EXPLANATORY STATEMENT
Issued by the Parliamentary Secretary to the Minister for the Environment
Subject – Water Efficiency Labelling and Standards (Registration Fees) Act 2013
Water Efficiency Labelling and Standards (Registration Fees) Amendment Determination 2015 (No. 1)
The Water Efficiency Labelling and Standards (Registration Fees) Act 2013 (the Registration Fees Act) provides the legislative power to recover costs associated with administering the water efficiency labelling and standards (WELS) scheme through taxes, in the form of registration fees. The WELS scheme is established under the Water Efficiency Labelling and Standards Act 2005 (the WELS Act) and corresponding state and territory legislation. It is administered by the Australian Government on behalf of participating states and territories. Under subsection 18(1) of the WELS Act, the Commonwealth Minister may determine, in writing, that water-use products or water-saving products of a specified kind are ‘WELS products’.
Subsection 7(1) of the Registration Fees Act provides that the Minister may, by legislative instrument, specify fees for applications to register WELS products. Registration fees may be imposed as taxes under a legislative instrument and two or more fees may be specified for a single registration application (subsections 7(2) and (3) respectively). Before making a legislative instrument imposing registration fees the Minister must provide a draft instrument to each participating State and Territory (subsection 7(4) of the Registration Fees Act).
The Water Efficiency Labelling and Standards (Registration Fees) Amendment Determination 2015 (No. 1) (the Determination) amends the Water Efficiency Labelling and Standards (Registration Fees) Determination 2013 (the Principal Determination) to remove the concept of a minor product in subsection 5(3) in the Principal Determination and amend the way in which registration fees are calculated for minor products. Details of the Determination are set out in the Attachment.
In accordance with Section 7 of the Registration Fees Act the Commonwealth provided each participating state and territory with a copy of the draft Determination for consultation purposes prior to making this determination. The Standards Australia Committee WS-032, comprised of industry representatives, was also provided with a copy of the draft Determination for consultation purposes prior to making this determination.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Determination commences on 22 January 2015.
ATTACHMENT
Details of the Water Efficiency Labelling and Standards (Registration Fees) Amendment Determination 2015 (No. 1)
Section 1 – Name
This section provides that the name of the determination is the Water Efficiency Labelling and Standards (Registration Fees) Amendment Determination 2015 (No.1) (the Determination).
Section 2 – Commencement
This section provides that the Determination commences on 22 January 2015.
Section 3 – Authority
This section provides that the Determination is made under the Water Efficiency Labelling and Standards (Registration Fees) Act 2013 (the Registration Fees Act).
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Item 1 – Section 4
Item 1 inserts a definition of minor product in section 4 of the Determination. Minor product has the same meaning as in section 5A of the Water Efficiency Labelling and Standards (No. 2) Amendment Determination 2015 (No. 1) (the 2015 WELS Determination).
Section 5A of the 2015 WELS Determination defines minor product for the purpose of applications made under sections 9 and 10 of the Water Efficiency Labelling and Standards (No. 2) Determination 2013 (the 2013 WELS Determination). Section 9 of the 2013 WELS Determination sets out the application process for the registration of new WELS products. Section 10 of the 2013 WELS Determination sets out the application process for renewing the registration for registered WELS products i.e. a registrant for a registered WELS product may apply in writing to the Regulator to register the product for a further period.
Currently, the Regulator (i.e. a Senior Executive Service employee designated by the Secretary of the Department of the Environment pursuant to subsection 21(1) of the Water Efficiency Labelling and Standards Act 2005 (the WELS Act)) does not have the ability to delegate the power to make decisions to register minor products to an Australian Public Service (APS) employee.
The inability to delegate the Regulator’s powers to an APS employee has created inefficiencies in relation to registering two or more WELS products taken to be single product i.e. minor products. It is also inconsistent with the registration process for a single WELS product where, in accordance with subsection 25(1) of the Act, the Regulator is able to delegate this power to an officer or employee of an agency of the Commonwealth.
Item 1 rectifies the above-noted inefficiencies. The effect of inserting a definition of minor product in section 4 of the Determination is that it allows the Regulator to delegate decisions to register a minor product to an APS employee in accordance with the delegation provision in subsection 25(1) of the WELS Act.
Item 2 – Subsection 5(2)
Item 3 – Paragraph 5(2)(a)
Item 4 – Paragraph 5(2)(b)
Item 5 – Subparagraph 5(2)(b)(ii)
Item 6 – Paragraph 5(2)(c)
Item 7 – Subsections 5(3) and (4)
Item 7 repeals subsections 5(3) and (4) of the Principal Determination and replaces it with a new subsection 5(3). The definition of a minor product has been removed from subsection 5(3) of the Principal Determination and inserted into the 2015 WELS Determination to give effect to delegations under subsection 25(1) of the WELS Act. This will allow the Regulator to delegate decisions to register a minor product to an APS employee. Consequently, amended subsection 5(3) will relate only to calculating fees payable for minor product.
The ability to register two or more products as a single product was first introduced to reduce the impacts of WELS registration fees on the market viability and availability of products that were expected to sell fewer than 100 units a year. It was anticipated this would mitigate any negative impact of the WELS scheme on consumer choice, particularly for consumers requiring niche products. However, once the provision was introduced applicants registered hundreds of products, not necessarily products intended to be captured by the provision, under a single product in order to avoid paying higher fees in accordance with the Schedule. Consequently, the provision became difficult to manage.
Item 7 changes the way in which fees payable for minor products are calculated. New paragraphs 5(3)(a) and (b) provide that, for the purposes of calculating registration fees, the applicant should divide their number of minor products by 15, round this result up to the nearest number, and add this result to the number of their products that are not minor products (if any). This is intended to prevent applicants exploiting the minor product provision and pay the appropriate registration fees in accordance with the Schedule.
For example, if a person previously had 305 products registered as a single product they would have fallen under Item 1 of Schedule 1 to the Principal Determination and be required to pay a registration fee of $600. To calculate their fee under the new provisions, this person would divide their minor products (305) by 15 and round the result up to the nearest whole number (which would equate to 21), and add the number of products that are not minor products (1), which would equate to 22. In this example, this person would now fall under Item 4 of the Schedule 1 to the Principal Determination and be required to pay $2,500 in registration fees.
Items 2-6 (inclusive) are consequential amendments arising from amendments contained in Item 7. These amendments provide that the fee for the relevant number of products (the number calculated by subsection 5(3)) is set out in the Schedule 1 to the Principal Determination.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Water Efficiency Labelling and Standards (Registration Fees) Amendment Determination 2015 (No.1)
Overview of the Legislative Instrument
The Water Efficiency Labelling and Standards (Registration Fees) Amendment Determination 2015 (No.1) (the Determination) amends the Water Efficiency Labelling and Standards (Registration Fees) Determination 2013 to remove the concept of a minor product in subsection 5(3) and amend the way in which registration fees are calculated for minor products.
Human rights implications
This Legislative Instrument has been assessed against the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with Australia’s human rights obligations as it does not raise any human rights issues.
The Honourable Bob Baldwin MP, Parliamentary Secretary to the Minister for the Environment