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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
GREENHOUSE AND ENERGY MINIMUM STANDARDS BILL 2012
REVISED EXPLANATORY MEMORANDUM
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
(Circulated by authority of the Minister for Climate Change and Energy
Efficiency,
the Honourable Greg Combet AM MP)
Greenhouse and Energy Minimum Standards Bill 2012
General Outline
Purpose
The Greenhouse and Energy Minimum Standards Bill 2012 (the Bill) implements
the commitments of the Australian Government and the Council of Australian
Governments (COAG) to establish national legislation to regulate energy
efficiency and labelling standards for appliances and other products.
The Bill also gives effect to certain commitments under the United Nations
Framework Convention on Climate Change (UNFCCC) to adopt national policies
and measures to mitigate climate change and limit Australia's anthropogenic
emissions of greenhouse gases, and to promote the development and
application of technologies and practices that control anthropogenic
emissions of greenhouse gases.
The Bill establishes a national framework for regulating the energy
efficiency of products supplied or used within Australia. The national
legislation permits the Australian Government to set mandatory minimum
efficiency requirements for products, to drive greater energy efficiency
for regulated products. The Bill also allows the Australian Government to
set nationally-consistent labelling requirements, to increase Australians'
awareness of options to improve energy efficiency and reduce energy
consumption, energy costs and greenhouse gas emissions. The national
framework will replace seven state and territory legislative frameworks,
harmonising Australia's equipment energy efficiency regulations.
Background
Scientific evidence conclusively demonstrates that generating energy from
fossil fuel sources increases the concentration of carbon dioxide and other
greenhouse gases in the atmosphere. One result is the increase in average
global surface temperatures in recent decades, a warming trend that is
forecast to continue and bring changing weather patterns and the potential
for serious damage to Australia's environment, economy and way of life. The
Australian Government, together with more than 190 other countries, has
committed to action to address anthropogenic greenhouse gas emissions under
the UNFCCC. In particular, the Australian Government committed, in Article
4(1)(b), to implement and update national programs containing measures to
mitigate climate change by addressing anthropogenic emissions and, in
Article 4(1)(c), to promote the development of technologies that reduce
anthropogenic emissions of greenhouse gases not controlled by the Montreal
Protocol (which controls ozone depleting gases).
When the UNFCCC was signed in 1992, Australia was already pioneering
equipment energy efficiency regulation. Over the past two decades, the
Equipment Energy Efficiency (E3) Program has developed into a popular and
effective measure to help reduce the energy that Australians consume, and
the associated greenhouse gas emissions. The E3 Program has proven so
successful that in 2005, 83% of all Australian consumers surveyed reported
referring to the Program's Energy Rating Labels when purchasing major
household appliances. In 2010, the energy savings arising from the more
efficient air conditioners and refrigerators required by the E3 Program was
calculated at 6.6 terawatt hours, a benefit valued at over $1 billion.
Because Australia's electricity is generated predominantly from fossil
fuels, the reduced energy consumption driven by the E3 Program helps to
reduce Australia's greenhouse gas emissions.
Despite the successes of the E3 Program, the evolving expansion of the
Program under separate state and territory laws has resulted in
inconsistencies which increase the regulatory burden for businesses and
government agencies.
Australian governments recognise the value of the E3 Program for improving
energy efficiency and the potential to achieve greater efficiencies by
moving the Program to a more consistent, national legislative footing. For
these reasons, the Australian Government undertook to enhance the E3
Program as part of its Solar Schools-Solar Homes election commitment in
2007. In July 2009 this commitment was reinforced when COAG issued the
National Strategy on Energy Efficiency with a commitment to establish
national legislation for efficiency standards and labelling, and to expand
the scope of the E3 Program.
The Greenhouse and Energy Minimum Standards Bill 2012 will address the
inconsistencies that have arisen in the E3 Program while simultaneously
enabling expansion of the Program to drive even greater energy efficiency,
in line with Australia's commitments and environmental goals.
The Bill will deliver a national and expanded E3 Program that enables
Australian governments to regulate:
i. all electrical product types;
ii. products that use forms of energy other than electricity (e.g. gas or
diesel);
iii. products that affect energy consumption of other products, such as
insulation, window glass and air conditioner ducting;
iv. the greenhouse gas intensity of products;
v. minimum performance requirements for regulated products, such as the
temperature at which refrigerators must operate; and
vi. potentially negative environmental and health effects associated with
regulated products.
The expanded E3 Program will ensure Australian governments can continue to
encourage the development of energy efficient products that meet the needs
of Australian households and businesses.
Financial Implications
The Australian Government committed $37.1 million over four years in the
2012-2013 Budget to fund the Australian Government's share of the
cooperative E3 Program. This funding will be supported by contributions
from New Zealand and Australian state and territory jurisdictions that
participate in the E3 Program.
Regulation Impact Statement
The Regulation Impact Statement entitled National Legislation for Appliance
and Equipment Minimum Energy Performance Standards (MEPS) and Energy
Labelling was published in June 2010 and approved by the Australian
Government on 7 February 2011. Including the full 165-page statement would
detract from the clarity of the Explanatory Memorandum so the Executive
Summary has been included in the Explanatory Memorandum. A full copy of the
Regulation Impact Statement can be obtained from the Australian
Government's Energy Rating Website.
Executive Summary
Australian governments have long supported policies that encourage more
efficient use of energy for a range of reasons including energy security,
economic efficiency, ecologically sustainable development and greenhouse
gas reduction. The emphasis in the current policy setting is on greenhouse
gas reduction and assisting households to transition to a low carbon
future. Energy efficiency measures are a key element of the Government's
approach, in addition to an emissions trading scheme and the renewable
energy target. Energy labelling and Minimum Energy Performance Standards
(MEPS) under the Equipment Energy Efficiency (E3) program seek to address
problems relating to lack of information on the energy performance of
appliances and equipment and incentives that may result in poor energy
efficiency choices.
In Australia, the MEPS and labelling program is operated on a national
basis through cooperative action by state and territory Governments. This
approach recognises that the appliance and equipment market in Australia is
a single unified market, with firms manufacturing and distributing products
nationally.
Options for expansion of the program's scope
The rapid expansion of the program in response to policies to reduce
greenhouse gas emissions has highlighted problems with the program in its
current form. The problems relate to:
. the governance and administration of the program;
. the scope and effectiveness of the program and appropriate targeting
of products,
. energy forms, greenhouse impacts and efficiencies;
. the risk of unintended environmental problems, which the program has
no direct capacity to address;
. the monitoring of program impacts; and
. effective targeting of information so that it can be of use to product
buyers, given changes in marketing, product selection and purchase
channels.
Inconsistencies in process and application add considerable complexity and
cost to the administration of the program relative to a single national
approach. They also raise compliance costs for business and have the
potential to create added uncertainty and risk. Delays to implementation of
the energy efficiency measures under the program also reduce the benefits
expected to flow to consumers of energy using appliances and equipment.
The current approach is also relatively inflexible. The efficiency and
effectiveness of the program is limited by the fact that the current
regulatory framework does not provide for coverage of products using energy
forms other than electricity or non-energy-using products, even though such
products impact on energy efficiency and greenhouse gas emissions.
Appliance buyers are increasingly concerned with the relative greenhouse
emissions impacts of product choices, not just their energy efficiency, and
the program cannot at present indicate greenhouse emission differences or
set greenhouse intensity standards, should those be justified. Buyers are
also researching and purchasing products via new channels such as the
internet, and may not become aware of energy differences as they would if
they saw physical labels in showrooms.
The regulatory measures under the program, which are designed to improve
energy efficiency, can at times have unintended adverse impacts. Dangerous
or toxic materials may be used to improve the energy efficiency of a
product, such as mercury in energy efficient lighting. The capacity of the
current regulatory framework to address such issues directly is limited.
Where alternative regulatory powers would need to be used to address issues
that are beyond the scope of the current MEPS and labelling program, it may
be more cost-effective to adopt a more comprehensive and streamlined
approach such that all issues could be dealt with under a single regulatory
framework, consistent with other environmental regulation.
The regulatory framework
The regulatory framework most likely to ensure the effectiveness of the
program and the necessary expansion of its scope is one in which:
. the risk to stakeholders is minimised because changes take effect with
minimum lead time, take effect in all jurisdictions simultaneously,
and no jurisdiction can implement different labelling or MEPS
requirements;
. there is a unified administrative and data collection framework;
. the legislation enables and supports efficient and cost-effective
operation of the program (with regard to coverage of products
irrespective of their energy type, coverage of non-energy-using
products, use of label data in other media, and greenhouse labelling
and standards); and
. there is a unified compliance framework which makes use of
Commonwealth powers in relation to border controls (e.g. where a class
of products is declared a prohibited import, as is the case with
conventional incandescent lamps).
Three broad options are available for improving the regulatory framework:
1. maintain the current regulatory framework, but address inconsistencies
to the extent possible;
2. co-regulation, in which the states, territories and the Commonwealth
all pass identical legislation and regulations. Co-regulation could be
led by a territory (but legislated by the Commonwealth using the
Territories constitutional power, Option 2A), state-led (2B), or
Commonwealth-led (2C);
3. Commonwealth regulation, either through a referral of power (Option
3A) or use of the constitutional power of the Commonwealth, with the
responsible Minister bound by decisions of an appropriate ministerial
council (3B), or with the Minister not bound (3C).
In practice, expansion of the scope of the program could be achieved only
through the development of new regulations, indicating that Options 1 and 2
would not achieve the objectives of the proposal, and that a new regulatory
approach is needed. A simpler and more streamlined approach, based on
Commonwealth regulation, offers the chance of delivering the greatest net
benefit to the community.
A truly national approach would minimise the risks of unilateral action and
inconsistency across jurisdictions. A single national regulator to oversee
the program is more likely to result in a consistent approach to compliance
and monitoring. It also means suppliers need only deal with one regulator
rather than a number of regulators. Commonwealth involvement would also
streamline the use of border controls, where these provide the simplest and
most cost effective method for ensuring compliance and enforcement of the
energy efficiency measures.
A formal referral of powers by all the states (Option 3A) would be
difficult to achieve, and could be reversed, so reintroducing the
inconsistencies which Commonwealth regulation is intended to eliminate.
Either of Options 3B and 3C could provide the framework necessary to
increase the efficiency of the energy labelling and MEPS program.
Use of Constitutional Commonwealth regulation with the Minister not bound
by inter-jurisdictional committee (3C) offers the greatest consistency and
the most streamlined regulatory, governance and enforcement arrangements,
and the greatest certainty for business. Option 3B would have the advantage
of formalising jurisdictional participation in the decision making process.
