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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
GREENHOUSE AND ENERGY MINIMUM STANDARDS AMENDMENT
(ADMINISTRATIVE CHANGES) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Assistant Minister for Climate Change and Energy,
Senator the Hon Jenny McAllister)
GREENHOUSE AND ENERGY MINIMUM STANDARDS AMENDMENT
(ADMINISTRATIVE CHANGES) BILL 2023
GENERAL OUTLINE
The Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill
2023 (the Bill) would amend the Greenhouse and Energy Minimum Standards Act 2012 (the
Act).
The Act establishes a national framework for regulating the energy efficiency of products
supplied or used within Australia. It also implements Commonwealth, State and Territory
Energy Ministers' commitments to establish national legislation to regulate energy efficiency
and labelling standards for appliances and other products. The Act allows for the setting of
mandatory minimum efficiency requirements for products to drive greater energy efficiency
for regulated products. The Act also allows for nationally consistent labelling requirements to
increase Australians' awareness and provide information on energy efficiency appliance
choices, reduce energy consumption and therefore energy bills and greenhouse gas emissions.
The Act gives effect to certain commitments under the United Nations Framework
Convention on Climate Change to adopt national policies and measures to mitigate climate
change and limit Australia's emissions of greenhouse gases. It also contributes to similar
obligations under the Paris Agreement.
The purpose of this Bill is to implement some of the recommendations of the 2019
independent review of the Act (the Review) and improve the implementation of the Act
through improving regulator performance and reducing administrative burden. The Review
found that the Act is effective in reducing energy use, bills and greenhouse gas emissions,
and delivers these benefits in a streamlined nationally consistent way. However, it also
identified opportunities to add flexibility to the scheme, reduce impacts on the regulated
community and allow it to adapt to changing market conditions and technology
improvements.
FINANCIAL IMPACT STATEMENT
The Bill would have no financial impact on the Australian Government Budget.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill 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. The full Statement of Compatibility with Human Rights is attached to this
Explanatory Memorandum at the Attachment.
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GREENHOUSE AND ENERGY MINIMUM STANDARDS AMENDMENT
(ADMINISTRATIVE CHANGES) BILL 2023
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 would provide that the Greenhouse and Energy Minimum Standards
Amendment (Administrative Changes) Bill 2023 (the Bill), when enacted, is to be
cited as the Greenhouse and Energy Minimum Standards Amendment (Administrative
Changes) Act 2023.
Clause 2 - Commencement
2. Clause 2 would provide for the commencement of the Bill. The table under clause 2
would provide for the commencement of each provision of the Bill as specified.
3. The table in subclause 2(1) would provide that the whole of the Bill commences on the
day after the Bill receives the Royal Assent.
4. The note following that table would explain that the table relates only to the provisions
of the Bill as originally enacted and that it would not be amended to deal with any
later amendments.
5. Subclause 2(2) would clarify that any information in column 3 of the table in subclause
2(1) is not part of the Bill. Information may be inserted in that column, or edited in
this column, in any published version of the Bill.
Clause 3 - Schedules
6. Clause 3 would provide that the legislation that is specified to be amended or repealed
as set out in the Schedule to the Bill has effect according to the terms of the relevant
Schedule.
7. Schedule 1 to the Bill would amend the Greenhouse and Energy Minimum Standards
Act 2012 (the Act) in the manner specified in that Schedule.
SCHEDULE 1 - AMENDMENTS
Part 1 - Customised products
8. Generally, GEMS products need to be registered prior to being supplied or offered for
supply in Australia. The current registration requirements work well for large volume
consumer products regulated by the Act. However, the need for registration at the
time of an offer to supply can be unnecessarily burdensome for customised products
where a supplier may make an offer that never turns into actual supply. Such
customised products may be made to measure (for example, in the case of commercial
refrigeration) or designed to requirements for a particular setting (for example,
heating and cooling a large building). For such customised products, it is not
confirmed the customers will proceed with the purchase at that point, and therefore
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the supplier is not certain that the product will be manufactured.
9. The 2019 independent review of the Act (the Review) recommended that the Act
allowed registration 'at the point a sale is confirmed' for clearly defined customised
products. The suppliers must still comply with the requirements for the relevant
product at the point of supply is confirmed, however such changes would remove
unnecessary regulatory burden at the point of an offer for supply for suppliers of low
volume products designed to meet the customisation of a particular customer.
10. Existing requirements for standardised products would remain unchanged in
accordance with the Review recommendation.
11. Part 1 of the Bill would amend the Act to provide flexibility for suppliers of
customised products in complying with the Act by refining the registration
requirements for such products. This Part of the Bill would implement
recommendation 13 of the Review.
Item 1
12. Section 15 provides a guide to Part 3 (Requirements for suppliers and commercial
users of GEMS products) of the Act by outlining the operation of that Part. The guide
is not intended to be comprehensive and has been included to assist readers to
understand the substantive provisions of the Act. It is intended that readers will rely
on the substantive provisions of the Act.
13. Item 1 of Part 1 of the Bill would amend section 15 of the Act to include reference to
the new registration requirements for customised product in the guide to Part 3 of the
Act. This amendment would be consequential to the amendments outlined in this Part
of the Bill.
Item 2
14. Subsection 17(1) of the Act prohibits the supply, or offer to supply, of a GEMS
product if the product is in a product class covered by a GEMS determination (made
under Part 4 of the Act), and the model of the product is not registered against that
GEMS determination in relation to that product class. Contravention of this
prohibition may result in strict liability offences or civil penalties.
15. Item 2 of Part 1 of the Bill would insert new subsections 17(2A) and (2B) to clarify
that the prohibition in subsection 17(1) does not apply in relation to the offer to
supply customised products. New subsection (2A) would specify that the registration
requirement does not apply to an offer to supply if the relevant GEMS product:
• is or will be manufactured or modified on request by an identified customer to
customised requirements; and
• is covered by a GEMS determination that is prescribed by the GEMS
Regulator; and
• meets any other requirements that are prescribed by the GEMS Regulator.
