Commonwealth of Australia Explanatory Memoranda

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GREENHOUSE AND ENERGY MINIMUM STANDARDS AMENDMENT (ADMINISTRATIVE CHANGES) BILL 2023

                                   2022-2023




    THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                   SENATE




GREENHOUSE AND ENERGY MINIMUM STANDARDS AMENDMENT
         (ADMINISTRATIVE CHANGES) BILL 2023




         ADDENDUM TO THE EXPLANATORY MEMORANDUM




(Circulated by 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
This addendum responds to a request by the Senate Standing Committee for the Scrutiny of
Bills in Scrutiny Digest No. 8, dated 2 August 2023.
GENERAL OUTLINE
The Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill
2023 (the Bill) would implement some of the recommendations of the 2019 independent review
of the Greenhouse and Energy Minimum Standards Act (the Review) and improve the
implementation of the Act through improving regulator performance and reducing
administrative burden.
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.
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.
The Ministerial Council responsible for the IGA, comprising of Ministers from each
jurisdiction, maintains the Inter-Jurisdictional Advisory Committee (the IJAC) to advise the
Ministerial Council. The IJAC has lead responsibility for developing proposals for new or
revised GEMS requirements, in consultation with the GEMS Regulator and relevant
stakeholders. This includes the development and international harmonisation of test procedures
and standards.


NOTES ON CLAUSES
Item 5
   1. Item 5 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.
   2. Proposed 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.
   3. For example, the GEMS Regulator could make a declaration allowing new, up-to-date
      or equivalent international testing standards or methods to be used and remove the need
      for those suppliers to conduct additional testing specifically for the Australian market.
      This measure would reduce the risk of inadvertently restricting energy efficient


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   products from entering the Australian market and reduce regulatory burden on suppliers
   of GEMS products, by introducing greater flexibility for suppliers to demonstrate
   compliance with a GEMS determination.
4. To exercise the powers proposed under subsection 27A(1), the GEMS Regulator would
   engage with the IJAC to ensure the declaration made is fit for purpose and adjust the
   declaration as necessary based on IJAC feedback. The Ministerial Council responsible
   for the IGA would then need to approve the new or revised GEMS requirements and
   timing for their introduction. This process ensures Ministerial oversight of any
   declaration made.
5. It is necessary and appropriate to leave declarations of compliance to delegated
   legislation because of the requirement for flexibility. As the regulatory regime may
   quickly change due to technological advances, consumer behaviours and international
   and domestic markets, it is necessary to ensure that the GEMS Regulator can respond
   to these changes and efficiently and effectively make and implement declarations under
   proposed subsection 27A(1).
6. As a matter of administrative and regulatory best practice, the GEMS Regulator would
   be able to review declarations made at any time to respond to changing regulatory
   settings, or on a regular basis, to ensure that a declaration remains fit for purpose. This
   flexibility would also allow the GEMS Regulator to best target areas of review in the
   context of the entire GEMS legislative framework.
7. Proposed subsection 27A(3) limits the ability of the GEMS Regulator to make such a
   declaration. The GEMS Regulator may only make a declaration if they are satisfied that
   the declaration would be likely to promote the objects of the GEMS Act, and that any
   prescribed requirements in the regulations are complied with.
8. Read together, these provisions strike the appropriate balance to provide the necessary
   flexibility to respond quickly to changes in the regulatory regime due to technological
   advances, consumer behaviours and international and domestic markets. The limitation
   in proposed subsection 27A(3) provides an appropriate safeguard in primary legislation
   that limits matters that may be in delegated legislation.




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