It may also facilitate co-operative arrangements for delivery of services
such as registration, within a unified regulatory structure in which the
Commonwealth would be the sole regulator.
One possible disadvantage of Options 3A, 3B and 3C is that, as
administration and governance shift over time to the Commonwealth, the
experience, expertise and industry goodwill developed by state and
territory government will be lost to the program. To guard against this,
there would be advantages, whichever legislative model is selected, to
allowing for continuing co-operation between jurisdictions in the overall
governance of the labelling and MEPS program, in the development and
implementation of specific measures and in administration.
Trans-Tasman Issues
The New Zealand and Australian governments collaborate in the energy
labelling and MEPS program. In New Zealand the program is implemented
through the Energy Efficiency and Conservation Act 2001, which does not
have an exact Australian counterpart. Some of the proposals in this RIS
align the Australian program more closely with the New Zealand program
(e.g. reporting of national sales or supply of products), and some do not
(e.g. extending the scope of MEPS to non-energy using products).
Ensuring standards on both sides of the Tasman remain closely aligned
minimises business compliance costs and upholds the principles of the
Australia New Zealand Closer Economic Relations Trade Agreement (ANZCERTA),
and the Trans-Tasman Mutual Recognition Arrangement (TTMRA). To ensure the
energy labelling and MEPs programme continues to reduce trans-Tasman
business costs by ensuring regulatory alignment on both sides of the
Tasman, the ongoing development of the national legislation will be
developed with reference to the principles of the TTMRA and the ANZCERTA.
It is important to note that there would be no change in the current
practice, in which any specific proposals for product coverage under a new
Australian regulatory framework would be subject to regulatory impact
assessment on a case-by-case basis, in which impacts on the Trans-Tasman
market would need to be considered.
To ensure that current practices remain workable therefore it is important
that administrative and institutional trans-Tasman arrangements for the
MEPS and labelling programme are reviewed and adapted, as appropriate, to
complement any changes to either country's legislative framework. This work
will commence as soon as decisions on the shape and scope of the new
national legislation are settled and New Zealand's revised and updated
Energy Efficiency and Conservation Strategy is finalised.
Consultations
DEWHA published a Discussion Paper prior to the preparation of the
Consultation RIS, held a series of six public forums in capital cities and
received 25 written responses. These indicated that the regulatory and
administrative problems identified in the RIS are indeed significant issues
for stakeholders, particularly with regard to the need for national
consistency. There was also broad support for the extension of the scope of
the program to products using other energy forms and selected non-energy-
using products. Opinion differed about the value or cost of requiring the
disclosure of information in advertising, on whether local or international
test standards should be used, and the value of greenhouse-related
information.
The Consultation RIS was issued for public comment on 19 January 2010.
Public consultation forums were held in Canberra, Sydney, Melbourne,
Brisbane, Perth and Adelaide. A total of 67 people registered attendance
and written submissions were received from 31 industry associations,
companies, non-governmental organisations, consumer advocacy groups and
individuals. Of these 31 submissions, 29 supported a transition to a new
regulatory framework, and 25 agreed that the new framework should be based
on Commonwealth regulation.
Recommendations
On the basis of the analysis in this RIS, it is recommended that:
1. There be a transition to a new national regulatory framework for the
national energy labelling and MEPS program.
2. To ensure national consistency and efficiency of implementation, now
and in the future, the preferred framework should be based on
Commonwealth regulation (i.e. options 3A, 3B or 3C). The option that
provides the greatest net benefit is Option 3B, however other options
are likely to deliver a similar net benefit.
3. The new regulatory framework should retain the provisions to cover any
product using electricity.
4. The new regulatory framework contain enabling provisions to implement
each of the following measures:
A. coverage of products using energy forms other than electricity;
B. coverage of non-energy-using products which impact on energy use or
efficiency;
C. labelling (or otherwise indicating) the greenhouse gas impacts of
covered products;
D. setting greenhouse gas-intensity standards for covered products;
and
E. minimising the (non-energy) environmental impacts of regulated
products.
5. The inclusion of a specific measure under the provisions in 4 (above)
should be subject to regulation impact assessment on a case by case
basis.
6. The new regulatory framework should include requirements for suppliers
of registered products to report annually on the national imports,
sales or supplies and exports by the registration holder of each model
of each product registered to them (Measure F):
a. the powers should be in a form that can be activated through
regulation, on a product by product basis;
b. the requirement should be activated immediately for all categories
of registered products;
c. the geographic scope of the reporting should be the whole of
Australia only (recognising that smaller area breakdowns are
difficult to obtain and unreliable);
d. the reporting should cover annual periods; and
e. there should be safeguards on confidentiality (e.g. with regard to
Freedom of Information requests and in public reports and studies
on efficiency trends) so that the sales of any individual firm
cannot be disclosed or identified.
7. The new regulatory framework should not expand the circumstances under
which the display of energy label images or key energy performance
data is required (for example, in visual advertising where a specific
model of a product is advertised, offered for sale or promoted in
print, internet, television, or other relevant media - Measure G)
until further research and analysis, in the form of a regulation
impact statement, into the costs and benefits of the measure for
specific product types and specific media is undertaken and approved.
This recommendation reflects that, while this measure has in-principle
benefits, limited information was submitted during the consultation
period to allow for a conclusion to be drawn either for or against its
immediate implementation. Should the measure be implemented, it is
recommended that:
a. The regulatory and enforcement powers should to be based on those
available to the ACCC for the regulation of advertising, rather
than on the WELS Act; and
b. The regulations should be structured so that appliance categories
or types of advertising can be exempted if not supported by cost-
benefit analysis.
8. The new regulatory framework should define 'sale' and 'supply' in a
way that:
a. is consistent in all jurisdictions;
b. covers all imports of products (other than previously owned
household products for own use);
c. covers all modes of transfer of ownership of new products to end
users in Australia (whether retail sale, wholesale, hire, lease or
other);
d. covers situations where the product is delivered to end users as
part of a service without actual change of ownership; and
e. impacts on the initial purchase and period of use, but not on used,
resold or refurbished product (unless offered as new).
9. Reflecting that the market for equipment and appliances in Australia
is a national market, the new legislative framework should implement
standards at a national level (with climatic variations and
infrastructure issues considered as part of regulation impact
analysis), with the aim that:
a. agreed measures take effect in all jurisdictions at the same time;
b. no jurisdiction implements energy labelling or MEPS requirements
that are different from those in other jurisdictions; and
c. 'grandfathering' provisions are harmonised across jurisdictions,
and across programs (i.e. WELS, energy labelling and MEPS) in cases
where a product type is subject to more than one mandatory program.
10. The new regulatory framework should provide for regulation of product
imports as a means of enforcing compliance. Any import arrangements
should be consistent and complementary to the Australia-New Zealand
Closer Economic Agreement (ANZCERTA) and the Trans-Tasman Mutual
Recognition Arrangement (TTMRA).
11. The new regulatory framework should ensure consistency across all
jurisdictions with regard to:
a. offences (whether civil, criminal or both); and
b. penalties (preferably as penalty points rather than fixed monetary
amounts).
12. The new regulatory framework should allow for all enforcement options
to be available to the program's regulatory authority, irrespective of
the jurisdiction in which non-compliance is detected.
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 Bill 2012
This 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.
Overview of the GEMS Bill
The Greenhouse and Energy Minimum Standards (GEMS) Bill 2012 will establish
national legislation to govern Australia's Equipment Energy Efficiency (E3)
Program. The GEMS Bill will create a national framework to regulate energy
efficiency and labelling standards, addressing inconsistencies that have
arisen in the state- and territory-based legislation currently governing
the E3 Program. The GEMS Bill will also allow the expansion of energy
efficiency regulation in the future to cover a wider range of products.
The national legislative framework established by the GEMS Bill will
implement Australia's commitments under Articles 4.1 and 4.2 of the United
Nations Framework Convention on Climate Change to adopt national policies
and measures to mitigate climate change and limit Australia's anthropogenic
emissions of greenhouse gases, and to promote the development and
application of technologies and practices that control anthropogenic
emissions of greenhouse gases.
To support the national energy efficiency and product labelling regime, the
GEMS Bill establishes various obligations for businesses that deal with
regulated products, and creates a national Regulator that will oversee the
E3 Program. To ensure the Regulator is able to administer the E3 Program
effectively, the Bill grants various administrative powers, investigative
powers and enforcement options to support the objectives of the E3 Program.
Some of the provisions relating to monitoring and enforcement options
engage with human rights.
Specifically, the GEMS Bill engages the right to the presumption of
innocence; the right not to be compelled to confess guilt; and the right
not to have one's privacy, family, home or correspondence arbitrarily or
unlawfully interfered with.
Right to the presumption of innocence-reverse onus provisions and strict
liability offences
Article 14(2) of the International Covenant on Civil and Political Rights
(ICCPR) protects the right of every individual charged with a criminal
offence to be presumed innocent until proved guilty according to law. The
right to the presumption of innocence is also a fundamental principle of
the common law. The United Nations Human Rights Committee has stated that
the presumption of innocence "imposes on the prosecution the burden of
proving the charge and guarantees that no guilt can be presumed until the
charge has been proved beyond reasonable doubt".[1]
Reverse onus provisions
An offence-specific defence reverses the usual burden of proof by requiring
the defendant to discharge the burden of proof for one or more matters
specified as an element of the offence.
The question of whether a law that imposes a burden of proof on the
defendant (often referred to as a "reverse-onus" provision) impermissibly
limits the right to the presumption of innocence will depend on all the
circumstances of the case, and in particular the justification for the
reverse onus. For example, a provision may not impermissibly limit the
right to the presumption of innocence if it relates to a matter that is
peculiarly within the knowledge of the defendant. Provisions that merely
place an evidential burden on the defendant (that is, the burden of showing
that there is sufficient evidence to raise an issue) are more likely to be
consistent with the rights protected by Article 14(2) of the ICCPR because
the prosecution must still disprove those matters beyond reasonable doubt
if the defendant discharges the evidential burden.
A number of clauses in the GEMS Bill engage the right to the presumption of
innocence because they create offence-specific defences. Clauses 16 and 17,
combined with section 13.3 of the Criminal Code, provide that a defendant
who asserts that a product was second-hand bears an evidential burden in
relation to this matter. This means that the defendant bears the burden of
adducing or pointing to evidence that suggests a reasonable possibility
that the product was in fact second hand. If the defendant discharges the
evidential burden, the prosecution will be required to disprove those
matters beyond reasonable doubt. This is relevant because the offences in
clauses 16 and 17 do not apply if a product is second-hand. Requiring the
defendant to prove that a product was second-hand (i.e. previously retailed
in Australia) is considered appropriate because this matter is uniquely
within the accused person's knowledge.
