EXPLANATORY STATEMENT

Issued by the authority of the Parliamentary Secretary for Climate Change and Energy Efficiency

Greenhouse and Energy Minimum Standards Act 2012

Greenhouse and Energy Minimum Standards (Clothes Washing Machines) Determination 2012

Purpose

The Greenhouse and Energy Minimum Standards (Clothes Washing Machines) Determination 2012 (Determination) establishes energy labelling and product performance requirements, and associated requirements for conducting tests, for clothes washing machines.

The Determination is one of an initial suite of 19 determinations by which responsibility for the regulation of energy efficiency and energy labelling has been transitioned from the states and territories to the Commonwealth.

Background

The Greenhouse and Energy Minimum Standards Act 2012 (Act) establishes a national framework for regulating the energy efficiency of products supplied or used within Australia, implementing Australian Government and the Council of Australian Governments (COAG) commitments to establish national legislation to regulate energy efficiency and labelling standards for appliances and other products. The national legislation permits the Australian Government to set mandatory minimum efficiency requirements for products, to drive greater energy efficiency for regulated products. The Act also allows the Australian Government to set nationally-consistent labelling requirements, to increase Australians’ awareness of options to improve energy efficiency and reduce energy consumption, energy costs and greenhouse gas emissions. The national framework replaced seven state and territory legislative frameworks, harmonising the regulation of equipment energy efficiency.

Under the previous state and territory legislative frameworks, Minimum Energy Performance Standards (MEPS) and energy labelling requirements were set out in Australian or Australian/New Zealand Standards and incorporated by reference in regulations, which were usually made under the relevant state or territory electrical safety legislation. It was intended that the transition to Commonwealth regulation would, to the greatest extent possible, simply reproduce the regulatory requirements that existed under state and territory law. As a result, the practice of setting the requirements by reference to the relevant Australian or Australian/New Zealand Standards has been continued in this initial suite of determinations made under the Act, albeit with some departures in order to enshrine in the law various rulings made over time by state regulators, and certain administrative practices that had developed over time in the COAG Equipment Energy Efficiency Program (E3 Program), to provide certainty to the regulated community.

Selected definitions and text are extracted in the GEMS Determinations from the relevant Australian or Australian/New Zealand Standards. This is done with the intention of making it possible to determine if a product is covered (or excluded) by the GEMS Determination without having to refer to the relevant standard.

Energy labelling requirements primarily relate to requirements for the display of energy rating labels, such as those commonly seen on products including refrigerators, dishwashers and televisions, amongst others. Energy rating labels allow consumers to compare the energy consumption of similar products, and factor potential cost savings into their purchasing decision. For some products labelling requirements also relate to specific information that must be marked on the product itself or the box in which it is supplied.

Other regulatory requirements include requirements relating to high efficiency levels, product performance, and the impact of the product on the environment or the health of human beings:

• High efficiency level requirements allow suppliers or manufacturers to differentiate more efficient products in the market where the product does not carry an energy rating label, provided they meet a specified efficiency benchmark over and above the nominated GEMS level requirements.
• Product performance requirements are intended to ensure that minimum efficiency requirements or a higher number of stars on an energy rating label are not achieved by reducing the effectiveness of the product in its primary function. An example of this is the setting of minimum requirements for soil removal for clothes washers.
• Requirements in relation to the impact of a product on the environment or the health of human beings are intended to ensure that greater energy efficiency does not come at the expense of the environment or human health. An example of this is the setting of a maximum limit for the amount of mercury that may be contained in a compact fluorescent or linear fluorescent lamp. Some level of mercury is necessary for these energy efficient lamps to operate so limits are set to keep mercury content within safe levels for human health and the environment.

Legislative basis

Under subsection 23(1) of the Act the Minister may, by legislative instrument, make a determination (a GEMS determination) that specifies one or more classes of products if the products in those classes use energy or affect the amount of energy used by other products. A GEMS determination is the vehicle by which energy efficiency requirements (GEMS level requirements), energy labelling requirements (GEMS labelling requirements) for classes of products and other requirements for a product class are established.

Under section 25 of the Act the GEMS level requirements specified in a GEMS determination may be:

• requirements relating to one or more of the following:
  • the amount of energy used in operating products in relevant product classes;
  • the amount of greenhouse gases resulting from operating products in the relevant product class;
  • the effect of those products on the amount of energy used by operating other products; and
• requirements for conducting tests in relation to products in the relevant product class in order to determine whether the products meet the specified requirements.

Under section 26 of the Act the GEMS labelling requirements specified in a GEMS determination may be:

• requirements relating to the information that must be communicated in connection with supplying or offering to supply products in the relevant product class;
• requirements relating to the manner in which that information must be communicated; and
• requirements for conducting tests in relation to products in the relevant product class in order to determine whether the products meet the specified requirements.

Under section 27 of the Act other requirements that may be specified in a GEMS determination are:

• requirements for products in the relevant product class to meet a specified level (the high efficiency level);
• requirements relating to the performance of products in the relevant product class;
• requirements relating to the impact of products in that product class on the environment or on the health of human beings;
• requirements for conducting tests in relation to products in the relevant product class in order to determine whether the products meet the specified requirements; and
• requirements of a kind specified in the regulations for the purposes of this paragraph.

