EXPLANATORY STATEMENT
Greenhouse and Energy Minimum Standards Act 2012
Greenhouse and Energy Minimum Standards (Exemption) Amendment Instrument (No. 1) 2024
Legislative Authority
Section 37 of the Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act) enables the GEMS Regulator to, by legislative instrument, in accordance with regulations made for the purposes of subsection 37(1), exempt models of GEMS products from one or more requirements, or one or more aspects of one or more requirements, of a GEMS determination in relation to all or specified supplies or uses of products of that model. An exemption can be in relation to all supplies or uses of products of that model or limited to specified supplies and uses. The GEMS Regulator may specify conditions to which the exemption is subject.
The GEMS Regulator may specify conditions to which an exemption is subject in accordance with subsection 37(2) of the GEMS Act. Subsection 37(3) of the GEMS Act provides that a person must comply with a condition of an exemption to the extent that it applies to the person.
Division 4.1 of the Greenhouse and Energy Minimum Standards Regulation 2012 (Regulation) sets out the circumstances in which the GEMS Regulator may exempt a model of a GEMS product from the requirements of a GEMS determination.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), 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 Greenhouse and Energy Minimum Standards (Exemption) Amendment Instrument (No. 1) 2024 (Amendment Instrument) is to amend the Greenhouse and Energy Minimum Standards (Exemption) Instrument (No. 2) 2024 (Exemption Instrument), to correct a minor transcribing error with the model number of the appliance. The error is in item 1 of Schedule 1 to the Exemption Instrument. The model number in the Exemption Instrument is “RFN31841l” (ending with a lowercase ‘L’), but the correct model number is “RFN31841I” (ending with a capital ‘i’).
Background
The Exemption Instrument allows for an exemption of supplies by Asko Appliances (Aust) Pty Ltd (Asko), being a household bottom mount refrigerator/freezer product (model number RFN31841I), from the minimum energy performance (MEPS) requirements, labelling requirements and other requirements relating to the testing requirements set out in Parts 8, 9 and 10 of the Greenhouse and Energy Minimum Standards (Household Refrigerating Appliances) Determination 2019 (2019 Determination). This exemption allows Asko to sell their remaining stock of supplies with the model number RFN31841I.
The model number RFN31841I was first registered under the Greenhouse and Energy Minimum Standards (Refrigerator and Freezer) Determination 2012 (2012 Determination), and subsequently registered under the 2019 Determination in accordance with section 36 of the GEMS Act. The model ceased to be imported in Australia in April 2022.
Details/Operation
The Amendment Instrument is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).
Details of the Amendment Instrument are set out in Attachment A.
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 for the 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 instrument to be made under subsection 37(1), the Amendment Instrument is not subject to disallowance or sunsetting under the Legislation Act. Further details are provided at Attachment B.
Regulatory Impact
There will be no regulatory burden arising from the Amendment Instrument.
Statement of Compatibility with Human Rights
In accordance with subsection 15J(2) of the Legislation Act, as the Amendment Instrument 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.
ATTACHMENT A
Details of the Greenhouse and Energy Minimum Standards (Exemption) Amendment Instrument (No. 1) 2024
Section 1 – Name
This section specifies the name of the instrument as the Greenhouse and Energy Minimum Standards (Exemption) Amendment Instrument (No. 1) 2024 (Amendment Instrument).
Section 2 – Commencement
This section provides that the Amendment Instrument commences on the day after registration on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Amendment Instrument is made under subsection 37(1) of the Greenhouse and Energy Minimum Standards Act 2012 and subsection 33(3) of the Acts Interpretation Act 1901.
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
Schedule 1 to the Amendment Instrument sets out the omission of model number “RFN31841l”, and substitution with “RFN31841I” in item 1 of Schedule 1 to the Greenhouse and Energy Minimum Standards (Exemption) Instrument (No. 2) 2024.
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 (GEMS Act) (excluding regulations) are exempt from disallowance under subsection 44(1) of the Legislation Act 2003 (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 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 Act creates a national framework for product energy efficiency in Australia (the 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 was enacted and is operated to implement the Inter-Governmental Agreement;
- its activities are jointly funded by the Commonwealth and States and Territories under the Inter-Governmental Agreement; 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 Act).
The Amendment Instrument is made under the GEMS Act for the purposes of this intergovernmental scheme and is authorised by subsection 37(1) of the Act. Therefore, the Amendment Instrument is 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 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.
As well as implementing an intergovernmental scheme, these exemptions are justified on the bases that:
- instruments made under the Act:
- are based on technical and scientific evidence about products’ energy use and appropriate test standards, and
- affect commercial certainty where manufacturers and importers need to adapt to new regulatory requirements, and
- the objects of the 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.