Clauses 18 and 19, combined with section 13.3 of the Criminal Code, provide
that a defendant who asserts that a product was supplied to the defendant
in Australia will bear an evidential burden in relation to that matter.
This is relevant because the offences in clauses 18 and 19 only apply to
products imported into Australia for commercial use-they do not apply if
the product was supplied in Australia. Requiring the defendant to prove
these matters is also considered appropriate and necessary because the fact
that a product previously was retailed, or supplied to the accused in
Australia, is a matter uniquely within the accused person's knowledge.
Chapter four of the Commonwealth Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers was considered in the development of
these clauses and is considered consistent with the proposed reverse onus
of proof. For all these reasons the offence-specified defences included in
the Bill are compatible with Article 14(2) of the ICCPR.
Strict liability offences
Part 3 of the GEMS Bill establishes obligations for people who supply
regulated products or use regulated products for a commercial purpose
(clauses 16-19). Regulated products must not be supplied, or used for a
commercial purpose, unless they are registered with the E3 Regulator, and
the products meet all applicable energy efficiency requirements. Regulated
products that are supplied in Australia also must be labelled in accordance
with any relevant labelling standards.
The obligations in clauses 16-19 are supported by a range of enforcement
mechanisms, including the creation of strict liability criminal offences. A
strict liability offence can be considered to engage Article 14(2) of the
ICCPR because it removes the requirement for the prosecution to prove
fault. This creates a risk that a person may be found guilty of an offence
in circumstances where the person committed no intentional fault.
The inclusion of the strict liability offences referred to above are
considered necessary and appropriate to ensure there is an effective
deterrence to contraventions of the obligations under Part 3 of the GEMS
Bill. The creation of strict liability offences is also reasonable because
individuals supplying and using GEMS products will be placed on notice that
they are required to take steps to guard against contravening the key
obligations imposed by the Act.
The imposition of strict liability still allows a defendant to raise a
defence of honest and reasonable mistake. This ensures that no person who
supplies a GEMS product or uses a GEMS product for a commercial purpose can
be held liable if he or she had an honest and reasonable belief that they
were complying with relevant obligations. For example, a person may not be
liable if there were reasonable grounds to believe that a product model,
and therefore all units of that model, complied with all requirements.
The application of strict liability is a proportionate limitation of the
right to the presumption of innocence because of the high public interest
in improving energy efficiency and reducing Australia's greenhouse gas
emissions. A strong deterrence, in the form of an effective enforcement
regime, is required because it often will be unfeasible to recall all non-
compliant products that have been supplied into the Australian market, or
installed for commercial use. If products cannot be recalled, inefficient
products that contravene GEMS requirements are likely to have long-lasting
adverse effects on energy consumption and energy costs for consumers, and
on Australia's greenhouse gas emissions. The effectiveness of the GEMS
enforcement regime would be greatly undermined if it were necessary for the
prosecution to prove - in addition to proving that a person supplied,
offered, or commercially used a GEMS product without complying with their
obligations - that a person intended not to comply with those obligations.
The application of strict liability and the offences to which it relates
have been developed with regard to the Senate Standing Committee for the
Scrutiny of Acts Sixth Report of 2002 on Application of Absolute and Strict
Liability Offences in Commonwealth Legislation and to the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Right not to be subject to arbitrary or unlawful interference with one's
privacy, family, home or correspondence
Article 17 of the ICCPR provides for the right of every individual to be
protected against arbitrary or unlawful interference with the individual's
privacy, family or correspondence. The term "privacy" has not been defined
by international human rights law but it is generally accepted that it is
very broad. An interference with an individual's privacy will not be
considered "unlawful" if it is authorised by a law that complies with the
provisions, aims and objective of the ICCPR and specifies in detail the
precise circumstances in which such interferences may be permitted. An
interference with an individual's privacy will not be considered
"arbitrary" if it is reasonable in the particular circumstances and the law
is in accordance with the provisions, aims and objectives of the ICCPR.[2]
Clause 170 of the GEMS Bill engages the right to privacy because it enables
the GEMS Regulator to publicise, in any way he or she thinks appropriate,
various matters. These matters could include that an individual has been
convicted of an offence against the Act and that a civil penalty order has
been made against an individual for contravening a civil penalty provision.
However, this provision does not unlawfully interfere with a person's right
to privacy because the clause specifies in detail the matters that the GEMS
Regulator may publicise. Moreover, it is anticipated that giving the GEMS
Regulator the power to publicise various matters about an individual will
help to deter people from failing to comply with their obligations under
the GEMS Bill. Given the importance of the objectives the Bill seeks to
achieve the clause is reasonable in the circumstances, and does not
arbitrarily interfere with an individual's right to privacy.
Clause 84 also engages the rights protected by Article 17 of the ICCPR
because it would enable a GEMS inspector to enter any premises and exercise
the monitoring powers conferred by the GEMS Bill. These powers could be
exercised for the purposes of determining whether a provision of the Bill
has or is being complied with or to determine whether information given in
compliance or purported compliance with a provision of the Bill is correct.
The term "premises" is broadly defined by clause 5 of the GEMS Bill, and
includes any structure, building or place. A GEMS inspector could therefore
enter an individual's home for the purposes set out in clause 84(1) (for
example, if a GEMS inspector suspects that an individual is keeping their
business records at home). However, the clause does not arbitrarily
interfere with the rights protected by Article 17 because a GEMS inspector
is not authorised to enter the premises unless the occupier of the premises
has consented to the entry (and the GEMS inspector has shown his or her
identity card if required by the occupier) or the entry is made under a
monitoring warrant. Clause 99 of the GEMS Bill provides that a warrant may
only be issued if the issuing officer is satisfied, by information on oath
or affirmation, that it is reasonably necessary that one or more GEMS
inspectors should have access to the premises for the purposes of
determining whether a provision of the Act has been, or is being complied
with, or information given in compliance or purported compliance with a
provision of the Act is correct. Moreover, the warrant must state whether
entry is authorised to be made at any time of the day or during specified
hours of the day and specify the day (not more than 6 months after the
issue of the warrant) on which the warrant ceases to be in force. As a
result, clause 84 does not limit the rights protected by Article 17 of the
ICCPR because any interferences with these rights are clearly authorised by
law and are not arbitrary because they are necessary to ensure that the Act
can be effectively enforced and appropriate safeguards have been put in
place that will minimise the risk of the powers being misused.
Conclusion
The GEMS Bill is compatible with human rights because, while it may limit
certain human rights, those limitations are reasonable, necessary and
proportionate, justified by the legitimate needs and objectives of the E3
Program and accompanied by appropriate safeguards.
The Hon Greg Combet AM MP
Minister for Climate Change and Energy Efficiency
Minister for Industry and Innovation
Notes on Clauses
Part 1-Preliminary
Division 1-Preliminary
Clause 1 Short title
1. Clause 1 establishes the short title of the Bill, the Greenhouse and
Energy Minimum Standards Act 2012.
Clause 2 Commencement
2. Clause 2 sets the commencement dates for various sections of the Act.
Clauses 1 and 2 will commence on the day the Act receives Royal Assent.
Clause 17 will commence on 1 October 2013. All other clauses will
commence on 1 October 2012.
3. The later commencement date for clause 17 is to allow people with
existing registrations under the state-based Equipment Energy
Efficiency (E3) Program one calendar year to transfer their
registration to the national program, and provide any additional
information required by the Greenhouse and Energy Minimum Standards
(GEMS) legislation. Commencing clause 17 on 1 October 2013 ensures that
people who are currently registered are not required to halt supplies
until they have an opportunity to transfer an existing registration.
Division 2-Guide to this Act
Clause 3 Guide to this Act
4. Clause 3 provides an overview of the Act, broadly outlining the objects
of the Act and the means by which they are achieved, as well as
introducing the issues covered in each Part of the Act.
Division 3-Objects of this Act
Clause 4 Objects of this Act
5. Clause 4 outlines the objectives of the Act, which are to implement a
number of Australia's obligations under the United Nations Framework
Convention on Climate Change (UNFCCC), and to assist in promoting the
development and adoption of technologies and products that will help to
reduce Australia's energy consumption and associated greenhouse gas
emissions.
Division 4-The Dictionary and other interpretive provisions
Clause 5 The Dictionary
6. Clause 5 contains a dictionary to assist interpretation and
implementation of the Act by defining the meaning of specific terms
used in the Act.
Clause 6 Contravening offence and civil penalty provisions
7. Clause 6 clarifies that for various sections of the Act, such as
section 16, 17, 18, and 19, a person is liable for civil or criminal
penalties if the person contravenes the obligation set out in the
section.
8. Clause 6 is required because of the style of drafting in various
sections, which state an obligation such as 'a person must not supply,
or offer to supply, a GEMS product' in certain circumstances. To remove
any doubt, clause 6 clarifies that breaching these obligations
constitutes a criminal offence, or gives rise to civil liability.
Division 5-Application of this Act
Clause 7 Act binds Crown
9. Clause 7 ensures that this Act binds the Crown in its various
capacities. Clause 7 does not make the Crown liable to prosecution for
criminal offences established under the Act, although authorities of
the Crown, including specific Government bodies and agencies, are
liable for criminal prosecution. The Crown and its authorities also are
liable to pay pecuniary penalties imposed under civil penalty
provisions or infringement notices issued under the Act.
Clause 8 Extension to external Territories
10. Clause 8 extends the operation of the Act to all of Australia's
external territories, ensuring that people and products in the
territories are required to comply with the E3 Program.
Clause 9 Concurrent operation of state and territory laws
11. Clause 9 clarifies that the Act does not exclude the concurrent
operation of state and territory laws, to the extent those laws are
consistent with the Act and able to operate concurrently with it.
12. This Act implements a 2009 commitment by the Council of Australian
Governments to introduce national legislation to regulate appliance and
product energy efficiency, in particular to ensure a nationally
consistent compliance and enforcement scheme (measure 2.2.2 of the
National Strategy on Energy Efficiency).
13. To ensure the national law established by this Act does provide a
nationally consistent energy efficiency program and compliance scheme,
state and territory laws relating to greenhouse gas production or
energy use should be referred to in circumstances where those laws
regulate matters not covered under this Act (i.e. non-GEMS products),
or where those laws establish more stringent requirements than those
established under this Act.
