Explanatory Statement
Greenhouse and Energy Minimum Standards Act 2012
Greenhouse and Energy Minimum Standards (Clothes Washing Machines Determination—Changes to Incorporated Instrument) Declaration (No. 1) 2025
Legislative Authority
Section 34A of the Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act) enables the Greenhouse and Energy Minimum Standards (GEMS) Regulator to declare, by legislative instrument, that an instrument incorporated in a GEMS determination has effect in relation to the GEMS determination as if the incorporated instrument contained the changes specified in the declaration.
The GEMS Regulator may make a declaration under subsection 34A(2) of the GEMS Act if the following circumstances listed in subsection 34A(1) apply:
- a GEMS determination makes provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force at a particular time; and
- there are one or more changes to the incorporated instrument after that time that the GEMS Regulator is satisfied are of a minor nature.
The Greenhouse and Energy Minimum Standards (Clothes Washing Machines) Determination 2024 (Clothes Washing Machines Determination) incorporates a standard as in force at a particular time.
The GEMS Regulator made the Greenhouse and Energy Minimum Standards (Clothes Washing Machines Determination—Changes to Incorporated Instrument) Declaration (No. 1) 2025 (the Declaration) as he was satisfied for the purposes of paragraph 34A(1)(b) of the GEMS Act that there were changes of a minor nature made to the incorporated standard.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make a legislative instrument, the power shall 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.
Purpose
The purpose of the Declaration is to declare under section 34A of the GEMS Act that the standard AS/NZS 2040.1:2021 (the Standard), which is incorporated in the Clothes Washing Machines Determination, has effect in relation to the Clothes Washing Machines Determination as if the Standard contains the changes in AS/NZS 2040.1:2021 Amd 1:2025 (the Amendment Standard).
Subsection 11(1) of the Clothes Washing Machines Determination specifies requirements relating to the performance of clothes washing machines and incorporates by reference the Standard as it was in force at the time the Clothes Washing Machines Determination was made. The Standard includes requirements for a detergent to be used when testing clothes washing machines.
On 25 July 2025, the Standard was amended to primarily include an option to use sodium percarbonate as an alternative bleach to sodium perborate tetrahydrate for the active bleach component in the reference detergent. Other additional minor amendments were made to the language in the clauses of the Standard for clarity.
The GEMS Regulator was satisfied that the changes made by the Amendment Standard are of a minor nature. This is because the changes do not revoke or replace the current requirements in the Standard, but rather, update the requirements to allow a choice for registrants to use either the new bleach (sodium percarbonate) or the existing bleach (sodium perborate tetrahydrate) provided for in the Standard. Testing in accordance with the Amendment Standard, which allows for use of either bleach, will continue to deliver consistency of testing and for comparison of products tested with either bleach.
Background
The European Chemicals Agency lists sodium perborate tetrahydrate as a “substance of very high concern requiring authorisation before use”. It, therefore, cannot be used in Europe for clothes washing machine performance testing. There are currently no restrictions on the use of sodium perborate tetrahydrate in Australia, although a range of potential harms of the bleach are acknowledged in the Hazardous Chemical Information System on the Safe Work Australia website.
The Greenhouse and Energy Minimum Standards (Deemed Compliance) Declaration (No. 1) 2024 declares that the use of sodium percarbonate in the detergent used for testing is an alternative to sodium perborate tetrahydrate for all products within the scope of the Greenhouse and Energy Minimum Standards (Clothes Washing Machines) Determination 2015 (2015 Determination). The Amendment Standard addresses this issue by updating the Standard to allow the use of sodium percarbonate as an alternative to sodium perborate tetrahydrate. As a result, the Declaration has the effect that this amendment is incorporated in the Clothes Washing Machines Determination, which will replace the 2015 Determination.
Impact and Effect
There is no regulatory burden from the Declaration. The Declaration expands the opportunity for compliance for industry by providing an additional alternative testing mechanism, as opposed to replacing what is already stipulated in the Clothes Washing Machines Determination. There is no significant impact to GEMS compliance and enforcement activities, specifically check testing. Sodium percarbonate is widely available and will not impact the check testing process. impact the check testing process.
Consultation
The GEMS Regulator is satisfied that appropriate and reasonably practicable consultation has occurred, in accordance with section 17 of the Legislation Act 2003 (Legislation Act).
Multiple manufacturers of clothes washing machines and industry bodies approached the Department of Climate Change, Energy, the Environment and Water (the department) seeking the department’s review of test methods and the continuing use of sodium perborate tetrahydrate.
After ongoing consultation with industry and manufacturers, in August 2025, the department informed industry stakeholders via the Equipment Energy Efficiency Review Committee of the GEMS Regulator’s intention to make the Declaration to reflect the amended Australian Standard in the Clothes Washing Machines Determination. Industry representatives expressed support for the department’s initiative and welcomed the update, noting that it would help reduce testing costs associated with clothes washing machines.