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16. New subsection 17(2B) would allow the GEMS Regulator to, by legislative
instrument, prescribe the relevant GEMS determinations or requirements for the
purposes of new subsection (2A).
17. The combined effect of new subsections 17(2A) and (2B) would mean that a supplier
of a customised product would not need to register the relevant product at the point of
offering to supply so long as it is covered by any relevant legislative instrument made
by the GEMS Regulator, and meets any prescribed requirements in the legislative
instrument. This would remove the burden for suppliers who are currently required to
register a customised product when they offer this product for supply. For these
customised products, it is not confirmed the customers will proceed with the purchase
at that point, and therefore the supplier is not certain that the particular product will be
manufactured. These new registration arrangements are not intended for large volume
consumer products. Eligibility would be available only to products within the scope of
particular GEMS determinations. As some GEMS determinations cover both large
volume standardised products as well as customised products, these new
arrangements may be limited to just some products covered by a determination.
18. In these circumstances, the supplier would not be committing an offence or
contravening a civil penalty under section 17 of the Act.
19. The ability to prescribe such matters in a legislative instrument made under the Act is
consistent with good regulatory practice. Over time, technological advances and
consumer behaviours are likely to necessitate changes to how products are regulated
under the Act. Furthermore, different products will have different requirements.
Those requirements are in turn subject to change due to technological advances,
consumer behaviours and changes in relevant international and domestic markets for
product and applicable regulatory frameworks. Allowing a legislative instrument to
prescribe such matters provide the necessary flexibility to quickly respond to changes
in the regulatory framework.
Item 3
20. Item 3 of Part 1 of the Bill would add a reference to new subsection 17(9) at the end
of note 2 in both subsections 17(5) and (6). This would be a consequential amendment
to item 4 of Part 1.
Item 4
21. Subsection 17(5) and (6) set out civil penalty provisions for the contravention of the
prohibition at subsection 17(1).
22. Item 4 of Part 1 of the Bill would insert new subsection 17(9) which would clarify the
required evidential burden for persons who seek to rely on new subsection 17(2A) in
civil penalty proceedings for the contravention of subsections 17(5) or (6). New
subsection 17(9) would clarify that a person who wishes to rely on subsection 17(2A)
bears an evidential burden in relation to matters set out in that subsection. Generally,
this would involve the supplier bearing the evidential burden for proving that the
relevant product is a customised product for an identified customer that is covered by
a GEMS determination.
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23. The note following new subsection 17(9) would clarify that in a prosecution for an
offence against existing subsections 17(3) and (4) (strict liability offences for
contravening subsection 17(1)), a defendant who seeks to rely on subsection (2A)
bears an evidential burden in relation to matters in that subsection. The note would
also refer to the reader to subsection 13.3(3) of the Criminal Code.
24. The reversal of the burden of proof is appropriate in these circumstances as the
matters to be proved are matters that would be peculiarly in the knowledge of the
defendant. For instance, the defendant would be best placed to know the circumstance
in which, or purpose for which, the offer for supply for the relevant product was
made, including whether there was an identified customer and whether the product
was to be customised. Further, there may be a number of product requirements
prescribed in legislative instrument by the GEMS Regulator for which that product
must satisfy in order for a defendant to be able to rely on subsection 17(2A). In the
event of a prosecution, it would be significantly more difficult and costly for the
prosecution to disprove all possible circumstances than it would be for a defendant to
establish the existence of the relevant circumstance.
Part 2 - Deemed Compliance
25. GEMS determinations are made under Part 4 of the Act and set out requirements for
products relating to energy use, greenhouse gas production or labelling. They may
also contain other requirements relating to efficiency levels, performance, the
environment, and human health.
26. Sometimes, GEMS determinations may require suppliers to provide a copy of a test
report showing compliance with a particular Australian or overseas standard to
support their application for registration of a GEMS product model. Where the
prescribed standard has been superseded, there may be unintended consequences, for
example, if the GEMS determination still requires compliance with an older standard,
thus requiring additional testing solely for the purpose of registering products in
Australia. The costs associated with this flows on to consumers or in some situations,
limits the supply of the newest energy efficient technologies to Australia.
27. Another issue arises where minor amendments are made to a standard that is included
in a GEMS determination. Under section 33 of the Act, the consent of two-thirds of
the participating jurisdictions under the Act need to agree on an updated standard
ahead of any GEMS determination being made. This creates unnecessary
administrative burden for minor amendments that do not change the policy intent of
the GEMS determination in question.
28. The GEMS Regulator currently is not able to exempt a product from certain
requirements in a GEMS determination, only the determination in full. Further, the
GEMS Regulator can only provide exemptions from a GEMS determination on an ad
hoc basis which creates significant additional administrative burden and may provide
an unfair advantage to suppliers that are provided an exemption.
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29. Part 2 of Schedule 1 of the Bill would provide greater flexibility for how suppliers of
GEMS products can demonstrate compliance with a GEMS determination.
Item 5
30. Item 5 of Part 2 of the Bill would insert new subsection 27A to provide the GEMS
Regulator with a mechanism to accept alternative requirements that can demonstrate
compliance with the Act. New subsection 27A(1) would allow the GEMS Regulator
to make a legislative instrument to declare that specified classes of products, or
specified models of products, are taken to comply with requirements, or aspects of
requirements, of a specified GEMS determination in specified circumstances or if
specified conditions are complied with.
31. New subsection 27A(2) would clarify that without limiting new subsection 27A(1), if
a GEMS determination specifies requirements for conducting tests using specified
methods, conditions specified in the legislative instrument made by the GEMS
Regulator may relate to meeting specified alternative requirements or using specified
alternative test methods.
32. The new section 27A would provide flexibility within the scheme to recognise new
testing methods that are at least equivalent to Australian standards and are adopted in
other markets. It would remove the need for those suppliers to conduct testing
specifically for the Australian market where another standard has already been
complied with. The declaration would apply only in specified circumstances or if
specified conditions are complied with and deemed as a suitable alternative by the
GEMS Regulator. This would allow safeguards to be imposed, which ensure that the
original intent of each GEMS determination is not undermined by the declaration.
