EXPLANATORY STATEMENT
Issued by the Authority of the Assistant Minister for Climate Change and Energy
Greenhouse and Energy Minimum Standards Act 2012
Greenhouse and Energy Minimum Standards Legislation Repeal Instrument 2024
Purpose and Operation
The Greenhouse and Energy Minimum Standards Act 2012 (the GEMS Act) is about promoting the development and adoption of products to reduce energy use and greenhouse gas production. This is achieved by applying greenhouse and energy minimum standards (GEMS) in association with the supply and commercial use of products that use energy, or affect the energy used by another product. These standards are provided for by requirements in Ministerial determinations (GEMS determinations).
The Greenhouse and Energy Minimum Standards Legislation Repeal Instrument 2024 (this Instrument) repeals four (4) legislative instruments made under the GEMS Act:
The 2020 revocation instrument revoked the Greenhouse and Energy Minimum Standards (Refrigerated Cabinets) Determination 2019. However, the 2020 revocation instrument was not repealed by operation of Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003 (the Legislation Act). Therefore, it needs to be repealed by legislative instrument.
The three (3) GEMS determinations have, after consideration in conjunction with participating jurisdictions, been found to be no longer efficient and effective based on the number of registrations for those products on the Energy Rating Registrations Database. GEMS determinations do not sunset under Part 4 of Chapter 3 of the Legislation Act and therefore need to be repealed by legislative instrument.
Accordingly, these legislative instruments no longer need to remain in force, and therefore are repealed in this Instrument.
Further details about this Instrument are set out at Attachment A.
Subsections 44(1) and 54(1) of the Legislation Act provide relevantly that legislative 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. 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. Consequently, this Instrument is not subject to disallowance or sunsetting. Further details are provided at Attachment B.
Authority
This Instrument revokes the 2020 revocation instrument under subsection 35(3) of the GEMS Act. This provision permits the Minister, by legislative instrument, to revoke a GEMS determination without making a replacement determination. The GEMS Act does not include an express power to revoke a legislative instrument that revokes a GEMS determination. However, under subsection 33(3) of the Acts Interpretation Act 1901 (the AI Act), 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.
Accordingly, the effect of subsection 33(3) of the AI Act is that the power under subsection 35(3) of the GEMS Act to make a revocation instrument includes the power to repeal a revocation instrument. Subsection 35(5) of the GEMS Act provides that subsection 33(3) of the AI Act does not apply in relation to a GEMS determination. However, subsection 35(5) of the GEMS Act does not prevent subsection 33(3) of the AI Act from applying in relation to a revocation instrument made under subsection 35(3) of the GEMS Act.
The three (3) GEMS determinations are also revoked under subsection 35(3) of the GEMS Act. As a result of subsection 35(5) of the GEMS Act, GEMS determinations can be revoked only by a legislative instrument made under subsection 35(3) of the GEMS Act. Subsection 35(3) of the GEMS Act only permits the Minister, by legislative instrument, to revoke a GEMS determination without making a replacement determination if the Minister has obtained consent of participating jurisdictions. Approval from Ministers from participating jurisdictions, as required under the Inter-Governmental Agreement for the GEMS Legislative Scheme, has been obtained.
Consultation
On 21 April 2022, public consultation was open for the review of the determinations for ballasts for fluorescent lamps and transformers and electronic step-down converters for ELV lamps. At the time of consultation, it was understood that GEMS determinations expire (sunset) after ten years, and thus the review recommended that the determination expire on 1 April 2023. An extension was provided for submissions from 20 May 2022 to 10 June 2022. There was direct communication with companies with registered products, however there were no submissions received.
On 16 November 2021, public consultation was undertaken on GEMS determinations that were due to expire by 2025 including the digital television set-top boxes determination. At the time of consultation, it was understood that GEMS determinations expire (sunset) after ten years, and thus the review recommended that the determination expire on 1 April 2023. Public consultation closed on 14 December 2021. The four submissions received supported the digital television set top boxes determination expiring on 1 April 2023 because the market for the product is declining.
These public consultations and the lack of registrations of these products over the last 3 years formed the basis of the decision made to repeal the product determinations.
Regulatory Impact
Office of Impact Analysis has been consulted on this Instrument (OIA23-04955). No regulatory impact analysis is required.
Statement of Compatibility with Human Rights
In accordance with subsection 15J(2) of the Legislation Act, as this Instrument is not a disallowable legislative instrument, a statement of compatibility prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is not required.
Attachment A
Detailed description of provisions in the Greenhouse and Energy Minimum Standards Legislation Repeal Instrument 2024
1 Name
Section 1 sets out the title of this Instrument as the Greenhouse and Energy Minimum Standards Legislation Repeal Instrument 2024.
2 Commencement
Section 2 sets out the commencement arrangements for this Instrument. The whole of this Instrument commences on the day after it is registered on the Federal Register of Legislation.
3 Authority
Section 3 provides that this Instrument is made under subsection 35(3) of the Greenhouse and Energy Minimum Standards Act 2012.
4 Schedules
Section 4 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 – Repeals
Schedule 1 lists the legislative instruments that are repealed:
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 (the GEMS Act) (excluding regulations) are exempt from disallowance under subsection 44(1) of the Legislation Act 2003 (the 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 GEMS Scheme) and underpins the Equipment Energy Efficiency (E3) Program. The E3 Program is an initiative of the governments of the Commonwealth, the states and territories, and New Zealand. The GEMS Scheme is an intergovernmental scheme, given that:
Legislative instruments made under the GEMS Act are made for the purposes of this intergovernmental scheme. Therefore, such legislative instruments are 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:
In this context, the exemptions from disallowance and sunsetting have the effect that, where it has been agreed, in accordance with the intergovernmental scheme, 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:
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.