers, lavatory equipment, urinal equipment, tap equipment and flow controllers that are covered by the WELS standard must comply with Section G of the Plumbing Code. Evidence of compliance with Section G of the Plumbing Code is by certification by WaterMark.
The words “may be used or installed in a plumbing installation” come from Section G of the Plumbing Code. It is intended that this Determination makes WaterMark Certification a requirement for WELS registration, but only to the extent that WaterMark Certification is required by the states and territories through the Plumbing Code. For example, the Plumbing Code applies to products that are connected to the reticulated water supply system, rather than those in an isolated water system for a single household. Thus WaterMark Certification is not required for WELS registration of products that are for use solely in a non-reticulated system.
Subsection 3 provides that for the purposes of subsection 19 (4) of the Act, a registered WELS product must be WELS-labelled for supply as a new product for any purpose.
Subsection 4 provides that for subsection 19 (3A) of the Act, showers, lavatory equipment, urinal equipment, tap equipment and flow controllers may comply with Section G of the Plumbing Code, or, until 1 November 2013, may instead comply with section 2.2 of AS/NZS 3500.
The intention of this Determination is that WaterMark certification is a prerequisite to registration of a WELS product, where the product is required to be WaterMark certified by the state or territory. The WELS standard “calls up” WaterMark certification if it is specified by states or territories as Section G of the Plumbing Code. Where the state or territory has not yet specified Section G of the Plumbing Code, the WELS standard will continue to call up, as an alternative, section 2.2 of AS/NZS 3500 until 1 November 2013.
Subsection 5 provides the definition of “AS/NZS 3500”. The intention of ‘in force from time to time’ is that the Determination ‘calls up’ the most current version of AS/NZS 3500.
Subsection 6 provides that subsections 7 (4), 7 (5) and 7 (6) of the Determination will expire on 1 November 2013. The date of 1 November 2013 has been chosen to provide a reasonable time for the states and territories who currently call up WaterMark certification through AS/NZS 3500 to complete their planned processes to instead “call up” the Plumbing Code.
Section 8 provides that for subsection 27 (1) of the Act, section 4 and Appendix A to AS/NZS 6400 refer to the manner and form in which an application may be made for the
registration of a WELS product. Also, for subsection 27 (1)(a) of the Act, the documentation that must accompany an application is specified in section 4.4 of AS/NZS 6400.
Section 9 provides that for subsection 27 (2) of the Act, clauses 4.5, 4.6 and 4.7 of AS/NZS 6400 specify conditions that must be complied with in order for a WELS product to remain registered.
Section 10 provides that for paragraph 27 (1)(b) of the Act, the registration fee is specified as $1,500. The fee is to be charged for any application for registration of a WELS product. This fee will also be charged for 2 or more WELS products of the same ‘family of models’ (i.e. where the products are in the same category, have the same manufacturer and brand, the same water efficiency rating, and the same performance and physical characteristics that could affect the water efficiency or performance of the product. Differences that are merely related to the appearance of the product – e.g. the colour of the casing – are unlikely to be determinative). The same fee will be charged for a set of minor products (defined in section 12 of the Determination).
Section 11
Subsection 1 provides that this section applies to all WELS products with registrations due to expire more than one year from 1 November 2011 and for a clothes washing machine that meets the requirements of subsection 4.
Subsection 2 provides that for subsection 30 (3) of the Act, the period of one year mentioned in paragraph 30 (2)(d) of the Act is extended to the end of the 5 year period that each product is currently registered for.
Subsection 3 provides that the purpose of extending the period is to allow a WELS product to remain registered as if the WELS standard at the date of the 2007 Determination is still in force.
This subsection of the Determination needs to be read in conjunction with section 30 of the Act. The combined effect of the Act and Determination is that:
- all WELS products with less than one year left on their registration period on
1 November 2011 will remain registered until 1 November 2012; - washing machines which do not meet the requirements of subsection 4 will remain registered until 1 November 2012 regardless of when their registration would otherwise have expired; and
- all other WELS showers, dishwashers, lavatory equipment, urinal equipment, tap equipment, flow controllers, and clothes washing machines that meet the requirements of section 4 will continue to be registered to the end of the five-year period of their current registration.
Subsection 4 provides that clothes washing machines referred to in subsection 1 are those which have:
(a) a load capacity of 5 kg or more and a water efficiency star rating of at least 3 stars; or
(b) a load capacity under 5 kg and a water efficiency star rating of at least 2.5 stars.
The note explains that a washing machine that is registered on 31 October 2011, the day before this Determination commences, and that does not meet the requirements in subsection (4), remains registered for a year after 1 November 2011.
Section 12 defines “minor products” as requiring each product to have the same manufacturer and brand name, together with evidence submitted by the applicant to the Regulator showing that less than 100 of each of the products can be expected to be sold each year.
Pursuant to the Act and subsection 33 (3) of the Acts Interpretation Act 1901, certain conditions need to be met before the power to make determinations concerning WELS products may be exercised. Subsection 18 (4) of the Act requires that the Commonwealth Minister must have agreement to the terms of a determination from a majority of the participating States and Territories.
This state and territory consultation process was undertaken and majority agreement reached. The amendments to AS/NZS 6400 were made under Standards Australia consensus arrangements incorporating participation by industry organisations, community groups and government representatives. This process also involves public comment and member balloting processes.
The Water Efficiency Labelling and Standards Amendment Determination 2011 is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) and commenced on 1 November 2011.