33. This would also support the adoption and promotion of the latest energy efficient
technologies which may already be available in international markets and remove the
risk of inadvertently restricting efficient products from entering the Australian market.
34. The ability for the GEMS Regulator to prescribe such matters in a legislative
instrument made under the Act is consistent with good regulatory practice. Over time,
technological advances and consumer behaviours are likely to necessitate changes to
how products are regulated under the Act. Furthermore, different products will have
different requirements. Those requirements are in turn subject to change due to
technological advances, consumer behaviours and changes in relevant international
and domestic markets for specific products and applicable regulatory frameworks.
Allowing a legislative instrument to prescribe such matters provide the necessary
flexibility to quickly respond to changes in the regulatory regimes.
35. Subsection 27A(3) would require that the GEMS Regulator must not make a
declaration under subsection 27A(1) unless the GEMS Regulator is satisfied that
making the declaration is likely to promote the objects of the Act and any
requirements prescribed in regulations are complied with. This requirement would
ensure that any such declaration is likely to promote the objects of the Act, including
by giving effect to Australia's obligations under climate change treaties and
promoting the development and adoption of energy efficient products. This
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requirement is intended to prevent, for example, a declaration which would allow tests
with materially lower accuracy or assurance from being made. However, a declaration
that allowed and facilitated energy efficient products into the Australian market, while
maintaining the intent of the relevant GEMS determination, would likely promote the
Act's objects.
36. Requirements prescribed in regulations (enabled by paragraph 27A(3)(b)) would have
the ability to further limit the circumstances when these declarations can be made by
the GEMS Regulator. This would ensure that the boundaries of the GEMS
Regulator's declaration making power can remain appropriately constrained and fit
for purpose.
37. The ability to prescribe such matters in regulations made under the Act is consistent
with good regulatory practice and ensures continued compliance with Australia's
international obligations under the relevant climate change treaties. Over time,
international obligations and standards may change, and domestic requirements will
need to be able to be quickly updated to reflect these changes, in order to support
decision-makers and ensure both compliance with international obligations and
minimal disruptions to suppliers. In addition, technological advances are likely to
necessitate changes to how products are regulated under the Act. Allowing the
regulations to prescribe such matters provide the necessary flexibility to quickly
respond to changes in the international and domestic regulatory frameworks.
Item 6
38. Item 6 of Part 2 of the Bill would insert new section 34A into the Act. New section
34A would allow the GEMS Regulator to declare that, where a GEMS determination
incorporates matters contained in other instruments or other writing as in force at a
particular time, such as testing or performance standards, and that instrument or other
writing has been subsequently amended or updated, the updated version of the
instrument or other writing applies. This only applies if the GEMS Regulator is
satisfied that the changes incorporated instrument are of a minor nature. The GEMS
Regulator would have regard to the extent and substantive impact of the changes and
how they impact the intent of the relevant GEMS determination in coming to this
view.
39. The effect of this item would mean that the GEMS Regulator may declare, by
legislative instrument, that an incorporated instrument has effect in relation to a
GEMS determination as if that incorporated instrument contained the changes as
specified in the GEMS Regulator's determination.
40. Relevant testing standards for products are frequently subject to minor updates which
would otherwise require a new GEMS determination to be made. Sometimes, this
includes small updates such as fixing typographical errors or machinery changes to
clarify a testing method, or changing a testing method that does not affect the
intended performance outcomes. In these circumstances, the process to make new
GEMS determinations for minor updates is administratively burdensome because
section 33 requires the consent of two-thirds of participating jurisdictions before a
new GEMS determination may be made. This often results in delays in applying the
relevant updates which could leave suppliers needing to use outdated or incorrect
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methods, or different methods than are necessary, for the entry of their products into
other markets. Nonetheless, it is important that any updated incorporated instrument is
first assessed by the GEMS Regulator to ensure that the intent of the GEMS
determination is not compromised by the update.
41. When such a declaration is made, the GEMS Regulator would provide notification
through the relevant departmental website, currently energyrating.gov.au, and through
targeted information channels, including through updates via the GEMS registration
database to ensure participants in the scheme are aware of the alteration.
42. The testing standards that are incorporated in GEMS determinations would generally
be official Australia and New Zealand industry standards which would be readily
available through Standards Australia. Some standards are freely available at the
National Library of Australia and other public state libraries. While not all standards
are freely accessible, it is expected that standards that are incorporated into GEMS
determinations would be industry best practice and would already be widely used by
industry. Therefore, it can be reasonably expected that those who would be regulated
under the Act would already have access to any incorporated standards to carry out
their business or meet their professional obligations.
Part 3 - Enabling timely and more targeted exemptions
43. Suppliers often apply for an exemption from being subject to a GEMS determination
ahead of a GEMS determination coming into force as they have identified potential
issues with meeting the new requirements and want certainty as to how their product
will be dealt with ahead of time. However, exemptions to GEMS determinations can
only be granted once the determination is in force.
44. Part 3 would improve the timeliness of exemptions during the transition to new
requirements and would allow exemptions to be more targeted.
Item 7
45. Section 22 provides a guide to Part 4 (GEMS determinations) of the Act by outlining
the operation of that Part. The guide is not intended to be comprehensive and has been
included to assist readers to understand the substantive provisions of the Act. It is
intended that readers will rely on the substantive provisions of the Act.
46. Item 7 of Part 3 of the Bill would update the guide in section 22 to include reference
to product models able to be exempted from requirements, or aspects of requirements,
of GEMS determinations. This amendment would be consequential to the
amendments outlined in this Part of the Bill
Item 8
47. Subsection 37(1) of the Act allows the GEMS Regulator to exempt a specified model
from one or more relevant requirements of a GEMS determination relating to the
supply or use of products of that model. This does not allow the GEMS Regulator to
make specific exemptions without removing the overarching need to meet the GEMS
level requirements or labelling requirements.
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48. Item 8 of Part 3 of the Bill would amend subsection 37(1) of the Act to allow the
GEMS Regulator to exempt a model from one or more aspects of one or more of the
relevant requirements in a GEMS determination. This would be in addition to the
GEMS Regulator's capacity to exempt products from the whole of any relevant
requirement, or more than one requirement. Adding this power would allow
exemptions to be more focused. This would provide flexibility to grant exemptions
relating to minor issues from the relevant product determination, while ensuring the
availability and promotion of energy efficient products.
