1Short title
This Act may be cited as the Greenhouse and Energy Minimum Standards Act 2012.
Parliamentary material from APH and the Federal Register of Legislation. Links open the official source in a new tab.
Bill homepage (APH)This Act may be cited as the Greenhouse and Energy Minimum Standards Act 2012.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 21 September 2012 |
2. Sections 3 to 16 | 1 October 2012. | 1 October 2012 |
3. Section 17 | 1 October 2013. | 1 October 2013 |
4. Sections 18 to 177 | 1 October 2012. | 1 October 2012 |
This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Overview
This Act is about promoting the development and adoption of products to reduce energy use and greenhouse gas production (see the objects in Division 3 of this Part).
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).
Key concepts (Part 2)
The key concepts used in this Act are unfolded in Part 2. These include GEMS products, GEMS determinations, models of GEMS products, registration of models against GEMS determinations, and supplying (or offering to supply) GEMS products.
Supply and commercial use of products (Part 3)
Generally speaking, a product (a GEMS product) covered by a GEMS determination can only be supplied or offered for supply, or used for a commercial purpose, if:
the model of the product is registered under this Act against the determination; and
the product complies with the determination; and
the supply, offer or use complies with the determination.
Contravention of these rules may result in prosecution for offences or exposure to liability for civil penalties.
GEMS determinations and registration (Parts 4, 5 and 6)
GEMS determinations cover different product classes. They specify requirements for energy consumption, greenhouse gas production, labelling and some other matters, including the environment and human health.
Generally speaking, all models of GEMS products must be registered on the GEMS Register to make sure they comply with relevant GEMS determinations. A senior officer of the Department (the GEMS Regulator) is responsible for the registration system and, more broadly, the administration of this Act.
Monitoring, investigation and enforcement (Parts 7 and 8)
GEMS inspectors may enter public areas of premises used in connection with the supply of GEMS products. GEMS inspectors may purchase GEMS products there (and exercise certain other powers) in order to investigate compliance with this Act.
GEMS inspectors and the GEMS Regulator have powers to monitor compliance with this Act, to monitor whether information given under this Act is correct and to investigate suspected non‑compliance with this Act. Infringement notices may be issued for suspected contraventions of civil penalty provisions of this Act. Enforceable undertakings and injunctions may be used to enforce compliance with this Act.
Details of offences, contraventions and adverse decisions, including the names of those involved, may also be publicised.
Merits review and protection of information (Parts 9 and 10)
Decisions about registration may be reviewed internally and by the Administrative Review Tribunal. The Act also protects commercially sensitive information against unauthorised disclosure.
Introductory matters (Part 1)
There is a Dictionary in Division 4 of this Part. The Dictionary is a list of every term that is defined in this Act. A term is either defined in the Dictionary itself, or elsewhere in this Act. If a term is defined elsewhere, the Dictionary includes a signpost.
The application of this Act to the Crown and in the external Territories is dealt with in Division 5 of this Part. That Division also sets out the constitutional application of this Act and provides for when this Act is intended to operate concurrently with State and Territory laws.
The objects of this Act are:
to give effect to certain obligations that Australia has under the Climate Change Convention; and
to give effect to certain obligations that Australia has under the Paris Agreement; and
to facilitate the operation of an intergovernmental scheme involving the Commonwealth and one or more other participating jurisdictions in relation to equipment energy efficiency; and
to promote improved energy performance through better energy use and management of the demand put on the energy system; and
to promote the development and adoption of products that:
use less energy; or
produce fewer greenhouse gases; or
contribute to reducing the amount of energy used, or greenhouse gases produced, by other products.
In this Act:
acquisition of property: see section 174.
affected:
for when a model’s registration in relation to a product class is affected by a replacement determination—see subsection 13(3); and
for when a person is affected by a reviewable decision—see section 164.
agency means:
a Department of State; or
any agency, authority or body (whether incorporated or not) established for a public purpose by or under a law of the Commonwealth or of a State or Territory.
Australia, when used in a geographical sense, includes the external Territories.
authorised to test GEMS products in a product class: see section 125.
category A product for a product class: see subsection 11(4) and section 29.
category B product for a product class: see subsection 11(4) and section 29.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Climate Change Convention means the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time.
The text of the Convention is set out in Australian Treaty Series 1994 No. 2 ([1994] ATS 2). In 2012, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Commonwealth place means a place referred to in paragraph 52(i) of the Constitution.
compliance obligation: each of the following is a compliance obligation:
an offence against this Act;
a civil penalty provision of this Act;
an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
constitutional trade or commerce means trade or commerce:
between Australia and a place outside Australia; or
among the States; or
between a State and a Territory; or
between 2 Territories; or
within a Territory.
contact person, for a registration, means a contact person currently entered in the GEMS Register in relation to the registration.
contravene an offence or civil penalty provision has a meaning affected by section 6.
