Greenhouse and Energy Minimum Standards (Exemption) Instrument (No. 5) 2021

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. 5) 2021

Purpose and operation

Section 37 of the Greenhouse and Energy Minimum Standards (GEMS) Act 2012 (the Act) enables the GEMS Regulator, by legislative instrument, to exempt models of GEMS products from one or more requirements of a GEMS determination in relation to all or specified supplies or uses of products of that model and enables the GEMS Regulator to specify conditions to which the exemption is subject. GEMS determinations are defined in section 11 of the Act.

Section 37 also provides that regulations may be made in order to provide a framework for administrative processes around the submission and assessment of applications for exemption. Division 4.1 of the Greenhouse and Energy Minimum Standards Regulation 2012 (the 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.

The purpose of the Greenhouse and Energy Minimum Standards (Exemption) Instrument (No. 5) 2021 (the Instrument) is to exempt supplies of Mitsubishi Heavy Industries Air‑Conditioners Australia Pty Ltd (Mitsubishi) products specified in Schedule 1, Clause 1 of the Instrument from the GEMS Level requirements, the GEMS Labelling requirements and the Other GEMS requirements contained in Parts 3, 4 and 5 respectively of the Greenhouse and Energy Minimum Standards (Air Conditioners up to 65kW) Determination 2019 (the Determination).

Mitsubishi sell Mitsubishi Heavy Industries-branded air conditioners in Australia. These air conditioner models contain refrigerant gases necessary for their operation. Mitsubishi’s DXK and SRK series models are identical other than their respective model names. Mitsubishi’s SRK series holds approved GEMS Registrations but due to an oversight those registrations do not include the DXK series. DXK and SRK series models use R410A refrigerant and are being phased out and replaced by R32 refrigerant models. Mitsubishi requested an exemption to enable supply of existing stock of the DXK series air conditioner models that utilise R410A refrigerant, a non-flammable refrigerant, to a mining operator. As this refrigerant is non-flammable, it is considered safe and permissible for use at the project sites of Mitsubishi’s proposed customer.

Due to Mitsubishi’s declaration that these models are identical, the exemption has an expiry date that aligns with the date that the first of the SRK model series registrations would expire. As there is no functional difference between the energy consumption levels of the SRK and DXK air conditioner models, with SRK models previously granted registration approval by the GEMS Regulator, there is likely to be no negative impact on Australia’s greenhouse gas emissions. The exemption is also time-limited to ensure consistent alignment with the current, approved SRK model registration.

The GEMS Regulator considered all the matters set out in the Regulation and has decided to grant an exemption from the GEMS Level requirements, the GEMS Labelling requirements and the Other GEMS requirements in the Determination, on the basis there is likely to be no negative impact on Australia’s greenhouse gas emissions as a result of the exemption. This view is formed due to the fact that the SRK model series holds a current, approved registration on the GEMS Regulator’s Registration System and Mitsubishi has declared the DXK models are functionally the same as the SRK model series.

Models covered by exemptions must still be registered under the Act.

Authority

Section 37 of the Act enables the Greenhouse and Energy Minimum Standards (GEMS) Regulator to exempt models of GEMS products from one or more requirements of a GEMS determination. 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 can specify conditions to which the exemption is subject. 

Division 4.1 of the 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.

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 clarifying the exemption application.

Regulatory Impact

There will be no regulatory burden arising from the Instrument. The Office of Best Practice Regulation (OBPR) has advised that such proposals are not likely to have a regulatory impact on business, community organisations or organisations. A Regulatory Impact Statement (RIS) is therefore not required for this proposal. OBPR has advised a RIS is not required for this proposal (OBPR Ref. OBPR21-01112).

Detailed description of provisions in the Instrument

1. Name

Section 1 sets out the name of the Instrument.

2.      Commencement

Section 2 sets out the commencement arrangements for the Instrument.

3.      Authority

Section 3 sets out the provision of the Act under which the Instrument is made.

4.      Definitions

Section 4 sets out definitions of terms used in the Instrument. The term ‘exempt model’ is defined in section 5 of the Instrument.

5.      Exemption

Section 5 exempts the models specified in clause 1 of Schedule 1 to the Instrument (the exempt models) from the requirements specified in clause 2 of Schedule 1.

6.      Conditions of exemption

Section 6 provides that the conditions specified for the purposes of subsection 37(2) of the Act are set out at clause 4 of Schedule 1.

7.      Repeal

Section 7 provides that the Instrument is repealed on 9 October 2023.

Schedule 1 – Exemption

Schedule 1 to the Instrument sets out the following terms:

• the specified exempt models, including model numbers and product descriptions covered by the Instrument (clause 1);
• the requirements of the Determination from which the models are exempt (clause 2);
• the supplies to which the exemption applies (clause 3); and
• the conditions specified for the exemption (clause 4)

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 (Exemption) Instrument (No. 5) 2021

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 (Exemption) Instrument (No. 5) 2021 specifies models of Greenhouse and Energy Minimum Standards (GEMS) products that the GEMS Regulator has exempted from the requirements of Parts 3, 4 and 5 of the Greenhouse and Energy Minimum Standards (Air Conditioners up to 65kW) Determination 2019.

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.