49. An example of where exempting an aspect of a requirement may be appropriate is to
allow an alternative or equivalent detergent to be used during testing of a dishwasher
in accordance with the requirements outlined in the GEMS determination. Currently,
the only exemption option available to the GEMS Regulator when the mandated test
detergent is unavailable is to exempt the model from the relevant requirement in the
GEMS determination. As a result, the manufacturer would be unable to display an
Energy Rating Label and there would be a negative impact to consumer choice due to
reduced information at the point of sale.
Item 9
50. Item 9 of Part 3 of the Bill would insert new subsection 37(1A) into the Act. New
subsection 37(1A) would clarify that the GEMS Regulator may grant an exemption
from GEMS determinations which have been made but are not yet in force. This
would cover the GEMS Regulator's ability to exempt products from the whole, or an
aspect, of any relevant requirement.
51. New subsection 37(1A) would provide certainty for suppliers during transitional
periods when new requirements are introduced by aligning the timing for when
exemptions can be granted with when products can be registered against the GEMS
determination.
Part 4 - Product Classes
52. GEMS determinations list classes of products that are covered, and are not covered,
by the determination. GEMS determinations often align with international legislation
and guidelines. However, they may also sometimes take a different approach to
defining product classes. For example, international legislation and guidelines can
base product classes on the products' end use rather than being solely based on a
technical specification of a product, as is currently the case for GEMS determinations.
53. In these instances, it can be difficult for GEMS product classes to be defined in a
manner that harmonises with the scope of the international legislation or standards
that are adopted, especially when attempting to exclude or include products from the
scope of a determination.
54. The GEMS Regulator has identified certain subsets of models covered by a
determination that are difficult to administer, for example for products like motors
which may be supplied within other equipment.
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55. Part 4 of the Bill would provide greater flexibility in defining product classes to
ensure effective descriptions of product classes in GEMS determinations.
Item 10
56. Note 1 under subsection 11(2) of the Act provides a list of matters that may be
specified for a class of products.
57. Item 10 of Part 4 of the Bill would repeal note 1 under subsection 11(2) of the Act.
This is consequential to the amendment at item 12 which would replicate the note as a
substantive provision.
Item 11
58. Item 11 of Part 4 of the Bill would clarify that note 2 under subsection 11(2) would be
the 'note'. This would be an editorial change to clarify the numbering of notes in
subsection 11(2) of the Act, consequential to the amendment at item 10.
Item 12
59. Subsection 11(2) of the Act defines the term GEMS determination to be a
determination made by the Minister under section 23 of the Act that:
• specifies one or more classes of products that it covers; and
• specifies requirements for products in those product classes (in accordance
with Part 4 of the Act).
60. Item 12 of Part 4 of the Bill would insert new subsection 11(2A). New subsection
11(2A) would provide further clarity on how a class of product may be specified in a
GEMS determination. A class of product would be able to be specified in any way
including, but not limited to, by reference to the following:
• the function the products perform;
• the materials from which the products are manufactured;
• the size or capacity of the products;
• whether the products contain a particular feature or are capable of operating in
different modes;
• the intended or expected end use of the products.
61. The purpose of this amendment is to provide greater certainty on how a class of
product may be specified by moving existing note 1 of subsection 11(2) of the Act
into a substantive provision.
62. It would also clarify that a product class may be defined by the intended or expected
use of the product. This would provide further flexibility for GEMS determinations in
specifying product classes, including by allowing determinations to align with
international regulations which often uses this method in identifying product classes.
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Item 13
63. Section 26 of the Act sets out the GEMS labelling requirements for a product class.
Some of these requirements include:
• requirements relating to the information that must be communicated in
connection with supplying or offering to supply products in that product class
(paragraph 26(1)(a));
• requirements relating to the matter in which that information must be
communicated (paragraph 26(1)(b)).
64. Item 13 of Part 4 of the Bill would insert new paragraph 26(2)(d) into the Act. New
paragraph 26(2)(d) would have the effect that a requirement may only be specified
under paragraphs 26(1)(a) or (b) for the purpose of ensuring that, if the product class
is specified by reference to the intended or expected end use of the product, the
intended or expected end use is communicated in connection with supplying or
offering to supply products in that class.
65. This would ensure that if the product is being supplied for a certain end use, it must
be appropriately labelled and communicated.
Part 5 - Requirements in GEMS determinations (other requirements)
66. While GEMS determinations must specify either or both GEMS level requirements
and GEMS labelling requirements for each product class covered in the determination
(subsection 24(1)), they may also specify other requirements for a product class
covered by the determination. These 'other requirements' are limited to the matters
set out in section 27 of the Act.
67. Part 5 of the Bill would allow certain 'other requirements' to be made under
determinations which have labelling requirements but do not set minimum standards
for energy use.
Item 14
68. Existing subsection 27(3) of the Act limits the ability to set requirements relating to
product performance or the impacts of products on environmental or human health to
GEMS determinations that also specify GEMS level requirements for the particular
product class. This means that if a GEMS determination specifies labelling
requirements but does not set minimum performance requirements (GEMS level
requirements), the determination cannot include these 'other requirements'.
69. Item 14 of Part 5 of the Bill would repeal subsection 27(3) of the Act and substitute
with a new subsection 27(3). New subsection 27(3) would allow requirements to be
specified relating to product performance or the impact of products on environmental
or human health only if:
• the GEMS determination also specifies GEMS level requirements for the product
class; or
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• all of the following apply:
o the GEMS determination also specifies GEMS labelling requirements for
the product class;
o the requirements relating to performance of products or impact or products
on the environment or human health enhance the efficacy of the GEMS
labelling requirements;
o those GEMS labelling requirements relate to one or more matters specified
in subsection 27(2) (which sets out the matters that a requirement for high
efficiency levels must relate to).