14. For example, if a determination made under this Act established a
requirement that models of a certain product class cannot be supplied
in Australia unless they operate at a 'four star' efficiency level or
higher, a state or territory law would be inconsistent if it stated
that products could legally be supplied if they met a minimum
efficiency standard of 'three stars' or higher. A state or territory
law that stated products could not be supplied unless they met a
minimum efficiency standard of 'five stars' or higher would not be
inconsistent, as five star products would comply simultaneously with
state and Commonwealth laws. It is appropriate to allow state and
territory laws to set more stringent standards because this ensures
jurisdictions have the ability to regulate energy efficiency to meet
local variables without undermining the objectives of the national
program.
15. Subclause 9(2) and 9(3) ensure that a state or territory law that is
considered capable of operating concurrently under subclause 9(1) is
not otherwise inconsistent with this Act simply because it creates
offences for different conduct, or because the elements or penalties of
offences differ from this Act. However, other issues may result in
Constitutional inconsistency with this Act, for example, a law that
required products to carry a different label than that required under
this Act could be considered inconsistent.
16. Since clause 17 does not commence until 1 October 2013, to ensure
existing registrants have time to update their registrations to comply
with the Act, a state or territory law that provides penalties for
supplying a product that is unregistered may not be considered
'concurrent' until clause 17 commences. This would permit penalties
under state and territory laws in response to supplies of unregistered
products.
17. These examples are not intended to provide an exhaustive list of issues
that could affect whether a state or territory energy law is capable of
operating concurrently with this Act.
Part 2-Key Concepts
Division 1-Guide to this Part
Clause 10 Guide to this Part
18. Clause 10 provides a guide to Part 2 of the Act, which introduces key
concepts including what products may be subject to regulation under the
Act, the means by which these products will be categorised and
regulated, and what kinds of supply will attract obligations under the
Act.
Division 2-Key concepts
Clause 11 GEMS products, GEMS determinations and product classes
19. Clause 11 outlines some key concepts regarding the products regulated
under the Act and the mechanisms by which these products are regulated.
20. Subclause 11(1) defines GEMS products, which are products that use
energy, or affect the amount of energy used by a product, that are also
in a product class covered by a GEMS determination.
21. Products that use energy may include products powered by gas or
electricity or some other energy source, such as diesel. Products that
affect the amount of energy used by another product model do not use
energy themselves but will affect the energy consumption of other
products, directly or indirectly. Examples might include insulation,
window glass or ducting as these products will affect the amount of
energy used by heating and cooling systems.
22. Subclause 11(2) defines GEMS determinations, which are determinations
made by the Minister under clause 23 of this Act that establish
requirements for specified product classes. Product classes
differentiate between products according to their functions and design,
grouping products with other similar products to ensure that
regulations can be appropriately tailored. For example, refrigerators
may be regulated according to different product classes such as upright
refrigerators, top-freezer refrigerators, bottom-freezer refrigerators,
bar refrigerators, side-by-side refrigerator/freezer et cetera. Product
classes also may be set according to functions and attributes that span
different product types, for example, a single class for all products
that have a stand-by power mode.
23. Subclause 11(3) clarifies that a single product model may fall within
more than one product class, whether or not these product classes are
covered by a single GEMS determination. For example, a combination
clothes washing machine and clothes dryer may fall within 'clothes
washing machine' and 'clothes dryer' product classes rather than a
single 'washer/dryer' class. This ensures that manufacturers have the
flexibility to create combination products without requiring individual
determinations for combination products. A product model that falls
within multiple product classes must comply with requirements for all
those product classes (if any).
24. Subclause 11(4) introduces the concept of category A and category B
GEMS products, (see clause 29). The category of a product class is
relevant to penalties under the Act. In accordance with clause 29, the
majority of GEMS products will be category A, with category B reserved
for those products the Minister is satisfied will have high impact on
energy use or greenhouse gas emissions, such that non-compliance with
GEMS requirements would have a more serious negative impact on energy
use and greenhouse gas emissions.
25. Subclause 11(5) introduces the concept of replacement determination,
which is a GEMS determination that replaces an existing GEMS
determination. Replacement determinations have some additional
implications for registered products when compared to determinations
that have no predecessor (see for example clauses 36 and 48).
Clause 12 Models of GEMS products to be registered in relation to product
classes
26. Clause 12 establishes an obligation for models of GEMS products to be
registered. This clause also defines the parameters for classifying
products as a single model or a family of models.
27. Subclause 12(1) requires all models of GEMS products to be registered
under the Act in relation to each product class that is covered by a
determination, unless the determination exempts product models from the
obligation to register in accordance with clause 30. In general, all
product models in a class covered by a determination will need to be
registered but in some specific cases, such as potential GEMS
requirements for standby power, requirements may apply to such a broad
range of product classes that it would be undesirable to require
registration of all product models covered by the determination.
28. Subclause 12(2) sets out the parameters for classifying two or more
products in a product class as belonging to a single product model. A
clear understanding of product model is required because, as indicated
in paragraph 20, clause 12 requires product models to be registered
rather than individual units.
29. To be considered units of a single model, products must have the same
technical specifications, where those specifications are relevant to
the product model complying with GEMS requirements. Examples of
identical technical specifications may include factors like identical
physical dimensions, identical modes of operation, the same power
consumption per unit of output (e.g. X watts per degree of cooling per
cubic metre) or the same level of greenhouse gas emissions per unit of
power consumed. For the purposes of this Act, technical specifications
do not include, for example, different cosmetic features that do not
affect the product model's compliance with relevant GEMS requirements.
30. To be considered members of a single model, products also must have the
same brand or trademark - or the same manufacturer if there is no brand
or trademark - and an identifier (e.g. a number or code) that
identifies products as being of the same model (known as a model
identifier). The Act does not require a model identifier to be marked
on the product itself, it may be an administrative item manufacturers
or suppliers use to identify the model as separate to other models.
31. All the elements of the definition of model must be satisfied for
products to be classified as units of the same model, meaning that a
group of products becomes a different model for the purposes of the E3
Program if any of the elements changes. For example, if a business
registers a product model under a particular brand name and/or model
number, and a downstream supplier changes the brand name or model
number, this constitutes a new product model and the downstream
supplier must register the model to permit supply in Australia. The
requirement to register products after a change in brand name or model
number will replicate the process in the existing E3 Program. It is
appropriate to do so because all registered products are recorded on
the publicly available database according to their brand name (if any)
and model number. If products are not registered after a change in
brand name or model number, inspectors and prospective purchasers
cannot identify product models on the database and determine whether
they are registered. People who purchase GEMS products for retail sale
have a particular interest in this information being clear and easily
identifiable as, under part 3 of the Act, they can incur penalties for
supplying products that are not registered.
32. Subclause 12(3) introduces the concept of a family of models, which is
an administrative concept allowing different models to be registered
under a single registration. In general, only different product models
with identical technical specifications will qualify as a family of
models. However, in accordance with clause 28, each determination will
specify the exact circumstances in which two or more models of a
particular class of products fall within the same family (if any). This
ensures that determinations have the flexibility to specify different
parameters for family of models, should cases arise where this is
appropriate.
33. Subclause 12(4) provides that a single model cannot be covered by more
than one registration per product class. Combined with the elements of
the definition of product model, clause 12(4) ensures that a single
registration permits supply or use of a product model by any person
provided the details under which the product is registered are not
changed. If details such as brand name and model number are changed, a
product constitutes a new model that must be registered separately.
34. The parameters for product models, coupled with the concept of family
of models, are intended to ensure that individual product models can be
clearly identified and registered separately under the Act, without
limiting a manufacturer or supplier's discretion to classify products
with purely cosmetic differences as a single model or multiple models.
Example:
35. A manufacturer produces three refrigerators with performance that is
identical in all ways (identical technical specifications). One is
available with a door that opens on the left-hand side and two are
available with a door that opens on the right-hand side-one in white
finish and the other in silver. Because all refrigerators have
identical technical specifications and are manufactured by the same
person, if the manufacturer gives all three refrigerators the same
model identifier they could be registered as a single model for the
purposes of the Act. Alternatively, the manufacturer may elect to give
each refrigerator a different model identifier to assist clients to
differentiate between the different colours and doors. In this case the
refrigerators could be registered as three different models of the same
family, meaning the person registering the different models will
require only one registration application and pay one registration fee.
Clause 13 Models to be registered against GEMS determinations
36. Following from the obligation to register product models under clause
11, clause 13 provides guidance about the determination against which a
product model must be registered.
37. Subclause 13(1) clarifies terminology used in the Act, stating that
products registered under clause 13 are registered against a relevant
GEMS determination.
38. Subclause 13(2) provides guidance as to which GEMS determination a
model is registered against in various situations, and highlights the
clauses that determine these matters.
39. Subclause 13(3) clarifies that a product model's registration may or
may not be affected by a replacement determination. Each replacement
determination will specify whether it affects some or all of the
registrations against the revoked determination. If a model's
registration is not affected by a determination, the Act will deem the
model to be registered against the new determination without any action
by the registrant (see clause 36).
Clause 14 Supplying and offering to supply GEMS products
40. Clause 14 defines the terms supply and offer to supply, which are
central to certain obligations under the Act.
41. Subclauses 14(1) and 14(2) clarify that supply of a GEMS product is a
broad term including all forms of supply, regardless of whether the
supply is for consideration or a wholesale or retail supply. Without
limiting the term, the Act is drafted with the understanding that
supply is the act of physically providing an item to a person, not
agreeing or contracting to provide an item to a person.
42. Subclause 14(3) clarifies that offer to supply is a broad term,
intended to include making a product available for supply or any method
of promoting a product for supply.
43. Whether an act constitutes an offer to supply is a question of evidence
and may be established by matters beyond the immediate act itself. For
example, exposing or advertising a product model with a disclaimer that
the product model is not for sale may not be sufficient to preclude a
court deciding the exposure or advertisement is an offer to supply if
the product model is later supplied.
Part 3-Requirements for suppliers and commercial users of GEMS products
Application of strict liability to offences under Part 3
44. Clauses 16 and 18 establish obligations regarding the supply or
commercial use of GEMS products that do not meet GEMS requirements.
Clauses 17 and 19 establish obligations regarding the supply or
commercial use of GEMS products that are not registered as required by
clause 12. Each of these obligations is supported by offences of strict
liability. The application of strict liability is considered necessary
and appropriate to ensure an effective deterrence to contraventions of
the obligations under clauses 16-19. The effectiveness of the
enforcement regime would be greatly undermined if it were necessary to
prove that, in addition to proving that a person did supply or
commercially use a GEMS product without complying with legal
obligations, a person intended not to comply with those legal
obligations when supplying or using a product for a commercial purpose.