The meaning of contravention is correspondingly affected (see section 18A of the Acts Interpretation Act 1901).
covered by: a product class is covered by a GEMS determination if:
the GEMS determination specifies that it covers the product class (see subsection 11(2)); and
the GEMS determination is in force (see sections 34 and 35).
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
family of models: see subsection 12(3).
foreign jurisdiction means a foreign country, or a part of a foreign country.
GEMS is short for Greenhouse and Energy Minimum Standards.
GEMS business premises means any premises that are open to the public on a regular basis and:
that are used for, or in connection with, the supply of one or more GEMS products; or
at which one or more GEMS products are used for a commercial purpose.
GEMS determination: see subsection 11(2) and section 23.
GEMS labelling requirements: see section 26.
GEMS level requirements: see section 25.
GEMS product: see subsection 11(1).
GEMS Register: see section 39.
GEMS Regulator: see section 70.
high efficiency level for a product class: see paragraph 27(1)(a).
import into Australia includes bring into Australia.
issuing officer means:
a magistrate; or
a Judge of the Federal Circuit and Family Court of Australia (Division 2); or
a Judge of the Federal Court of Australia.
just terms: see section 174.
limited grandfathering period for a product class: see section 31.
manufacture, in relation to a product, means the creation of a product essentially different from the matters or substances that go into that creation, but does not include the following activities (whether performed alone or in combination with each other):
restoration or renovation processes such as repairing, reconditioning, overhauling or refurbishing;
minimal operations of pressing, labelling, ticketing, packaging and preparation for sale, whether conducted alone or in combination with each other;
quality control inspections.
manufacturer of a product means the person who performs, or has had performed on the person’s behalf, the last process of manufacture of the product.
model: see subsection 12(2).
model identifier: see paragraph 12(2)(c).
offer to supply: see subsection 14(3).
operate: a product that uses energy operates at any time when the product is using energy.
Paris Agreement means the Paris Agreement done at Paris on 12 December 2015, as amended and in force for Australia from time to time.
The Paris Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)
participating jurisdiction: see section 33.
person who has GEMS information: see section 122.
premises includes the following:
a structure, building, vehicle, vessel or aircraft;
a place (whether or not enclosed or built on);
a part of a thing referred to in paragraph (a) or (b).
product classes: see paragraph 11(2)(a).
protected information: see subsection 169(3).
register a model in relation to a product class: see section 43.
registered against a GEMS determination: see section 13.
registrant, for a model’s registration in relation to a product class, means:
unless paragraph (b) applies—the person who applied for the model to be registered in relation to that product class; or
if the GEMS Regulator, under section 47, has varied the registration to specify another person as the registrant for the registration—the person for the time being specified as the registrant for the registration in accordance with that section.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
relevant court means:
the Federal Court of Australia; or
the Federal Circuit and Family Court of Australia (Division 2); or
a Supreme Court of a State or Territory.
replacement determination: see subsection 11(5) and section 35.
reviewable decision has the meaning given by section 164.
revoked determination: see subsection 11(5).
second‑hand: a product is second‑hand at the time of supplying or offering to supply the product if, and only if, there has been a supply of the product (other than a wholesale supply) in Australia before that time.
Secretary means the Secretary of the Department.
supply: see subsection 14(1).
suspension notice: see subsection 51(1).
this Act includes regulations and GEMS determinations made under this Act.
transitional GEMS labelling requirement means a GEMS labelling requirement that is expressed in the GEMS determination to be made for the purpose mentioned in paragraph 26(2)(c).
This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.
The expression this Act has an extended meaning (see the Dictionary in section 5).
For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.
This Act binds the Crown in each of its capacities.
However, this Act does not make the Crown liable to be prosecuted for an offence.
The protection in subsection (2) does not apply to an authority of the Crown.
Supplies of products
This Act applies to the following supplies of a product:
supply of the product, being a supply whose regulation is reasonably appropriate and adapted to give effect to Australia’s obligations under:
the Climate Change Convention; or
the Paris Agreement; or
another agreement between Australia and one or more other countries;
supply of the product by or to a constitutional corporation;
supply of the product in the course of constitutional trade or commerce;
supply of the product using a postal, telegraphic, telephonic, or other like service (within the meaning of paragraph 51(v) of the Constitution);
supply of the product by or to the Commonwealth or a Territory, or by or to an authority or instrumentality of the Commonwealth or a Territory;
supply of the product occurring in a Commonwealth place or a Territory.