Energy Efficient Strategies (EES) was engaged by the department, to provide expert technical advice on clothes washing machines. EES provided two reports to the department which recommended permitting testing in accordance with the amendments in AS/NZS 2040.1:2021 Amd 1:2025. EES advised that:
- the amendment is minor in nature
- the use of sodium percarbonate is optional—it supports flexibility and safety by enabling the substitution of a less hazardous chemical
- the use of sodium percarbonate delivers equivalent performance outcomes, at a lower dosage
- the amendment aligns with international standards and testing facility preferences.
On 28 August 2025, the department advised New Zealand’s Energy Efficiency and Conservation Authority (EECA) of the GEMS Regulator’s intention to make the Declaration. The EECA acknowledged and endorsed the GEMS Regulator’s intention and Australia’s progress on this issue.
Given the consultation undertaken on the GEMS Regulator’s intention to make the Declaration, it was not necessary to consult on the text of the instrument itself.
Details/ Operation
Details of the Declaration are set out in Attachment A.
Incorporation by Reference
The Declaration incorporates by reference the Amendment Standard (i.e., AS/NZS 2040.1:2021 Amd 1:2025) as made on 25 July 2025, in accordance with subparagraph 14(1)(b)(ii) of the Legislation Act. The Declaration also incorporates by reference the Standard (i.e., AS/NZS 2040.1:2021) as it was in force at the time the Clothes Washing Machines Determination was made, in accordance with subparagraph 14(1)(b)(ii) of the Legislation Act. The changes made by the Amendment Standard are included in a consolidated version of the Standard AS/NZS 2040.1:2021.
The Amendment Standard and consolidated version of the Standard can be purchased from Standards Australia Ltd at https://store.standards.org.au or the relevant distribution partners identified at https://standards.org.au/access-standards/buy-standards. Intertek Inform and Accuris were the relevant distribution partners when the Declaration was made.
Commercial users who have determined that they are likely to be covered by the Clothes Washing Machines Determination and the Declaration would be expected to purchase the consolidated version of the Standard in order to comply with both instruments. This is similar to other GEMS determinations, which reference standards in a similar way.
Non-commercial users can access the Amendment Standard and consolidated version of the Standard freely, on a limited basis, through Standards Australia’s on-line Reader Room facility at https://readerroom.standards.org.au/. The Reader Room provides non-commercial access to Australian Standards for personal, domestic or household use.
Other interested parties may be able to access the Amendment Standard and consolidated version of the Standard without cost through the National Library of Australia, including by interlibrary loans.
The Skills National Cabinet Reform Committee is working to ensure greater access to standards. Standards Australia Ltd is also working on improving access to Australian and Australian/New Zealand standards.
At the time the Declaration was made, the Amendment Standard and consolidated version of the Standard were available at www.standards.org.au.
Exemption from sunsetting and disallowance
Subsections 44(1) and 54(1) of the Legislation Act provide that instruments are not subject to disallowance and sunsetting where the enabling legislation:
- facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States or Territories; and
- authorises the instrument to be made by the body or for the purposes of the body or scheme.
The GEMS Act underpins and facilitates the operation of an intergovernmental scheme for product energy efficiency, giving effect to the Inter-Governmental Agreement (IGA) for the Greenhouse and Energy Minimum Standards (GEMS) Legislative Scheme. The GEMS Act also expressly provides for the participation of multiple governments. Given this, and the fact that the GEMS Act authorises the Declaration to be made under section 34A, the Declaration is not subject to disallowance or sunsetting under the Legislation Act. Further details are provided at Attachment B.
Statement of Compatibility with Human Rights
In accordance with subsection 15J(2) of the Legislation Act, as the Declaration is not a disallowable instrument, a statement of compatibility prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is not required.
Other
The Declaration is a legislative instrument for the purposes of the Legislation Act.
Authority: section 34A of the GEMS Act.
Attachment A
Details of the Greenhouse and Energy Minimum Standards (Clothes Washing Machines Determination—Changes to Incorporated Instrument) Declaration (No. 1) 2025
Section 1 – Name
This section provides that the name of the declaration is the Greenhouse and Energy Minimum Standards (Clothes Washing Machines Determination—Changes to Incorporated Instrument) Declaration (No. 1) 2025 (the Declaration).
Section 2 – Commencement
This section provides for the Declaration to commence on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Declaration is made under subsection 34A(2) of the Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act).
Section 4 – Definitions
This section provides for definitions of terms used in the Declaration.