45. Strict liability recognises that people supplying and using GEMS
products have an obligation to consider whether the product meets
requirements and to deal only with those products that do meet legal
requirements. The imposition of strict liability will not criminalise
honest errors and no person who supplies a GEMS product or uses a GEMS
product for a commercial purpose can be held liable if he or she had an
honest and reasonable belief that they were complying with relevant
obligations. For example, a person may not be liable if there were
reasonable grounds to believe that a product model, and therefore all
units within that model, complied with all requirements.
46. The application of strict liability recognises the high public interest
in improving Australia's energy efficiency and reducing Australia's
greenhouse gas emissions and the responsibility of suppliers and
commercial users of GEMS products to ascertain, prior to supply or use,
whether the products they deal with are subject to GEMS requirements
and meet the applicable GEMS requirements. A strong deterrence is
required to encourage suppliers and commercial users to comply with
their responsibilities because it often will be unfeasible to recall
non-compliant products that have been supplied into the Australian
market or installed for commercial use. This means that contravention
of GEMS requirements is likely to have a long-lasting adverse effect on
Australia's energy consumption, Australia's greenhouse gas emissions
and the energy costs of Australian consumers.
47. The application of strict liability and the offences to which it
relates have been developed with regard to the Senate Standing
Committee for the Scrutiny of Bills Sixth Report of 2002 on Application
of Absolute and Strict Liability Offences in Commonwealth Legislation
and to the Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.
Division 1-Guide to this Part
Clause 15 Guide to this Part
48. Clause 15 provides a guide to Part 3 of the Act, which establishes the
Act's principle obligations for suppliers and commercial users of GEMS
products and outlines the Constitutional limitations of the Act in its
capacity to regulate suppliers and commercial users of GEMS products.
Division 2-Supplying GEMS products
Clause 16 Supplying GEMS products-complying with GEMS determinations
49. Clause 16 prohibits the supply, or offer to supply, a GEMS product in
certain circumstances and provides civil and criminal penalties for
persons who contravene this prohibition.
50. Subclause 16(1) prohibits a person supplying, or offering to supply, a
GEMS product that is subject to an existing GEMS determination unless
the product and the act of supply, or the offer to supply, comply with
all relevant GEMS requirements.
51. Paragraphs 16(2)(a) and 16(2)(b) provide that the prohibition under
subclause 16(1) does not apply if the product is a second-hand product
(defined in the dictionary under clause 5) or if the product model is
exempt from GEMS requirements under clause 37 (and all exemption
conditions are complied with).
52. Subparagraph 16(2)(c)(i) provides that the obligation under subclause
16(1) also does not apply if products were imported into Australia
before the GEMS determination comes into force, or if the last stage of
the product's manufacturing process was completed in Australia
(subsequently referred to as 'manufactured in Australia') before the
GEMS determination comes into force. However, in accordance with
subparagraphs 16(2)(c)(ii)-16(2)(c)(v), to be supplied (or offered)
legally any product imported into or manufactured in Australia before a
GEMS determination comes into force must also be supplied (or offered)
before the end of the limited grandfathering period imposed (if any -
see clause 31), must be supplied (or offered) in a way that complies
with all transitional GEMS labelling requirements (if any - see clause
26(3)(c)), and the product must comply with any relevant requirements
existing before the GEMS determination comes into force. These include
any applicable standards and requirements under state and territory
laws that regulate product energy efficiency.
53. Paragraph 16(2)(c) ensures that, in most cases, businesses that
imported or manufactured products at a time when it was lawful to
supply those products can continue to supply those products. This
reduces the risk that businesses which obtained products that were
legal for supply or use at the time will be stuck with stock if
requirements change. However, unrestrained permission to supply non-
compliant products could provide an incentive to stockpile products
that will not comply with prospective determinations, undermining the
objectives of the E3 Program. The optional limited grandfathering
period will allow the Minister to strike the correct balance between
business impact and the objectives of the GEMS legislation, and ban
supplies or uses of products where there is an anticipated stockpiling
risk. While not all products are likely to exhibit the same stockpiling
risk, if experience with the E3 Program discloses that products are
regularly stockpiled prior to new determinations coming into force then
the Minister could be expected to exercise the power more frequently.
54. Subclauses 16(3) and 16(4) provide criminal offences of strict
liability for contraventions of the obligation under subclause 16(1).
As described in paragraphs 40-43 of this explanatory memorandum, strict
liability is considered appropriate and necessary to ensure an
effective deterrence to contraventions of obligations under subclause
16(1).
55. Subclause 16(3) provides that contraventions relating to a Category A
product model carry a criminal penalty of 60 penalty units. Subclause
16(4) provides that contravention relating to a Category B product
model carries a criminal penalty of 120 penalty units. The grounds for
differentiating products between Category A and Category B are set out
in clause 30. In most cases, products will be classified as Category A
products, unless the Minister determines a product model has a high
impact on energy use or greenhouse gas emissions and should therefore
be classified as Category B. A higher penalty is justified for such
products because contraventions of the Act relating to such products
have more serious implications for Australia's energy use and
Australian greenhouse gas emissions, so that offences involving these
products should be more heavily discouraged and punished than
contraventions related to products with lesser impact on energy use and
greenhouse gas emissions.
56. Subclauses 16(5) and 16(6) provide that contraventions of subclause
16(1) can be the subject of civil penalty proceedings. Subclause 16(5)
provides a penalty of 60 penalty units for contraventions relating to
category A products while subclause 16(6) provides a penalty of 120
penalty units for contraventions relating to category B products.
Providing criminal and civil remedies allows flexibility to respond to
contraventions of the Act, with remedies proportionate to the
seriousness of the conduct.
57. Subclause 16(7) clarifies who has responsibility for proving certain
matters in civil and criminal action. When prosecuting an offence
against subclause 16(3) or 16(4), the prosecution bears the evidential
burden of proving the matters in paragraph 16(2)(b) and 16(2)(c). This
recognises the fact that, while the matters in subclauses 16(3) and
16(4) are phrased in the form of a defence (i.e. circumstances in which
subclause 16(1) does not apply) for the sake of clarity in drafting,
they are matters that the prosecution should establish.
58. A defendant bears the evidential burden of proving matters under
paragraph 16(2)(a), that a product has been previously retailed in
Australia (i.e. is second-hand - see clause 5). This is appropriate
because proving no previous supply would be a difficult matter for
prosecution while establishing some previous supply should be a
comparatively easy matter for a defendant. Subclause 16(8) provides, in
terms similar, that in civil penalty proceedings a person who wishes to
rely on paragraph 16(2)(a) bears the evidential burden of proving a
product is second-hand and the person applying for the order bears the
burden of proving the matters in paragraphs 16(2)(b) and 16(2)(c).
Clause 17 Supplying GEMS products-model not registered
59. Subclause 17(1) prohibits supplies, or offers to supply, of GEMS
products of models that are not registered as required by clause 12.
60. Subclause 17(2) clarifies that subclause 17(1) does not apply if a
product is second-hand or if the model is exempt from registration (see
clause 30).
61. It is worth noting that products that can be supplied in accordance
with paragraph 16(2)(c) may not be registrable under clauses 11 and 12,
for example, because the product no longer meets GEMS requirements.
Legislative permission for this situation, which would require complex
drafting, need not be expressly included in subclause 17(2) because
asserting liability where a product can be supplied in accordance with
paragraph 16(2)(c), but cannot be registered, would create a conflict
between clauses 16 and 17. If doubt arises whether liability arises for
the supply of a product that can be supplied under paragraph 16(2)(c)
but cannot be registered, the question should be resolved to allow
supply under paragraph 16(2)(c) without liability under clause 17.
62. Subclauses 17(3)-17(6) establish strict liability criminal offences and
civil liability provisions for contraventions of the obligations under
subclause 17(1), in terms similar to the penalty provisions under
subclauses 16(3)-16(6). Civil and criminal contraventions with regard
to category A products carry penalties of 60 penalty units, while
contraventions with regard to category B products carry penalties of
120 penalty units to reflect the more serious results of these
contraventions (see clause 29). In accordance with subclauses 17(7) and
17(8), a person who asserts that subclause 17(1) does not apply because
a product is second-hand bears the evidential burden for proving those
matters (see clause 17(2)( a)). The prosecution, or person applying for
a civil penalty order, bears the evidential burden of establishing that
a product model is not exempt from registration (see clause 17(2)( b)).
Division 3-Using GEMS products for commercial purposes
Clause 18 Using GEMS products for commercial purposes-complying with GEMS
determinations
63. In terms similar to clause 16, clause 18 prohibits the use of a GEMS
product for commercial purposes in certain circumstances and provides
civil and criminal penalties to support this prohibition.
64. Using a product for a commercial purpose refers to circumstances in
which there is no supply event in Australia because a person imports a
product into Australia, or manufactures a product in Australia, for
some commercial use. For example, a supermarket chain may import
lighting or refrigerators for use in shops, or a person may import
products to fit-out worker accommodation or investment accommodation.
65. It is appropriate and necessary to cover these circumstances to ensure
the E3 Program covers situations where there is no supply event in
Australia. Not covering these circumstances would result in a gap in
coverage that would allow businesses to circumvent the objectives of
the Act by purchasing less efficient products overseas, or
manufacturing less efficient products domestically.
66. Subclause 18(1) prohibits a person using a GEMS product for a
commercial purpose if, at the time the product is first used for a
commercial purpose, the product does not comply with all relevant GEMS
requirements.
67. The provisions relating to commercial use focus on the time of first
use to ensure that GEMS requirements (if any) are complied with at that
time but to ensure that subsequent changes in GEMS requirements do not
give rise to liability for products in use or mandate replacement of
potentially capital-intensive GEMS products.
68. Subclause 18(2) provides that subclause 18(1) does not apply in certain
circumstances. Subclause 18(1) does not apply if the GEMS product was
supplied in Australia (as clause 16 addresses this situation) or if the
use is an exempt use (see clause 21). Similarly to subclause 16(2),
paragraph 18(2)(d) provides that the obligation under subclause 18(1)
does not apply if products were imported into Australia for commercial
use before the GEMS determination comes into force, or were
manufactured in Australia before the GEMS determination comes into
force. However, in accordance with subparagraphs 18(2)(c)(ii)-
16(2)(c)(iv), to be legally used for a commercial purpose a product
imported into or manufactured in Australia before a GEMS determination
comes into force must also be used for the first time before the end of
the limited grandfathering period imposed (if any - see clause 31) and
must comply with any relevant requirements existing before the GEMS
determination comes into force. These include any applicable
requirements under state and territory law.