Consultation

The Australian Government conducted extensive consultation with Australian businesses throughout the development of the Act. In the development of this Determination, Australian businesses were further consulted on ‘family of models’ circumstances in the Determinations (discussed below). Australian businesses were not consulted on the other provisions of this Determination (or the other Determinations in the initial suite of 19) as those provisions reproduce the requirements that existed under state and territory legislation.

Industry stakeholders representing all regulated product types were consulted in June and July 2012 on a proposed approach to the circumstances in which two or more models of products could be in a family of models. The aim of the consultation was to develop a streamlined and consistent approach to families of models across all product types. The consultation raised some general issues and some specific issues that are unique to particular product classes. It was decided that these issues could only be addressed with a detailed review of each of the family of models circumstances for each product type. A commitment was made to review the family of models treatment under GEMS for each product type over time. Lighting products have already been reviewed, and the results of the review were incorporated into the relevant determinations in the initial suite of 19. For products that have not had a review it was decided that the family of models treatment in previous state and territory regulation and practice would be carried over in the GEMS Determinations.

Extensive consultation was undertaken with state and territory government policy officers, state regulators, and technical consultants to ensure that the requirements established in the Determinations did not go beyond the scope of the previously existing state and territory requirements. The draft determinations were amended to reflect the outcome of the consultations.

Regulatory Impact

A comprehensive COAG Regulatory Impact Statement (the GEMS RIS) was prepared as part of the process of developing the Act. The regulatory proposals encapsulated by the Determinations fall within the scope of the GEMS RIS, and only reproduce regulatory requirements for business that already existed under state and territory legislation. Consequently, no further regulatory impact analysis was considered neccesary in relation to the regulatory proposal.

Detailed description of the Determination

Details of the Determination are set out at Attachment A.

Statement of compatibility with human rights

A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.

Attachment A

Details of the Determination

Section 1 – Name of Determination

This section sets out the title of the Determination.

Section 2 – Commencement

This section provides that the Determination commences the day after it is registered on the Federal Register of Legislative Instruments. The default 12 month period that otherwise applies to the commencement of a GEMS determination, as provided for by paragraph 34(a) of the Act, is not necessary with respect to this Determination because it reproduces in Commonwealth law the energy efficiency and energy labelling requirements that previously existed in state and territory legislation.

Section 3 – Definitions

This section sets out definitions for key terms used in the Determination. The definitions include:

• definitions relating to the various Australian/New Zealand Standards by which the requirements of the Determination are specified;
• a definition of “clothes washing machine”, which is given the same meaning as in Australian/New Zealand Standard AS/NZS 2040.1:2005;
• a definition of PBIS, which means analytical grade 2-phenyl-5-benzimidazole-sulfonic acid CAS No: 27503-81-7; and
• a definition of “standard”, which means an Australian Standard, an Australian/New Zealand Standard, an International Electrotechnical Commission (IEC) Standard or any other equivalent document.

Section 4 – Interpretation

Section 4 provides guidance for interpreting certain aspects of the Determination.

Subsection 4(1)

The purpose of this subsection is to avoid any inconsistency in terminology between the Determination (and other elements of the GEMS legislation) and the standards referenced in section 3 of the Determination. It indicates that where a term used in the Determination is not defined in any part of the GEMS legislation, but is defined in a standard referenced in section 3, for the purposes of the Determination the term has the meaning set out in the applicable standard.

Subsection 4(2)

Unless otherwise specified, the applicable version of a document incorporated by reference in a legislative instrument is the version that existed on the date the instrument came into force. This is made clear for standards specifically referenced in section 3 of the Determination. However, often these standards refer to other standards or documents which also contain requirements that must be applied to give effect to the Determination or a standard referred to in the Determination. The purpose of this subsection is to make clear that the applicable version of these further documents is also the version that existed on the day the Determination came into force.

Section 5 – Specified product classes covered by the Determination

Section 5 sets out the scope of the Determination.

Subsection 5(1)

Subsection 5(1) provides that the Determination covers clothes washing machines, as defined in section 3, which are ordinarily supplied and used for personal, domestic or household use. This reflects the scope of the regulations for this product type under the previous state and territory legislation, as it was set out in the Australian/New Zealand Standards AS/NZS 2040.1:2005 (Performance of household electrical appliances – Clothes washing machines – Part 1: Methods for measuring performance, energy and water consumption) and AS/NZS 2040.2:2005 (Performance of household electrical appliances – Clothes washing machines – Part 2: Energy efficiency labelling requirements).

Subsection 5(2)

Section 11 of the Act provides that a determination must specify one or more product classes that it covers. This subsection specifies clothes washing machines covered by the Determination form a single product class.

Subsection 5(3)

This subsection sets out product classes that are not covered by the Determination. These are clothes washing machines with a capacity of 2 kilograms or less that cannot be connected to a mains water supply, and clothes washing machines that are only capable of being used with cold water. This reflects the product classes excluded under the previous state and territory legislation.