Section 5 – Application to incorporated instrument
This section provides that the Declaration applies to AS/NZS 2040.1:2021 as incorporated in the Greenhouse and Energy Minimum Standards (Clothes Washing Machines) Determination 2024 (Determination).
Section 6 – Specified changes
This section provides that for the purposes of subsection 34A(2) of the GEMS Act, AS/NZS 2040.1:2021 has effect in relation to the Determination as if AS/NZS 2040.1:2021 contains the changes specified in AS/NZS 2040.1:2021 Amd 1:2025 (Amendment Standard).
The Amendment Standard came into effect on 25 July 2025 and made certain minor changes to AS/NZS 2040.1:2021. One of these changes includes an option to use sodium percarbonate as an alternative bleach to sodium perborate tetrahydrate for testing purposes.
The dosing rate of sodium percarbonate was determined based on its established use in Europe and testing conducted by Standards Australia. Tests confirmed that sodium percarbonate delivers equivalent wash performance, enabling direct comparison with results obtained using sodium perborate tetrahydrate.
Users of the standard should refer to AS/NZS 2040.1:2021 for a consolidated version of the standard, which contains the changes made by the Amendment Standard on 25 July 2025.
Section 7 – Repeal
This section provides that the Declaration is repealed at the same time the Determination is revoked.
A note under section 7 provides that the repeal of the Declaration is authorised by subsection 33(3) of the Acts Interpretation Act 1901.
A second note under section 7 refers readers to section 35 of the GEMS Act, which provides that the Minister may revoke a GEMS determination.
ATTACHMENT B
Details of the exemptions from disallowance and sunsetting in the Legislation Act 2003
Source of exemptions
Legislative instruments made under the Greenhouse and Energy Minimum Standards Act 2012 (the GEMS Act) (excluding regulations) are exempt from disallowance under subsection 44(1) of the Legislation Act 2003 (the Legislation Act), and from sunsetting under subsection 54(1) of the Legislation Act.
Subsections 44(1) and 54(1) of the Legislation Act relevantly provide that instruments are not subject to disallowance and sunsetting where the enabling legislation (not being the Corporations Act 2001) facilitates the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more States and Territories, and authorises the instrument to be made for the purposes of that scheme.
The GEMS Act creates a national framework for product energy efficiency in Australia (the Greenhouse and Energy Minimum Standards (GEMS) Scheme) and underpins the Equipment Energy Efficiency (E3) Program. The E3 program is an initiative of the Australian, state, self‑governing territory, and New Zealand Governments. The GEMS Scheme is an intergovernmental scheme, given that:
- it is governed by the Inter-Governmental Agreement (IGA) for the Greenhouse and Energy Minimum Standards (GEMS) Legislative Scheme
- it is jointly funded, and
- key legislative instruments under the GEMS Scheme require consent from participating jurisdictions before they can be made or revoked (see sections 33 and 35 of the GEMS Act).
Legislative instruments made under the GEMS Act are made for the purposes of this intergovernmental scheme and are necessary for the operation of the scheme. The GEMS Scheme provides a nationally consistent framework for regulating energy efficiency and product labelling and promotes cooperation between the Commonwealth and states and territories. Therefore, such legislative instruments are exempt from sunsetting and disallowance.
Justification for exemptions
Through the E3 program, the Australian Government works with states and self‑governing territories and the New Zealand Government:
- to identify appliances and other products which are appropriate for regulation
- to consult with industry stakeholders and agree to requirements based on technical and product-specific considerations, and
- to set mandatory minimum energy efficiency requirements for these products, as well as consistent labelling and other requirements.
In this context, the exemptions from disallowance and sunsetting have the effect that, where the intergovernmental scheme has agreed to introduce specific regulatory requirements (including with participating jurisdictions’ consent to the key requirements of GEMS determinations), the Commonwealth Parliament cannot then override that agreement. The exemptions therefore promote confidence in the E3 program and encourage ongoing, cooperative participation from jurisdictions and maintains credibility in the GEMS scheme.
As well as implementing an intergovernmental scheme, these exemptions are justified on the bases that:
- instruments made under the GEMS Act:
- are based on technical and scientific evidence about products’ energy use and appropriate test standards through extensive research, policy development and consultation, and
- affect commercial certainty where manufacturers and importers need to adapt to new regulatory requirements, and
- GEMS determinations must be approved by State and Territory Energy Ministers before they are made, and
- the objects of the GEMS Act include to give effect to certain obligations that Australia has under particular international conventions.
In view of their detailed scientific and technical content, GEMS determinations and associated legislative instruments are confined in the matters that they deal with, and so do not deal with broad matters of policy or with politically contentious issues. The exemptions ensure that the Commonwealth Parliament cannot override the consideration given to these matters through expert and stakeholder consultation, and the collaborative E3 program.