69. Subclauses 18(3)-18(6) establish strict liability criminal offences and
civil penalty provisions for contraventions of subclause 18(1). Civil
and criminal contraventions with regard to category A products carry
penalties of 60 penalty units, while contraventions with regard to
category B product carry penalties of 120 penalty units to reflect the
more serious results of these contraventions. In accordance with
subclauses 18(7) and 18(8), a person who asserts that subclause 18(1)
does not apply because a product is second-hand bears the evidential
burden for proving those matters (see clause 18(2)( b)). The
prosecution, or person applying for a civil penalty order, bears the
evidential burden of establishing that a product model is not exempt
from registration (see clause 18(2)( c)).
Clause 19 Using GEMS products for commercial purposes-model not registered
70. In terms similar to clause 17, clause 19 prohibits the commercial use
of GEMS products of models that are not registered as required by
clause 11.
71. Subclause 19(1) prohibits the commercial use of a GEMS product if, at
the time of first use, the product is covered by a GEMS determination
and the product is not registered against the relevant GEMS
determination.
72. Subclause 19(2) provides that subclause 19(1) does not apply if the
product was supplied in Australia (as clause 17 addresses this
situation); if the product is used for an exempt use; or if the product
model is exempt from registration in relation to a particular product
class under clause 30.
73. In terms similar to subclauses 17(3)-17(6), subclauses 19(3)-19(6)
establish strict liability criminal offences and civil penalty
provisions for contraventions of subclause 19(1). Civil and criminal
contraventions with regard to category A products carry penalties of 60
penalty units, while contraventions with regard to category B product
carry penalties of 120 penalty units to reflect the more serious
results of these contraventions. In accordance with subclauses 19(7)
and 19(8), a person who asserts that subclause 19(1) does not apply
because a product is second-hand bears the evidential burden for
proving those matters (see clause 19(2)( b)). The prosecution, or
person applying for a civil penalty order, bears the evidential burden
of establishing that a product model is not exempt from registration
(see clause 19(2)( c)).
Clause 20 Exempt uses of GEMS products
74. Clause 20 defines certain uses of GEMS products as falling outside the
prohibitions against commercial use in clauses 18 and 19. Each of these
uses is known as an exempt use.
75. As clauses 18 and 19 are focussed on the use of GEMS products for
commercial purposes, personal use of GEMS products by individuals is an
exempt use. Using a product in order to test that product before it is
supplied to a consumer is also an exempt use, to ensure that businesses
have the ability to test products in Australia before making a decision
whether to supply a product model or use a product model for commercial
purposes. Other exempt uses may be specified in Regulations.
Division 4-General provisions relating to supply and use of GEMS products
Clause 21 Constitutional limitation
76. Clause 21 clarifies the effect of the Act as it relates to supply
(subclause 21(1)), offer to supply (subclause 21(2)) and use for a
commercial purpose (subclause 21(3)). Should any doubt arise about the
scope of these terms, or associated provisions of the Act, each term
should be understood as if each reference to these terms were expressly
limited to specific heads of Commonwealth Constitutional power. This
ensures that if doubt arises about the scope of a provision, the
provision can be read down as limited to the appropriate Commonwealth
heads of power and not be struck out for uncertainty.
77. The overarching Constitutional head of power for provisions relating to
these terms is the external affairs power under paragraph 51(xxix) of
the Australian Constitution, as the Act implements commitments under
the United Nations Framework Convention on Climate Change and other
international agreements. In situations of ambiguity, the terms also
should be understood as referring to supply, offer to supply or
commercial use by constitutional corporations (paragraph 51(xx)); by
persons engaged in Constitutional trade and commerce involving GEMS
products (paragraph 51(i)); by business activities involving postal,
telegraphic and other carriage services (paragraph 51(v)); by the
Commonwealth or its Territories, authorities and instrumentalities; and
supply, offer or commercial use occurring in a Commonwealth place or a
territory (section 122, and section 61 supported by paragraph
51(xxxix)).
Part 4-GEMS determinations
Division 1-Guide to this Part
Clause 22 Guide to this Part
78. Clause 22 provides a guide to Part 4 of the Act, which deals with
making and replacing GEMS determinations, the instruments by which
labelling, efficiency, or other product requirements will be set.
Division 2-Making GEMS determinations
Clause 23 Minister may make GEMS determinations
79. Clause 23 grants the Minister power to issue legislative instruments,
known as GEMS determinations, to regulate one or more classes of
products that use energy or affect the amount of energy used by another
product. The type or source of energy is not limited and determinations
may cover, for example, products that consume electricity or products
powered directly by gas, diesel or other energy sources.
80. Examples of products that affect the amount of energy used by another
product model include products such as insulation, window glass, or
ducting, which affect the amount of energy used by air conditioners or
heaters.
81. Product classes will be determined according to the features of the
products (see also paragraph 10(2)(a) of the Act). The parameters of
product classes are not defined in the Act due to the variety of
products that may be regulated but will be clearly established in each
determination. For example, refrigerators vary greatly in design and
function, which may recommend differentiating between different product
classes of upright refrigerators, top-freezer refrigerators, bottom-
freezer refrigerators, bar refrigerators, side-by-side refrigerator
freezers and other product classes. This approach, currently used in
the existing E3 Program, ensures that determinations can set
requirements that are appropriate and adapted to each product class.
Clause 24 GEMS requirements-general
82. Clause 24 specifies in general terms the matters that a GEMS
determination issued by the Minister must or may include.
83. A GEMS determination must include GEMS level requirements, GEMS
labelling requirements, or both, detailed in clauses 25 and 26. These
requirements directly advance the principle objectives of the Act,
using mandatory minimum efficiency requirements and labelling
information to promote products that will assist to reduce Australia's
energy consumption and related greenhouse gas emissions. A
determination that does not include either GEMS level requirements or
GEMS labelling requirements is not valid.
84. A determination containing GEMS level requirements or GEMS labelling
requirements also may include other requirements detailed in clause 27.
These requirements assist to ensure that products promoted under the E3
Program do not sacrifice adequate performance, or impose human health
or environmental costs. For example, compact fluorescent lamps, like
other fluorescent lamps, contain mercury vapour. A GEMS determination
may include a requirement that compact fluorescent lamps contain no
more than a maximum quantity of mercury vapour.
Clause 25 GEMS requirements-GEMS level requirements
85. Clause 25 details the matters that can be the subject of GEMS level
requirements established by GEMS determinations issued by the Minister.
86. GEMS level requirements may establish mandatory minimum standards
relating to the amount of energy used by a product, or to the amount of
greenhouse gas emissions a product produces while it operates, or to a
product's effect on the energy use of another product. For example,
GEMS level requirements might set a maximum amount of energy
refrigerators can use to cool a given volume, might specify the maximum
amount of greenhouse gas a diesel generator can produce per unit of
energy output, or might specify a minimum thermal resistance of
insulated ducting systems and other insulation products.
87. Greenhouse gases resulting from the operation of a product may include
any greenhouse gases produced directly by the product's operation (e.g.
by burning gas or diesel) and gases associated with the product's
operation, such as greenhouse gas emissions arising from the product's
consumption of electricity or another external power source. These
direct and indirect greenhouse gas emissions are often termed 'Scope 1'
and 'Scope 2' emissions, respectively. For the purposes of this
legislation, greenhouse gases resulting from the operation of a product
do not include 'Scope 3' emissions, which are indirect emissions
arising from processes other than the product's operation - such as
emissions arising from manufacturing or disposing of products.
88. It is appropriate to allow GEMS level requirements to regulate scope 1
and scope 2 emissions as these are the sources of greenhouse gas
emissions arising from power consumption, which is the emissions factor
most directly under manufacturers' control. While scope 3 emissions may
be beyond a manufacturers direct influence, the amount of power a
product consumes and the amount of greenhouse gas a product directly
emits are factors that manufacturers can influence.
89. GEMS level requirements also may set requirements to test products, in
any manner specified in the determination, to check whether the product
model meets the GEMS level (requirements relating to energy use or
greenhouse gas emissions).
Clause 26 GEMS requirements-GEMS labelling requirements
90. Clause 26 details the matters that can be subject to GEMS labelling
requirements established by determinations issued by the Minister.
91. GEMS labelling requirements are intended to ensure that products are
labelled with accurate information to inform purchasers about the
efficiency of products, to inform purchasing choices and encourage the
market to move toward greater efficiency. These requirements may relate
to the information that must be communicated when supplying or offering
to supply products (26(1)(a)), requirements to conduct tests to ensure
the information is accurate and can be compared across products
(26(1)(c)), and requirements relating to the way information must be
communicated, for example, to ensure information is clearly legible in
each label (26(1)(b)).
92. A determination may establish GEMS labelling requirements only for the
purposes of comparing products within a product class, to assist
monitoring compliance with the Act (e.g. ensuring inspectors can easily
identify a product's efficiency level), or for transitioning to a new
GEMS determination. Requirements to allow for a transition to a new
GEMS determination may include issues such as replacing older labels
(e.g. a product considered '5 star' under an old determination is only
'3 star' under a new determination) or applying labels in-store because
they were not required to be labelled when they were manufactured.
Clause 27 GEMS requirements-other requirements
93. Clause 27 lists other requirements that may be specified under GEMS
determinations. The matters under clause 27 cannot stand alone in a
determination but may only be included in a determination that
specifies GEMS level requirements and/or GEMS labelling requirements.
94. Paragraph 27(1)(a) permits GEMS determinations to establish
requirements for meeting the high efficiency level for a product class.
A high efficiency level is a concept that will help to distinguish the
most efficient product models in each product class, assisting
businesses to promote highly efficient products. Products need not meet
the high efficiency level but those which do will be entitled to use
the more distinctive high efficiency label and claim - for as long as
they meet the high efficiency level (which may change over time to
encourage greater efficiency). High efficiency level requirements must
relate to GEMS level matters, that is, the amount of energy used or
greenhouse gases produced by a product, or the effect on the energy
used by another product.
95. Paragraph 27(1)(b) permits GEMS determinations to establish performance
requirements for products. For example, requirements for a washing
machine to remove a certain amount of soil from clothes, or
requirements for a refrigerator to cool food to a certain temperature.
These performance requirements are intended to prevent products
entering the Australian market that are designed to meet GEMS levels
but are unfit for the product's intended purpose.