70. The amendment would avoid the need to impose GEMS level requirements in a
GEMS determination when GEMS labelling requirements, with appropriate
supporting 'other requirements', would achieve the same emissions reduction
outcome with lower compliance costs. The relevant requirements relating to the
performance of products, or their impact on human health or the environment, would
need to be imposed to support the effectiveness of the GEMS labelling requirements
related to energy use or greenhouse gas emissions.
Part 6 - GEMS Regulator
71. Part 6 of the Bill would amend the Act so that the GEMS Regulator position can be
occupied by a person acting as an SES employee, and that references to the GEMS
Regulator refer to the substantive or acting SES employee in that position (as the case
may be). This would improve the timeliness, efficiency, and effectiveness of the
administration of the Act when the substantive GEMS Regulator is absent from duty
or when long-term acting arrangements are in place.
72. Part 6 of the Bill would also modernise references to the GEMS Regulator in the Act
to align with best practice drafting standards.
Item 15
73. Item 15 of Part 6 of the Bill would amend existing subsections 39(2), 40(2), 43(2), (3)
and (4), 46(3) and (4), 47(5) and (6) and 53(1) of the Act to omit references to 'he or
she' and substitute with 'the GEMS Regulator'.
74. This would be an editorial amendment intended to align the Act with best practice
modern drafting.
Item 16
75. Section 69 of the Act provides a guide to Part 6 (The GEMS Regulator) of the Act by
outlining the operation of that Part. The guide is not intended to be comprehensive
and has been included to assist readers to understand the substantive provisions of the
Act. It is intended that readers will rely on the substantive provisions of the Act.
76. Item 16 of Part 6 of the Bill would amend section 69 of the Act to include reference to
an acting SES employee occupying the position of GEMS Regulator (alongside an
SES employee) in the Guide to Part 6 of the Act. This amendment would be
consequential to the amendments outlined in this Part of the Bill.
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Item 17
77. Section 70 of the Act provides that the Secretary must designate a position in the
Department as the position of GEMS Regulator.
78. Item 17 of Part 6 of the Bill would amend subsection 70(2) to specify that the position
of GEMS Regulator may be occupied by an acting SES employee in addition to a
substantive SES employee (as the case may be). The term acting SES employee would
have the same meaning as in the Public Service Act 1999.
79. The purpose of this amendment would improve the efficiency and effectiveness of the
administration of the Act by ensuring that a person who is acting in an SES position
with administrative responsibility for the Act may also act in the GEMS Regulator
position. This amendment would especially reduce administrative burden in cases
when the substantive GEMS Regulator is absent from duty or when long-term acting
arrangements are in place.
Item 18
80. Item 18 of Part 6 of the Bill would amend the definition of GEMS Regulator in
subsection 70(3) to specify that it may be an acting SES employee in addition to a
substantive SES employee (as the case may be). The term acting SES employee would
have the same meaning as in the Public Service Act 1999.
81. This amendment would be consequential to the amendments at item 17, which allow
for an acting SES employee to occupy the position of GEMS Regulator.
Item 19
82. Item 19 of Part 6 of the Bill would amend the note under section 76 to clarify that the
GEMS Regulator is an SES employee or acting SES employee (as the case may be) in
the Department and therefore, does not have legal identity separate from the
Commonwealth.
83. This amendment would be consequential to the amendments at item 17, which would
allow for an acting SES employee to occupy the position of GEMS Regulator.
Item 20
84. Item 20 of Part 6 of the Bill would amend sections 77, 78 and 80 of the Act to omit
references to "his or her" and substitute with "the GEMS Regulator's".
85. This would be an editorial amendment intended to align the Act with best practice
modern drafting.
Item 21
86. Item 21 of Part 6 of the Bill would amend subsections 87(8), 88(7) and 130(4) of the
Act to omit references to "his or her" and substitute with "the GEMS Regulator's".
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87. This would be an editorial amendment intended to align the Act with best practice
modern drafting.
Item 22
88. Item 22 of Part 6 of the Bill would amend subsection 162(1) of the Act to omit
references to "he or she" and substitute with "the GEMS Regulator".
89. This would be an editorial amendment intended to align the Act with best practice
modern drafting.
Part 7 - Grandfathering of compliant products
90. Paragraphs 16(2)(c) and 18(2)(d) of the Act has the effect that products that cannot
meet a new or revised GEMS determination requirements may be 'grandfathered' and
may continue to be supplied if the products were imported into, or manufactured in,
Australia before a GEMS determination came into effect. Provided they could legally
be supplied prior to the GEMS determination, they can continue to be supplied
without having contravened the prohibitions on supplying a non-compliant product set
out in sections 16 (for general purposes) and 18 (for commercial purposes).
91. Part 7 of the Bill would extend the 'grandfathering' exemptions from the prohibition
on supplying, or offering to supply, a model of a product that is not registered. The
amendments in this Part would also implement recommendation 18 of the Review.
Item 23
92. Subsection 17(1) of the Act prohibits a person from supplying, or offering to supply, a
GEMS product if the product is in a product class covered by a GEMS determination,
and the model of the product is not registered against that relevant GEMS
determination. Contravention of this prohibition may result in a strict liability offence
or civil penalty (see subsections 17(3) to (6)). Exemptions to the prohibition are set
out in subsection 17(2) of the Act.
93. Item 23 of Part 7 of the Bill would add a new paragraph 17(2)(c) to specify that the
prohibition set out in subsection 17(1) would not apply if:
• the product is imported into, or the product's last process of manufacture is
performed in, Australia at a time (the earlier time) before the GEMS
determination comes into force; or
• if there is a limited grandfathering period specified in the GEMS determination for
the product class (as enabled by section 31 of the Act) - the supply or offer to
supply occurs before the end of that period; or
• all transitional GEMS labelling requirements set out in the GEMS determination
are complied with in supplying or offering to supply the product; or
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• the product currently complies with any pre-existing GEMS determination that
was in force at the earlier time; or
• if there was no such pre-existing GEMS determination - the supply of the product
(or an offer to supply the product) in a State or Territory at the earlier time would
not have contravened a law of the State or Territory relating to energy use by
products, or greenhouse gases resulting from operating products.