Subsection 5(4)

This subsection defines the terms “automatic fill control” and “rated load capacity” for the purposes of section 5. Both terms are given the same meaning as they have in AS/NZS 2040.1:2005.

Section 6 – GEMS level requirements

There are no GEMS level requirements for clothes washing machines covered by the Determination.

Section 7 – GEMS labelling requirements

Section 7 specifies GEMS labelling requirements for clothes washing machines covered by the Determination, including requirements for conducting tests in order to demonstrate compliance with the energy labelling requirements, under section 26 of the Act.

Subsection 7(1)

This subsection provides that the GEMS labelling requirements are those set out in section 5 of AS/NZS 2040.2:2005.

Subsection 7(2)

This subsection specifies that the requirements for conducting tests are those set out in section 2 of AS/NZS 2040.1:2005, subject to the modification of those requirements set out in subsections 7(3) and (4).

The modifications made by subsections 7(3) and (4) to the test requirements set out in the standard enshrine in law guidance provided to industry in regulatory rulings previously issued under the E3 Program, to account for errors and inconsistencies identified in the testing requirements set out in AS/NZS 2040.1:2005.

Subsection 7(3)

This subsection replaces the requirement at subclause N 3.2 (g) of Appendix N of AS/NZS 2040.1:2005 with a transmittance requirement of between 80 per cent and 100 per cent.

The rinse performance of clothes washers is determined by measuring the mass, per kilogram of clothes load, of a chemical marker (PBIS) present in the rinse liquor that is retained in the wet load at the end of the program. This is done by measuring the transmittance of ultraviolet light through a sample of the liquor with a quartz cell spectrophotometer. A 2009 amendment to AS/NZS 2040.1:2005 erroneously changed the acceptance criteria for quartz cells from a minimum of 80 per cent transmittance to a minimum of 97.949 per cent.

Subsection 7(4)

This subsection replaces the limit for this residual PBIS level set in subclause M 5.1 of Appendix M of AS/NZS 2040.1:2005 with a PBIS limit of 0.2 milligrams per litre.

After a clothes washer rinse performance test is completed it is important that the test laboratory thoroughly rinse out the clothes that comprised the test load before they undertake a new test. This is to ensure that as much of the residual detergent, soil and particularly PBIS marker used in the rinse performance assessment is removed from the clothes load before starting a new test using the same load. At the end of the rinsing process a sample of liquor is taken from the re-conditioned load and checked for residual PBIS level using the test protocol specified in AS/NZS 2040.1:2005. The limit for residual PBIS level set in AS/NZS 2040.1:2005 has been determined to be unrealistic.

Section 8 – Other GEMS requirements

Section 8 specifies other GEMS requirements in relation to product performance for clothes washing machines covered by the Determination, including requirements for conducting tests in order to demonstrate compliance with the product performance requirements, under section 27 of the Act.

These performance requirements are intended to prevent products entering the Australian market that are designed to meet GEMS requirements but are unfit for the product’s intended purpose.

Subsection 8(1)

This subsection provides that the product performance requirements are those set out in clauses 3.2 (Percentage Soil Removal and Standard Deviation), 3.3 (Water Consumption), 3.4 (Water Extraction Index), 3.5 (Severity of Washing Action Index), and 3.6 (Rinse Performance) of AS/NZS 2040.2:2005, and clause 4.2 (Water Pressure) of AS/NZS 2040.1:2005.

Subsection 8(2)

This subsection specifies that the requirements for conducting tests are those set out in section 3 of AS/NZS 2040.2:2005 and sections 2 and 4 of AS/NZS 2040.1:2005, subject to the modification of those requirements set out in subsections 8(3) and (4).

Subsections 8(3) and (4)

These subsections modify the test requirements set out in subsection 8(2) in the same way as described for subsections 7(3) and (4).

Section 9 – Family of models

Section 28 of the Act provides that a GEMS determination must specify, for each product class covered by the determination, the circumstances in which two or more models in that product class are in the same family of models.

This section specifies that the family of models circumstances for clothes washing machines covered by this Determination are those set out in subclause 1.5.4 of AS/NZS 2040.2:2005.

Section 10 – Product categories

Section 29 of the Act requires that a GEMS determination specify whether the products it covers are category A or category B products. Category B products are subject to higher penalties than category A products for certain offences under the Act, on the basis that category B products have a high impact on energy use or greenhouse gas production.

Section 10 specifies that clothes washing machines covered by the Determination are category A products.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Greenhouse and Energy Minimum Standards (Clothes Washing Machines) Determination 2012

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Greenhouse and Energy Minimum Standards (Clothes Washing Machines) Determination 2012 prescribes matters relating to energy labelling requirements for clothes washing machines under the Greenhouse and Energy Minimum Standards Act 2012. The Determination establishes requirements for energy labelling and product performance, including requirements for conducting tests in order to demonstrate compliance with those requirements. The Determination also sets out the circumstances in which two or more models in a product class may be a family of models, and establishes the applicable product category for the purposes of calculating certain penalties under the Act.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

The Hon Mark Dreyfus QC MP
Parliamentary Secretary for Climate Change and Energy Efficiency