Greenhouse and Energy Minimum Standards Act 2012

Overview

The Greenhouse and Energy Minimum Standards Act 2012 was enacted by the Australian Parliament to address the need for setting minimum standards for energy use and greenhouse gas emissions of certain products, thereby promoting the development and adoption of products that consume less energy and produce fewer greenhouse gases. This legislation was introduced to give effect to Australia's obligations under international agreements such as the United Nations Framework Convention on Climate Change and the Paris Agreement, and to facilitate an intergovernmental scheme involving the Commonwealth and participating jurisdictions in relation to equipment energy efficiency. Additionally, the Act aims to promote improved energy performance and better management of energy demand through specific requirements for products that use energy or affect the energy consumption of other products. The Act applies to the supply and commercial use of such products, ensuring they meet specified energy efficiency standards and labelling requirements. The Act provides for the establishment of the Greenhouse and Energy Minimum Standards (GEMS) Register, overseen by the GEMS Regulator, who is responsible for administering the Act, maintaining the GEMS Register, and assisting in the development of GEMS determinations. The Regulator also has the authority to monitor and enforce compliance, review the operation of the Act, and engage with other agencies and consultants to carry out these functions. Penalties are in place for non-compliance with the standards, and the Act includes provisions for the public disclosure of certain enforcement actions and contraventions, as well as mechanisms for the review of decisions made by the Regulator. The Act also includes protections for commercially sensitive information against unauthorised disclosure.

Scope and Application

The Greenhouse and Energy Minimum Standards Act 2012 applies to products that use energy or affect energy use by other products (GEMS products) and encompasses their supply, offer for supply, and commercial use within Australia. The Act binds the Crown but does not make it liable to prosecution for offences, except for authorities of the Crown. It extends to external Territories and operates concurrently with more stringent State or Territory laws relating to greenhouse gas emissions or energy use, provided such laws do not conflict with the Act's intent. The Act applies to supplies and offers to supply products that are part of international agreements, constitutional corporations, constitutional trade or commerce, and entities within Commonwealth places or external Territories. Similarly, it applies to the commercial use of products by constitutional corporations and within constitutional trade or commerce. Offences and civil penalties apply for supplying or using GEMS products that do not comply with the Act's requirements or for supplying products whose models are not registered. Exemptions exist for second-hand products, certain supplies and uses, and models that meet specific conditions. The Act establishes the GEMS Register for registering models of GEMS products against Ministerial determinations, known as GEMS determinations. These determinations specify requirements for energy consumption, greenhouse gas emissions, labelling, and other aspects. The Act allows for the replacement of existing determinations and the exemption of certain models from specific requirements, subject to certain conditions. The GEMS Regulator, an SES employee designated by the Secretary, administers the Act, maintains the GEMS Register, and can assist in developing GEMS determinations. The Act also includes provisions for monitoring and investigating compliance, issuing infringement notices, accepting enforceable undertakings, and granting injunctions. It provides for the publicity of certain offences, contraventions, and decisions regarding the registration of GEMS products. Decisions made under the Act can be reviewed internally and by the Administrative Review Tribunal. The Act protects commercially sensitive information against unauthorised disclosure, though certain disclosures are permitted under specific circumstances. The Act also covers miscellaneous matters such as the recovery of fees, compensation for property acquisition, annual reporting by the GEMS Regulator, and the power to make regulations. The enforcement provisions of the Act extend to external Territories, and the Act allows for the delegation of certain functions and powers, with some limitations.

Key Provisions

• The Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act) aims to promote the development and adoption of products that use less energy and produce fewer greenhouse gases. The Act applies to products that use energy or affect energy use by other products (referred to as GEMS products), and it does so by applying greenhouse and energy minimum standards (GEMS) in association with the supply and commercial use of these products. These standards are detailed in Ministerial determinations (GEMS determinations). Generally, GEMS products can only be supplied or used for commercial purposes if the model of the product is registered against a GEMS determination and the product complies with that determination (sections 16, 18). These determinations cover various requirements, such as energy consumption, greenhouse gas production, labelling, and other matters including environmental and human health considerations (sections 25, 26, 27).
• Under the Act, certain obligations and requirements are imposed on the parties or entities it governs. Suppliers and commercial users of GEMS products must ensure that they comply with the GEMS determinations relevant to the product class, and that the product model is registered against the relevant GEMS determination (section 16). The GEMS Regulator, a senior officer of the Department, is responsible for the registration system and the administration of this Act (sections 70, 71). Registrants must notify the GEMS Regulator of any changes, provide specified information related to the manufacture, import, supply, or export of products, and have products tested to determine compliance with the GEMS determinations (sections 55, 56, 61). The GEMS Regulator has powers to monitor and enforce compliance with the Act, including inspecting public areas of premises used in connection with the supply of GEMS products, issuing infringement notices for suspected contraventions, and accepting enforceable undertakings to comply with the Act (sections 86, 130, 131).
• The Act provides for various offences, penalties, and consequences for breach. Offences related to supplying, offering to supply, or using GEMS products for commercial purposes are strict liability offences, meaning that intent or knowledge of the contravention is not necessary to establish the offence (subsection 6(1)). For example, supplying a GEMS product that does not comply with a GEMS determination or whose model is not registered against the determination is an offence (sections 16, 17). The maximum penalty for such an offence varies depending on whether the GEMS product is a category A or B product, with penalties of up to 60 penalty units for category A products and 120 penalty units for category B products (sections 16(3), 16(4), 17(3), 17(4)). Civil penalty provisions may also be applicable, where the prosecution does not need to prove the person’s state of mind (section 129(1)). The Act also allows for the publicising of certain offences, contraventions, and adverse decisions (section 162).
• In terms of civil penalties, the Act allows for a pecuniary penalty to be imposed on a person contravening a civil penalty provision (section 129(1)). Infringement notices may be issued for suspected contraventions of civil penalty provisions, allowing a person to pay a penalty as an alternative to having court proceedings brought against them (section 130). Enforceable undertakings may also be accepted and enforced, where a person undertakes to compensate another person for loss or damage suffered due to a contravention (section 131). Further, decisions made under the Act, such as refusals to register a model or to vary a registration, can be reviewed internally or by the Administrative Review Tribunal (sections 166, 167). Protected information obtained in connection with the Act is safeguarded against unauthorised disclosure, with severe penalties for breach (sections 169, 170). The Act also provides for the recovery of fees, compensation for the acquisition of property, the GEMS Regulator’s annual report, and the power to make regulations (sections 173, 175, 177).

Legal classification tags

Area of Law

Environmental Law

Energy Law

Instrument

Act

Concepts

Commencement Provisions

Reporting & Disclosure Obligations

Enforcement Powers

Regulatory Standards

Regulatory Discretion

Regulatory Oversight

Infringement Notices

Prohibited Conduct