94. The effect of this amendment would establish a 'grandfathering' exemption for
models not registered at the point of supply, or offer to supply, in specified
circumstances. This ensures that models that comply with existing GEMS
determinations (or can legally be supplied) at the point of importation or manufacture,
may still be supplied.
95. This amendment would also create consistency with the requirement to comply with
GEMS determinations, which has similar grandfathering arrangements, and reduce
administrative burden on both the GEMS Regulator and industry, without affecting
energy efficiency outcomes.
Item 24
96. Item 24 of Part 7 of the Bill would amend subsection 17(7) of the Act as a
consequential amendment to item 23. New subsection 17(7) would have the effect of
specifying that in a prosecution for an offence against subsections 17(3) or (4), which
contain strict liability offences for supplying, or offering to supply, an unregistered
model of product, the prosecution bears an evidential burden in relation to the
grandfathering exemption set out in new paragraph 17(2)(c), despite subsection
13.3(3) of the Criminal Code.
97. Subsection 13.3(3) of the Criminal Code provides that a defendant who intends to
rely on an exemption bears the evidential burden. However, in this case it is
considered that the prosecution would have particular knowledge of the evidentiary
matter at hand. Therefore, it is more appropriate in these circumstances that the
prosecution bears the evidential burden and not the defendant. This approach is also
consistent with the current operation of existing subsection 17(7) of the Act.
Item 25
98. Item 25 of Part 7 of the Bill would amend paragraph 17(8)(b) of the Act as a
consequential amendment to item 23. New paragraph 17(8)(b) would have the effect
of specifying that in a proceeding for a civil penalty order for contraventions of
subsections 17(5) or (6), which contain civil penalty provisions for supplying, or
offering to supply, an unregistered model of product, the person applying for the order
bears an evidential burden in relation to the grandfathering exemption set out in new
paragraph 17(2)(c). This is in addition to other matters already specified in existing
paragraph 17(8)(b) of the Act.
99. Generally, for civil penalties, there is a presumption that the individual who intends to
rely on the exception bears the evidential burden. However, in this case it is
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considered that the applicant would have particular knowledge of the evidentiary
matter at hand. Therefore, it is more appropriate in these circumstances that the
applicant bears the evidential burden and not the respondent. This approach is also
consistent with the current operation of existing paragraph 17(8)(b) of the Act.
Item 26
100. Subsection 19(1) of the Act prohibits a person from supplying, or offering to supply,
a GEMS product for a commercial purpose if the product is in a product class covered
by a GEMS determination, the model of the product is not registered against that
relevant GEMS determination, and that is the person's first use of the GEMS product.
Contravention of this prohibition may result in a strict liability offence or civil penalty
(see subsections 19(3) to (6)). Exemptions to the prohibition are set out in subsection
19(2) of the Act.
101. Item 26 of Part 7 of the Bill would add a new paragraph 19(2)(d) to specify that the
prohibition set out in subsection 19(1) would not apply if:
• the product is imported into, or the product's last process of manufacture is
performed in, Australia at a time (the earlier time) before the GEMS
determination comes into force; or
• there is a limited grandfathering period under the GEMS determination for the
product class (as enabled by section 31 of the Act) - the use of that product occurs
before the end of that period; or
• the product currently complies with any pre-existing GEMS determination that
was in force at the earlier time; or
• if there was no such pre-existing GEMS determination - the use of the product for
a commercial purpose in a State or Territory at the earlier time would not have
contravened a law of the State or Territory relating to energy use by products, or
greenhouse gases resulting from operating products.
102. The effect of this amendment would establish a 'grandfathering' exemption for
models of products used for commercial purposes and not registered in specified
circumstances. This ensures that models that comply with existing GEMS
determinations (or can legally be supplied) at the point of first use, may still be
supplied.
103. This amendment would also create consistency with the requirement to comply with
GEMS determinations, which has similar grandfathering arrangements, and reduce
administrative burden on both the GEMS Regulator and industry, without affecting
energy efficiency outcomes.
Item 27
104. Item 27 of Part 7 of the Bill would amend subsection 19(7) of the Act as a
consequential amendment to item 26. New subsection 19(7) would have the effect of
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specifying that in a prosecution for an offence against subsections 19(3) or (4), which
contain strict liability offences for using an unregistered model of product for
commercial purposes, the prosecution bears an evidential burden in relation to the
grandfathering exemption set out in new paragraph 19(8)(d), despite subsection
13.3(3) of the Criminal Code.
105. Subsection 13.3(3) of the Criminal Code provides that a defendant who intends to
rely on an exemption bears the evidential burden. However, in this case it is
considered that the prosecution would have particular knowledge of the evidentiary
matter at hand. Therefore, it is more appropriate in these circumstances that the
prosecution bears the evidential burden and not the defendant. This approach is also
consistent with the current operation of existing subsection 19(7) of the Act.
Item 28
106. Item 28 of Part 7 of the Bill would amend paragraph 19(8)(b) of the Act as a
consequential amendment to item 26. New paragraph 19(8)(b) would have the effect
of specifying that in a proceeding for a civil penalty order for contraventions of
subsections 19(5) or (6), which contain civil penalty provisions using an unregistered
model of product for commercial products, the person applying for the order bears an
evidential burden in relation to the grandfathering exemption set out in new paragraph
19(8)(d). This is in addition to other matters already specified in existing paragraph
19(8)(b) of the Act.
107. Generally, for civil penalties, there is a presumption that the individual who intends
to rely on the exception bears the evidential burden. However, in this case it is
considered that the applicant would have particular knowledge of the evidentiary
matter at hand. Therefore, it is more appropriate in these circumstances that the
applicant bears the evidential burden and not the respondent. This approach is also
consistent with the current operation of existing paragraph 19(8)(b) of the Act.
Part 8 - Extension of time to pay fees
108. Part 8 of the Bill would give the GEMS Regulator the power to extend the time to
pay application fees that would otherwise be payable.
Item 29
109. Section 49 of the Act sets out the grounds where the GEMS Regulator may suspend
a model's registration in relation to a product class.
