EXPLANATORY STATEMENT
Issued by the authority of the Greenhouse and Energy Minimum Standards Regulator
Greenhouse and Energy Minimum Standards Act 2012
Greenhouse and Energy Minimum Standards (Exemption) Instrument (No. 4) 2025
Legislative Authority
Subsection 37(1) of the Greenhouse and Energy Minimum Standards Act 2012 (Act) provides that the Greenhouse and Energy Minimum Standards Regulator (GEMS Regulator) may, by legislative instrument, in accordance with regulations made for the purposes of subsection 37(1), exempt a specified model of a GEMS product from one or more requirements of a GEMS determination in relation to all or specified supplies or uses of products of that model. The GEMS Regulator may specify conditions to which the exemption is subject per subsection 37(2) of the Act.
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) Instrument (No. 4) 2025 (Instrument) is to exempt specified model number 19763L - Incandescent R39 30W lava lamp globe, from the minimum energy performance (MEPS) requirements, labelling requirements and other requirements relating to the testing requirements set out in Part 3, Part 4 and Part 5 of the Greenhouse and Energy Minimum Standards (Incandescent Lamps for General Lighting Services) Determination 2024 (2024 Determination) in relation to any supplies of the specified model.
Background
The Instrument will enable continued sale of the specified model of lava lamp globes. The specified model of globes is in scope of the 2024 Determination.
The GEMS Regulator considered all the matters set out in the Regulation in deciding whether to make the Instrument, including the impact on Australia’s greenhouse gas emissions as required under regulation 4.1.5(a) of the Regulation and matters considered in the making of the 2024 Determination as required under regulation 4.1.5(b). The GEMS Regulator is satisfied that the impact on Australia’s greenhouse gas emissions as a result of the exemption will not be significant.
Consultation
The exemption set out in the Instrument was considered on application from the applicant. Consultation was undertaken with the applicant for the purpose of processing the exemption application.
Details
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).
Further details of the Instrument are outlined 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; and
- authorises the instrument to be made by the body or for the purposes of the body or scheme.
The 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 Act also expressly provides for the participation of multiple governments. Given this, and the fact that the Act authorises the Instrument to be made under subsection 37(1), the Instrument 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 Instrument is not a disallowable instrument, a statement of compatibility is not required to be prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011.
Attachment A
Details of the Greenhouse and Energy Minimum Standards (Exemption) Instrument (No. 4) 2025
Section 1 – Name
This section specifies the name of the Legislative Instrument as the Greenhouse and Energy Minimum Standards (Exemption) Instrument (No. 4) 2025 (Instrument).
Section 2 – Commencement
This section provides that the Instrument commences on the day after registration on the Federal Register of Legislation.
Section 3 – Authority
This section provides that subsection 37(1) of the Greenhouse and Energy Minimum Standards Act 2012 (Act) is the provision under which the Instrument is made.
Section 4 – Definitions
This section provides for definitions of terms used in the Instrument. The term ‘exempt model’ is defined in section 5 of the Instrument.
Section 5 – Exemption
This section exempts the model specified in clause 1 of Schedule 1 to the Instrument (the exempt model) from the requirements of the Greenhouse and Energy Minimum Standards (Incandescent Lamps for General Lighting Services) Determination 2024 (2024 Determination) specified in clause 2 of Schedule 1 with respect to the supplies of the exempt model specified at clause 3 of Schedule 1.
This provides an exemption for the exempt model from the minimum energy performance requirements, labelling requirements and other requirements set out in Part 3, Part 4 and Part 5 of the 2024 Determination.
Section 6 – Conditions of exemption
This section provides that conditions for the purposes of subsection 37(2) of the Act are set out in clause 4 of Schedule 1 to the Instrument.
Section 7 – Repeal
This section provides that the Instrument is repealed five years after the date of commencement. The Instrument is able to be repealed due to the operation of subsection 33(3) of the Acts Interpretation Act 1901. A repeal date has been set to avoid an indefinite exemption, given the Instrument is exempt from sunsetting.
Schedule 1 – Exemption and conditions
Clause 1 – Specification of exempt model
This clause sets out the exempt model by specifying the model number in column 2 of the table and providing a description of that model in the corresponding item in column 3 of the table.
Clause 2 – Requirements from which model is exempt
This clause sets out the requirements of the 2024 Determination from which the exempt model is exempt. The types of requirements are listed in column 2 of the table and the relevant Part of the 2024 Determination is listed in the corresponding item in column 3 of the table.
Clause 3 – Supplies to which the exemption applies
This clause provides that the exemption applies in relation to any supplies of the exempt model.
Clause 4 – Specification of conditions of exemption
This clause specifies two conditions to which the exemption is subject.
Condition (a) provides that the packaging of products of the exempt model that are offered for sale or sold must clearly and conspicuously display, on the exterior of that packaging, that the product is for use in lava lamps.
Condition (b) provides that any web page where products of the exempt model is offered for sale or sold must clearly and conspicuously display, on that web page, that the product is for use in lava lamps.
These conditions are imposed to discourage the use and uptake of the exempt model for alternative purposes.
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 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 Program (E3 Program). The E3 Program is an initiative of the Australian, state, self-governing territories, 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; and
- 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 the states, self-governing territories, and the New Zealand Government to:
- identify appliances and other products which are appropriate for regulation;
- consult with industry stakeholders and agree requirements based on technical and product-specific considerations; and
- 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.