The expression this Act has an extended meaning (see the Dictionary in section 5).
Offers to supply products
This Act applies to the following offers to supply a product:
an offer to supply the product, being an offer whose regulation is reasonably appropriate and adapted to give effect to Australia’s obligations under:
the Climate Change Convention; or
the Paris Agreement; or
another agreement between Australia and one or more other countries;
an offer to supply the product made by or to a constitutional corporation;
an offer to supply the product made in the course of constitutional trade or commerce;
an offer to supply the product made using a postal, telegraphic, telephonic, or other like service (within the meaning of paragraph 51(v) of the Constitution);
an offer to supply the product made by or to the Commonwealth or a Territory, or by or to an authority or instrumentality of the Commonwealth or a Territory;
an offer to supply the product occurring in a Commonwealth place or a Territory.
Uses of products
This Act applies to the following uses of a product:
use of the product for a commercial purpose, being a use whose regulation is reasonably appropriate and adapted to give effect to Australia’s obligations under:
the Climate Change Convention; or
the Paris Agreement; or
another agreement between Australia and one or more other countries;
use of the product for a commercial purpose by a constitutional corporation;
use of the product for a commercial purpose in the course of constitutional trade or commerce;
use of the product for a commercial purpose in providing a postal, telegraphic, telephonic, or other like service (within the meaning of paragraph 51(v) of the Constitution);
use of the product for a commercial purpose by the Commonwealth or a Territory, or by an authority or instrumentality of the Commonwealth or a Territory;
use of the product for a commercial purpose occurring in a Commonwealth place or a Territory.
This Act extends to every external Territory.
This Act is not intended to exclude or limit the operation of a law of a State or Territory (the State or Territory law) to the extent that:
the State or Territory law applies minimum requirements (however described) relating to greenhouse gas production or energy use in association with the supply and commercial use of a product that uses energy, or affects the energy used by another product; and
if the product is a GEMS product (in a product class covered by a GEMS determination)—those requirements are more stringent than the corresponding requirements applying to the product class under the GEMS determination; and
the State or Territory law is capable of operating concurrently with this Act.
Subject to subsection (1), this Act is not intended to exclude or limit the concurrent operation of a State or Territory law if such a law makes:
an act or omission that is an offence against a provision of this Act; or
a similar act or omission;
an offence against the State or Territory law.
Subsection (2) applies even if the State or Territory law does any one or more of the following:
provides for a penalty for the offence that differs from the penalty provided for in this Act;
provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Act;
provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Act.
This Part is about some of the key concepts used in this Act, and the inter‑relationships between those concepts.
This Act applies to GEMS products, which are products that use energy, or affect the amount of energy used by another product, and belong to a product class for which a GEMS determination has been made (under Part 4).
GEMS products may be determined to be category A products or category B products. Category B products have a higher impact on energy use or greenhouse gas production than category A products. Different penalty levels apply to contraventions of the main rules about supply and use of GEMS products in Part 3, depending on the category of the product.
GEMS products belong to a particular model if they have the same technical specifications, brand name (or manufacturer) and a unique identifier. Generally speaking, all models of GEMS products must be registered under Part 5 (in the GEMS Register) against GEMS determinations.
A model’s registration may be affected by a replacement determination updating the GEMS determination against which the model was initially registered. This might affect whether products of the model can be supplied, or used for commercial purposes.
There is a broad concept of supply and offer to supply. This affects the application of the main rules in Division 2 of Part 3 about supplying and offering to supply GEMS products.
A GEMS product is a product that:
uses energy or affects the amount of energy used by another product; and
is in a product class covered by a GEMS determination.
A GEMS determination is a determination made by the Minister under section 23 that:
specifies one or more classes of products (product classes) that it covers; and
specifies requirements for products in those product classes in accordance with Part 4.
For when a GEMS determination is in force, see sections 34 and 35.
For the purposes of paragraph (2)(a), a GEMS determination may specify a class of product 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.
A single product may be in more than one product class (whether or not specified in the same GEMS determination).
If a single product is in more than one product class, the product must comply with requirements under this Act for each of those product classes.
For example, a product that operates both as a washing machine and as a clothes dryer would need to comply with separate requirements for washing machines (where washing machines are a product class) and clothes dryers (where clothes dryers are a product class).
A GEMS product in a product class covered by a GEMS determination is either a category A product or a category B product for that product class, as specified in the determination (see section 29).
Different penalty levels apply for certain offences under this Act, depending on whether a product is a category A product or a category B product for a product class.
A replacement determination is a GEMS determination made in accordance with section 35 that specifies that it replaces another GEMS determination (a revoked determination).
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