110. Item 29 of Part 8 of the Bill would add new paragraph 49(aa) to the Act. New
paragraph 49(aa) would provide grounds for the GEMS Regulator to suspend a
model's registration if an amount payable for that registration application is not paid.
This would ensure that failure to pay an application fee within the extended time may
result in consequences to the registration associated with that application. This was
found to be of particular importance during natural disasters and supply chain
interruptions during the COVID-19 pandemic.
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Item 30
111. Subsection 54(1) of the Act sets out the grounds where the GEMS Regulator may
cancel a model's registration in relation to a product class.
112. Item 30 of Part 8 of the Bill would remove the need for the GEMS Regulator to be
satisfied of each of the grounds for cancellation under subsection 54(1) of the Act.
This is consequential to the amendments set out in items 32 to 36, which would
instead impose the requirement for the GEMS Regulator to be satisfied on each
ground for cancellation individually, where appropriate.
Item 31
113. Item 31 of Part 8 of the Bill would insert new paragraph 54(1)(aa). New paragraph
49(aa) would provide grounds for the GEMS Regulator to cancel a model's
registration if an amount payable for that registration application is not paid. This
would ensure that failure to pay an application fee within the extended time may
result in consequences to the registration associated with that application.
Items 32
114. Items 32 of Part 8 of the Bill would amend paragraph 54(1)(a) to specify that the
GEMS Regulator must be satisfied of the matters in that paragraph in order to cancel
a model's registration in relation to a product class.
115. This amendment would be editorial only. It would not change the effect of paragraph
54(1)(a) nor the grounds for cancellation.
Items 33
116. Items 33 of Part 8 of the Bill would amend paragraph 54(1)(b) to specify that the
GEMS Regulator must be satisfied of the matters in that paragraph in order to cancel
a model's registration in relation to a product class.
117. This amendment would be editorial only. It would not change the effect of paragraph
54(1)(b) nor the grounds for cancellation.
Items 34
118. Items 34 of Part 8 of the Bill would amend paragraph 54(1)(c) to specify that the
GEMS Regulator must be satisfied of the matters in that paragraph in order to cancel
a model's registration in relation to a product class.
119. This amendment would be editorial only. It would not change the effect of paragraph
54(1)(c) nor the grounds for cancellation.
Items 35
120. Items 35 of Part 8 of the Bill would amend paragraph 54(1)(d) to specify that the
GEMS Regulator must be satisfied of the matters in that paragraph in order to cancel
a model's registration in relation to a product class.
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121. This amendment would be editorial only. It would not change the effect of paragraph
54(1)(d) nor the grounds for cancellation.
Items 36
122. Items 36 of Part 8 of the Bill would amend paragraph 54(1)(e) to specify that the
GEMS Regulator must be satisfied of the matters in that paragraph in order to cancel
a model's registration in relation to a product class.
123. This amendment would be editorial only. It would not change the effect of paragraph
54(1)(e) nor the grounds for cancellation.
Item 37
124. Under subsection 64(5) of the Act, the GEMS Regulator may waive, reduce or
refund application fees that are payable under the Act. However, there is no power to
provide extensions of time to make payments to assist in cases of financial hardship or
during emergency situations, such as where the regulated community are affected by
extreme weather events.
125. Item 37 of Part 8 of the Bill would insert new subsections 64(5A) and (5B) into the
Act. These new subsections would have the combined effect of allowing the GEMS
Regulator to extend the time for payment of the whole or a part of a fee that would
otherwise be payable. The extended period of time would not be limited by these new
provisions and would be as the GEMS Regulator determines.
126. If the GEMS Regulator decides to extend the time for payment, the application fee
would still be payable in accordance with the decision made by the GEMS Regulator.
In these instances, the application to which the fee relates to may still be progressed
regardless of whether the fee has been paid yet.
127. A decision by the GEMS Regulator made under new subsection 64(5A) to extend
timing for payment would not be merits reviewable as it would not be appropriate in
the circumstances in which such a decision may be made. A decision under subsection
64(5A) is intended to only be made in cases of financial hardship or during
emergency situations such as extreme weather events. Therefore, a decision of this
nature would have no appropriate remedy in these circumstances as such a decision
would only operate in a short period of time, during specific circumstances, and it
would be likely that the decision's effect would be spent by the time of the review.
128. The Administrative Review Council has recognised that it is justifiable to exclude
merits review in relation to decisions of this nature (see paragraph 4.50 of What
decisions should be subject to merits review?).
Item 38
129. Subsection 66(1) of the Act sets out the grounds where an application made under
Part 5 of the Act (registering models of GEMS products) may be refused.
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130. Item 38 of Part 8 of the Bill would insert new paragraph 66(1)(aa). New paragraph
66(1)(aa) would provide grounds for an application to be refused if an amount
payable for that registration application is not paid. This would ensure that failure to
pay an application fee within the extended time may result in consequences to the
registration associated with that application if the application has not yet been
decided.
Item 39
131. Item 39 would provide for application provisions to clarify how the proposed
amendments in Part 8 of the Bill are to be applied to the existing provisions of the
Act.
132. Subitem 39(1) of Part 8 of the Bill would provide for the application of amendments
proposed by items 29 and 31, which relate to grounds for suspension or cancellation
of a model's registration where the application fee has not been paid. These grounds
would apply in relation to a registration that results from an application made on or
after the Bill's commencement.
133. Subitem 39(2) of Part 8 of the Bill would provide for the application of amendments
proposed by items 37 and 38, which relate enable the GEMS Regulator to extend the
period of time in which application fees may be paid, and relate to grounds for refusal
of an application to register a model where the application fee has not been paid.
These amendments would apply to an application made on or after the Bill's
commencement.
Part 9 - Other amendments
134. The Equipment Energy Efficiency program (E3 program) is an initiative of the
Australian Government, States and Territories and the New Zealand Government to
deliver a single, integrated program on energy efficiency standards and energy
labelling for equipment and appliances.
135. As part of the E3 program, the Intergovernmental Agreement for the Greenhouse
and Energy Minimum Standards Legislative Scheme (the IGA) enables the Act to
establish a national framework for regulating the energy efficiency of products
supplied or used within Australia. The Act also implements Australian Government
and Commonwealth, State and Territory Energy Ministers' commitments, as outlined
in the IGA, to establish national legislation to regulate energy efficiency and labelling
standards for appliances and other products.