96. Paragraph 27(1)(c) permits GEMS determinations to establish
requirements related to a product's impact on human health or the
environment, for example, requirements relating to the permissible
amount of mercury gas in fluorescent lamps. This will assist to prevent
products entering the Australian market that are designed to meet
efficiency standards but pose a health or environmental threat. Where
impacts on human health or the environment are addressed in other
legislation, GEMS determinations should only complement other
legislation and not duplicate or contradict existing regulations.
97. Paragraph 27(1)(d) permits additional other requirements to be
specified in regulations.
98. Paragraph 27(1)(e) permits GEMS determinations to establish testing
requirements to verify a product model's performance against other
requirements established under paragraphs 27(1)(a)-27(1)(d).
Clause 28 GEMS determinations-families of models
99. Clause 28 requires each determination to specify, for each product
class it covers, the parameters for determining that two or more
product models belong to the same 'family' of models. The concept of a
family of models allows separate models to be covered by a single
registration (see subclause 12(3)).
100. The parameters for a family of models is not limited by the Act but,
in most cases, could be expected to group product models with identical
performance but cosmetic differences (e.g. identical technical
specifications but different model identifiers). The concept is
primarily intended to allow registrants the flexibility to
differentiate product models with identical performance without
incurring an obligation to register each model separately, but the
flexibility is available to group products according to other
parameters.
Clause 29 GEMS determinations-category A and category B products
101. Clause 29 requires each determination to classify products in each
product class it covers as either category A or category B products.
102. The Minister may classify a product as category B if satisfied that
products in that class have high energy consumption or result in high
levels of greenhouse gas emissions, either through scope 1 or scope 2
emissions. Contravening the Act with regards to category B products
carries higher penalties than contravening the Act with regards to
category A products.
103. Since each individual category B product has the potential to create
more greenhouse gas pollution and incur greater energy consumption
costs than category A products, there is a correspondingly greater need
to discourage people supplying or using category B products that do not
meet requirements. Ensuring higher penalties for category B products
will assist to discourage and sanction breaches of the Act.
Clause 30 GEMS determinations-models exempt from registration
104. Clause 30 allows a determination to exempt models of a specified
product class from the obligation to register. This primarily is
intended to address determinations that specify requirements for such a
broad range of product classes that it would be undesirable to require
registration of all models affected by the requirements. An example
might be a determination setting requirements for standby power, which
may not apply to individual product classes but may apply to all
product classes with a standby power mode.
Clause 31 GEMS determinations-limited grandfathering period
105. Clause 31 allows the Minister to specify a limited grandfathering
period in a determination. This would have the effect of limiting the
time in which product models may be supplied or used even if they do
not meet the requirements of a determination. After the expiration of
the period, it is not permitted to supply, offer to supply or use for a
commercial purpose the product models subject to the grandfathering
period.
106. In most cases, products that are imported into or manufactured in
Australia before a determination comes into force can be supplied,
offered or used for a commercial purpose indefinitely, provided the
product model met any requirements existing when it was imported into
or manufactured in Australia (see paragraphs 16(2)(c) and 18(2)(d)).
However, in some cases permitting indefinite supply of products
imported into or manufactured in Australia before a determination comes
into force may create an incentive to stockpile goods and undermine the
objectives of the E3 Program. Where a risk of stockpiling is considered
to require management, the Minister has the capacity to impose a
limited grandfathering period, after which existing stock could not be
legally supplied or used. This option will assist the Minister to
strike the correct balance between pursuing the objectives of the E3
Program by discouraging stockpiling while ensuring businesses seeking
to comply with the objectives in good faith are not left with stock
that cannot be supplied because the stock was not cleared before new
requirements commenced.
Clause 32 GEMS determinations-not to give preference
107. Clause 32 applies principles similar to those of section 99 of the
Australian Constitution to GEMS determinations, prohibiting the
Minister making a determination that grants preference to a state, or a
part of a state, over any other state, or part of a state. This does
not prohibit GEMS determinations giving appropriate recognition to
objective differences between different areas of Australia, such as
climate variables that affect the operation of products.
Clause 33 GEMS determinations-consent of participating jurisdictions
108. Clause 33 recognises the cooperative nature of the national E3 Program
and anticipates the participation of other Australian jurisdictions to
develop GEMS determinations.
109. Subclause 33(1) requires the Minister to obtain the consent of
participating jurisdictions to the terms of each GEMS determination
before issuing a determination. Consent must be obtained in accordance
with any written procedures that participating jurisdictions develop
for obtaining consent, if any exist at the time of making a
determination, or from a two-thirds majority of participating
jurisdictions if no such written procedure exists. A determination is
not valid if prior consent to the terms is not obtained from
participating jurisdictions in accordance with subclause 32(1).
110. The Commonwealth is a participating jurisdiction for the purposes of
obtaining consent, as is any Australian jurisdiction the Commonwealth
has agreed is a participating jurisdiction, where the agreement remains
in force at the time the determination is made.
Clause 34 GEMS determinations-when a GEMS determination comes into
force
111. Clause 34 establishes a default period of 12 months between a GEMS
determination being made and a GEMS determination coming into force. It
is appropriate to provide a lead time before the majority of new
determinations come into effect to ensure that Australians are able to
react to any new requirements.
112. A determination can specify a longer or shorter period before
commencement in cases where the Minister considers it appropriate. A
shorter period may be appropriate, for example, where a determination
does not affect registrations or includes obligations relating only to
labelling that must be displayed at the point of supply.
113. The day on which a determination comes into force is important to
understanding various obligations under the Act. For example, in some
circumstances products that are imported into or manufactured in
Australia before the day on which a GEMS determination commences may be
supplied after commencement, even if they do not satisfy the new
requirements (see clause 16(2)(c)). Products imported or manufactured
after the day on which a determination comes into force cannot be
supplied lawfully if they do not satisfy relevant requirements, unless
they are exempt from meeting requirements.
Division 3-Replacing GEMS determinations
Clause 35 Replacing GEMS determinations
114. Clause 35 sets out the Minister's powers to replace and revoke GEMS
determinations. It specifies that, despite section 33(3) of the Acts
Interpretation Act 1901, the Minister cannot vary a GEMS determination
but may revoke a GEMS determination and issue a replacement GEMS
determination.
115. This ensures that GEMS requirements cannot be altered by amending a
determination but must be made anew so that all procedures required of,
and flowing from, new determinations apply to a replacement
determination. For example, a replacement determination may not be
issued without the consent of participating jurisdictions, in
accordance with clause 31, and will come into force on the day
determined in accordance with clause 32.
116. To ensure the cooperative nature of the E3 Program anticipated in
clause 33 is maintained in revoking and making determinations,
subclause 35(3) requires the Minister to obtain the consent of
participating jurisdictions to revoke a determination that will not be
replaced.
117. Clause 35(4) clarifies that a replacement determination revokes the
determination it replaces, effective immediately before the new
determination commences (i.e. no separate instrument of revocation is
required).
Clause 36 Whether registrations affected by replacement determination
118. Clause 36(1) requires a determination that replaces a previous
determination to specify whether it affects the registration of any or
all of the product models to which the determination applies. If a
product model's registration is affected by a determination, that
registration ceases (see clause 48) and must be re-registered to permit
supply or use of the product model. This is to ensure that all product
models are registered against the current determination, and that
products which do not satisfy new requirements are deregistered.
119. If a product model's registration is not affected by a determination,
clause 36(2) ensures the model is taken to be registered against the
new determination, without any further action by the registrant. This
avoids administrative processes for businesses whose registrations are
unaffected by a determination.
120. A Determination could be expected to affect registrations when some
material change to requirements has occurred, for example, the
determination introduces new GEMS levels, which make it necessary for
registrants to consider whether their product meets the requirements of
the new determination.
121. Clause 36(3) states that the requirement to seek the consent of
participating jurisdictions under clause 33 does not apply when a
replacement determination does not affect the registration of any
product models. This ensures a replacement determination that alters
issues of less importance and does not affect any product models can be
issued via an expedited process, without obliging Ministers of
participating jurisdictions to vote formally on the terms of the
determination.
Division 4-Exempting models from requirements of GEMS determinations
Clause 37 Exempting models from requirements of GEMS determinations
122. Clause 37 sets out the processes by which the GEMS Regulator may
exempt product models from obligations to meet GEMS requirements.
123. Subclause 37(1) grants the GEMS Regulator the power to issue
legislative instruments to exempt specified models from one or more
GEMS requirements. The exemption may apply to all supplies, offers to
supply, or commercial uses of that model, or only some specified
supplies or commercial uses. For example, the legislative instrument
may exempt a certain model of motor from requirements for all supplies
and uses, so any person can supply or use the product without meeting
requirements. Alternatively, the exemption may permit a specific
commercial purpose, or specific supply, because of special
circumstances that recommend an exemption.
124. Subclause 37(2) permits the Minister to specify conditions that all
persons affected by the exemption must comply with. Without limiting
the issues to which conditions may relate, subclause 37(2) gives
examples of the matters to which conditions may relate, including the
way an exempt product model must be labelled, or conditions regarding
the actual supply or commercial use of the exempt product model.
Exemptions may be time limited if the Regulator considers it
appropriate, or may be granted in perpetuity.
125. Subclause 37(3) requires all persons to comply with conditions
specified in an exemption, to the extent those conditions apply to the
person. Non-compliance with exemption conditions is grounds for
suspending or cancelling a registration under clauses 49 and 54.
126. Subclause 37(4) lists a range of issues the Regulations may address to
guide registration exemptions, including requirements for applications
for exemptions or requirements to consider certain matters when
considering an application for exemption. Subclause 37(4) is indicative
only and is not intended to provide an exhaustive list of all matters
the Regulations may address.
127. Subclause 37(5) applies principles similar to those of section 99 of
the Australian Constitution to exemptions, prohibiting the Regulator
making an exemption that grants preference to a state, or a part of a
state, over any other state, or part of a state. This does not prohibit
exemptions giving appropriate recognition to objective differences
between different areas of Australia, for example, different climate
variables that mean the reasons for prohibiting a certain product type
or model are not applicable in a particular region.
Part 5-Registering models of GEMS products
Division 1-Guide to this Part
Clause 38 Guide to this part
128. Clause 38 provides a guide to Part 5 of the Act, which governs the
registration of GEMS product models. The matters covered by Part 5 of
the Act include the registration application process and obligations
for registering entities, as well as the administration and public
recording of registrations, and the processes by which registrations
can cease.