136. Part 9 of the Bill would deal with other amendments to clarify that one of the objects
of the Act is to facilitate the operation of the IGA.
Item 40
137. Section 4 of the Act sets out the objectives of the Act.
138. Item 40 of Part 9 would add new paragraph 4(aa) of the Act. The effect of this
amendment would be to add a new object to the Act. New paragraph 4(aa) would
clarify that one of the objects of the Act is to facilitate the operation of an
intergovernmental scheme involving the Commonwealth and one or more other
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participating jurisdictions in relation to equipment energy efficiency. While this has
always been the case during the existence of the Act, this amendment is intended to
provide further clarity and transparency on the objects of the Act. Further, this
amendment would not change the purpose, scope, nor operation of the Act.
139. This amendment would also provide further clarity on the existing status of
legislative instruments made under the Act, which are exempt from disallowance and
sunsetting requirements under the Legislation Act 2003. This amendment would not
change this exemption but would simply provide further clarity.
140. Subsections 44(1) and 54(1) of the Legislation Act 2003 respectively provide that
section 42 (concerning disallowance) and Part 4 of Chapter 3 (concerning sunsetting)
of that Act do not apply in relation to a legislative instrument, or a provision of a
legislative instrument, if the enabling legislation for the instrument 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.
141. Legislative instruments made under the Act are exempt on this basis because they
are made under the Act, which facilitates the operation of the IGA and E3 program,
which are intergovernmental schemes involving the Commonwealth, States and
Territories and New Zealand (in the case of the E3 program), and the Act authorises
legislative instruments to be made for the purposes of implementing those schemes.
142. While this means that legislative instruments made under the Act are be subject to
reduced parliamentary scrutiny, this is appropriate as the Parliament should not be
able to unilaterally disallow instruments that are part of a multilateral scheme; nor (for
the same reasons) should such instruments be able to sunset. Such actions may
potentially undermine the operation of the intergovernmental scheme and cooperation
between the parties involved and create significant uncertainty in the regulation of
energy efficiency in products.
143. Therefore, it would be appropriate for this amendment to be included in the objects
of the Act to provide clarity and transparency on the existing operation of the Act and
legislative instruments made under it.
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ATTACHMENT
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 Amendment (Administrative Changes)
Bill 2023
This Bill is compatible with human rights and freedom recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill
2023 (the Bill) would amend the Greenhouse and Energy Minimum Standards Act 2012 (the
Act).
The Act establishes a national framework for regulating the energy efficiency of products
supplied or used within Australia, implementing Australian Government and Commonwealth,
State and Territory Energy Ministers' commitments to establish national legislation to
regulate energy efficiency and labelling standards for appliances and other products. The Act
allows for the setting of mandatory minimum efficiency requirements for products to drive
greater energy efficiency for regulated products. The Act also allows for nationally consistent
labelling requirements to increase Australians' awareness and provide information on energy
efficiency appliance choices, reduce energy consumption and therefore energy bill and
greenhouse gas emissions.
The Act gives effect to certain commitments under the United Nations Framework
Convention on Climate Change to adopt national policies and measures to mitigate climate
change and limit Australia's emissions of greenhouse gases. It also contributes to similar
obligations under the Paris Agreement.
The purpose of this Bill is to implement some of the recommendations from the 2019
independent review of the Act and improve the implementation of the Act by improving
regulator performance and reducing administrative burden. The Review found that the Act is
effective in reducing energy use, bills and greenhouse gas emissions, and delivers these
benefits in a streamlined nationally consistent way. However, it also identified opportunities
to add flexibility to the scheme, reduce impacts on the regulated community and allow the
scheme to adapt to changing market conditions and technology improvements.
Human Rights Implications
This Bill engages the right to the presumption of innocence in Article 14(2) of the
International Covenant on Civil and Political Rights (the ICCPR).
Right to the presumption of innocence
Laws that shift the burden of proof to a defendant can be considered a limitation of the
presumption of innocence in Article 14(2) of the ICCPR. Where a defendant bears an
23
evidential burden in relation to an exception to an offence, it means the defendant bears the
burden of adducing or pointing to evidence that suggests a reasonable possibility that the
exception has been met. Reversing the burden of proof is not necessarily inconsistent with the
presumption of innocence, provided that the reversal pursues a legitimate objective and is
reasonable, necessary and proportionate to achieving that object. Whether the right to the
presumption of innocence is limited will depend on the circumstances and justification for the
reverse burden.
Item 4 of Part 1 of the Bill would clarify that the supplier is responsible for proving that the
model is a bespoke product in proceedings for a civil penalty order. The accompanying note
would clarify that a defendant who seeks to rely on subsection (2A) bears the burden of
proving that the model is a bespoke product. This is implemented for consistency with
subsection 17(8) of the Act.
The reversal is justified in these instances, as the matters to be proved are matters that would
be peculiarly in the knowledge of the defendant. For instance, the defendant would be best
placed to know the circumstance in which, or purpose for which, the offer for supply for the
relevant product was made, including whether there was an identified customer. Further,
there may be a number of products and requirements prescribed in legislative instrument by
the GEMS Regulator for which that product must meet. In the event of a prosecution, it
would be significantly more difficult and costly for the prosecution to disprove all possible
circumstances than it would be for a defendant to establish the existence of one potential
circumstance. The reversal in these circumstances is consistent with the principles set out in
the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers.
Consequently, in order to effectively regulate energy efficiency in products and reduce
greenhouse gas emissions, it is reasonable, necessary and proportionate to reverse the burden
of proof in these circumstances and limit the right to the presumption of innocence.
Conclusion
The Bill is compatible with human rights. To the extent that it engages and limits the right to
the presumption of innocence under Article 14(2) of the ICCPR, those limitations are
reasonable, necessary and proportionate to achieve the legitimate aims of the Bill.
Circulated by authority of the Assistant Minister for Climate Change and Energy,
Senator the Hon Jenny McAllister
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