Division 2-GEMS Register
Clause 39 Establishment of GEMS Register
129. Clause 39 requires the GEMS Regulator to establish and maintain a
register, in any form the Regulator considers appropriate, to record
registrations and other information relevant to the E3 Program. The
register, or any part of it, may be published on the internet for
public access, subject to limitations on the use of personal or
commercially sensitive information that may exist from time to time.
Regulations may be issued specifying information that must be published
online.
Clause 40 Information to be entered in GEMS Register
130. Clause 40 lists the information that must be included in the GEMS
register for each registered product model or family of models,
including details that allow each registrant and registered model to be
identified, and the determinations against which each model is
registered. Subclause 40(1) also allows regulations to specify
additional information that must be included in the register. Not all
information that must be included in the register would necessarily be
published on the internet under subclause 39(3). For example,
information that is protected under privacy laws or other obligations
to confidentiality would not be subject to online publication.
131. To ensure the flexibility to include other relevant information in the
Register, subclause 40(2) permits the GEMS Regulator to include in the
Register any information that he or she considers appropriate, in
addition to information that must be included under subclause 40(1).
Subclause 40(3) acts to ensure the register remains up to date and
obliges the GEMS Regulator to update information on the Register as
soon as practicable.
Division 3-Registering models of GEMS products
Clause 41 Registration on application
132. Clause 41 clarifies that a single application for registration may
cover one product model, or multiple models that are in the same family
of models.
Clause 42 Application requirements-contact persons and contact details
133. Clause 42 provides that an application to register a product model
must include details for a contact person, to respond to questions
related to the application or to other communications regarding the E3
Program. Requisite contact details will be detailed in regulations, to
ensure the flexibility to alter the required details if experience with
the E3 Program raises a need to do so.
Clause 43 Registration by the GEMS Regulator
134. Clause 43 outlines the GEMS Regulator's obligations regarding
applications to register GEMS product models, and also specifies
requirements for valid applicants.
135. Clause 43(1) obliges the GEMS Regulator to register product models
against relevant GEMS determinations upon application, unless a ground
for refusing an application specified in subclauses 43(2)-43(4)
applies. This obligation recognises that all applications are entitled
to be registered in the absence of reasons for refusal specified in
law.
136. Subclause 43(2) requires the Regulator to refuse an application if the
Regulator is not satisfied that a product model complies with GEMS
requirements, or is not satisfied that all models in the application
are in the same family of models.
137. Subclause 43(3) limits the people that can apply to register a product
model under the Act to manufacturers of the product model, importers of
the product model or people who have an appropriate connection to
supplies of the model in Australia (i.e. a domestic retailer). This is
to ensure that product models are registered by the people most
familiar with the products, and the degree to which they meet GEMS
requirements. A registration also may be refused under subclause 43(3)
if the Regulator is satisfied of any of the grounds for refusing
applications under clause 63.
Clause 44 Relevant GEMS determination with which model must comply
138. Clause 44 determines which GEMS determination a product model must be
registered against under clause 43.
139. Subclause 44(1) provides that, in most cases, the determination with
which a product class must comply is the determination in force at the
time the Regulator makes a decision on an application for registration.
A different determination may cover the product class if subclauses
44(2) or 44(3) apply.
140. Under subclause 44(2), if an application for registration is made
after a determination is made but before the determination commences,
the product model must be registered against that determination unless
an applicant chooses otherwise.
141. Where a replacement determination has been made but has not yet come
into force, subclause 44(3) permits an applicant to choose for a
product model to be registered against the old determination. A product
model registered under an old determination will only remain registered
until the replacement determination comes into force, unless the
replacement determination does not affect the registration (see clause
36). Subclause 44(4) clarifies that a person may use an application
under clause 41 to elect the determination under which the application
should be determined.
Clause 45 Conditions
142. Clause 45 permits the GEMS Regulator to impose written conditions on a
product model's registration. Subclause 45(1A) limits registration
conditions to those conditions that are reasonably appropriate and
adapted to giving effect to the purposes of the Act. For example, if a
business sought to register a product, such as a heat pump, that is
energy efficient in a warm climate and therefore complies with
standards in that climate, but is inefficient in a cold climate, the
GEMS Regulator may impose a condition that the product be installed in
a particular location and not used throughout Australia.
143. A product model's registration may be suspended or cancelled under
clauses 49 or 54 if the registrant does not comply with a condition of
registration.
Division 4-Varying registrations
Clause 46 Varying registration to cover additional models
144. Clause 46 sets out the processes for varying an existing registration
to add additional product models in the same family. The Regulator must
vary a registration to cover new models as requested in the absence of
grounds to refuse the application specified under subclauses 46(3) or
46(4).
Clause 47 Varying registration to change registrant
145. Clause 47 sets out the process by which a registration may be
transferred to a new registrant.
146. An existing registrant may, with the consent of a new registrant,
apply to the GEMS Regulator to pass the registration to the new
registrant provided that person meets the requirements for registrants
under clause 42. Applications made without the consent of the new
registrant, or applications where the new registrant does not meet the
requirements, are not valid.
147. Subclause 47(4) requires the GEMS Regulator to vary a registration as
requested in a valid application, unless there are grounds for refusing
the application under subclauses 47(5) or 47(6).
Division 5-When is a registration in force
Clause 48 When is a registration in force
148. Clause 48 governs when a registration is in force, setting out
provisions that determine when a registration commences or ceases, as
well as the length of a registration period.
149. Subclause 48(1) clarifies that a registration comes into force the day
after the GEMS Regulator grants registration under subclause 43(1).
This ensures that a registration period commences as soon as possible
after the decision is made to register a model or models. The effect of
subclause 48(1) means a registration may commence before a registrant
receives notice of the decision (see clause 67).
150. Subclause 48(2) sets out when a registration ceases to be in force. In
most cases, a registration will cease to be in force on the day after
the registration period ends (see subclause 48(3)) or the day after the
registration is cancelled (see clause 54), whichever day is earlier.
151. However, if a replacement determination is issued that affects the
registration (see clauses 35 and 36) before the day described above,
the registration ceases on the day the replacement determination comes
into force or the day the model is registered against the replacement
determination (i.e. a person may anticipate the replacement
determination coming into force and apply for a new registration before
the determination commences, in accordance with subclause 44(2)).
152. Subclauses 48(3)-48(6) govern the length of registration periods. In
most cases, registrations will be granted a five-year registration
period beginning on the day after the GEMS Regulator approves an
application to register a product model. Under subclause 48(4), the
GEMS Regulator may grant a registration period shorter than five years
in accordance with any regulations made to govern shorter registration
periods. Circumstances in which a shorter registration period might be
appropriate include where a registration exists before the E3 Program
commences and must be transferred to the new national scheme for the
remainder of its original term.
153. Since subclause 44(2) provides that a product model may be registered
against a determination yet to commence, subclause 48(5) extends the
usual five-year registration period by the number of days between the
day the registration is granted and the day the new determination comes
into effect. This provision ensures that people applying for
registration before a determination commences receive a full five-year
registration period under the new determination.
154. A registration period also will be extended beyond five years under
subclause 48(6) if the registration is suspended under clause 49 but is
reinstated at a later date. This ensures that a registration that is
suspended but is later reinstated has a full five-year term that is not
reduced by the period in which it was suspended.
Division 6-Suspending and cancelling registrations
Subdivision A-Suspending registrations
Clause 49 Suspending a model's registration
155. Product models may only be registered under the E3 Program if the
product and the registrant comply with statutory obligations and the
requirements of relevant determinations. Clause 49 therefore permits
the Regulator to suspend a model's registration in circumstances where
requirements or obligations are not complied with. The power to suspend
a registration provides a disincentive to breaching requirements and
registrants' obligations and, combined with the power to cancel
registrations, offers a medium-level, administrative enforcement option
without financial sanctions. Decisions to suspend a registration are
reviewable under Part 9 of the Act and notice of a decision to suspend
a registration must be given to the registrant in accordance with
clause 165.
156. The circumstances in which the Regulator may suspend a registration
are specified in clause 49. The Regulator may suspend a registration
where the Regulator has reasonable grounds to suspect that:
i) the model does not comply with determination requirements
ii) the information provided in connection with the application was not
correct at the time
iii) that changes have been made to the model after it was registered
such that test results provided at registration are no longer
accurate
iv) or that the registrant has breached a condition of the registration
or conditions of an exemption under clause 37.
157. Registration conditions apply only to the registrant and a
registration cannot be suspended if a condition of an exemption is
breached by a person other than the registrant.
158. The Regulator also may suspend a registration if he or she is
satisfied that a registrant has failed to notify the GEMS Regulator of
certain changes as required under clause 55 or has failed to comply
with a notice issued under clauses 56, 57, or 61. This provides a
disincentive to registrants who might otherwise elect not to comply
with various obligations to provide information or items required by
notices issued by the Regulator.
159. One final ground for suspending a registration is that the GEMS
Regulator has been unable to contact the registrant or the registration
contact person(s), despite reasonable efforts. This ensures that
registrants are not able to avoid potential consequences under the Act
by avoiding contact with the Regulator, a situation reported by state
and territory authorities under the existing E3 Program.
160. The principles of procedural fairness apply to decisions to suspend a
registration under the Act. Procedural fairness includes the right to a
fair hearing before a decision is made that affects the person's rights
and liabilities. Subject to the principles of procedural fairness, a
hearing may be constituted by written communication and need not
involve a meeting in-person.
Clause 50 Effect of suspension
161. Clause 50 clarifies that, if a registration is suspended, all products
covered by that registration are considered not to be registered and
therefore cannot be supplied, offered for supply, or used for a
commercial purpose. The suspension affects all product models covered
by the registration (e.g. the family of registered models). This
recognises that a registration with multiple models is in fact a single
registration, not multiple registrations that can be separated from
each other.
Clause 51 When is a suspension in force
162. Clause 51 governs the duration of a suspension, which comes into force
when the suspension notice is given to the registrant or the
registrant's contact person, and ceases on a day that must be specified
in the suspension notice.
Clause 52 Conditions on suspension
163. Clause 52 permits the Regulator to impose reasonable conditions on a
suspension, which must be communicated in the suspension notice and
must be complied with by a registrant. Non-compliance with conditions
is grounds for cancelling a registration under clause 54.
Clause 53 GEMS Regulator may vary suspension notice
164. Clause 53 permits the Regulator to vary a suspension to specify a
different cessation date or to impose different conditions on the
suspension. The Regulator must give the registrant notice of the varied
suspension.
Subdivision B-Cancelling registrations
Clause 54 Cancelling a model's registration
165. Product models may only be registered under the E3 Program if the
product and the registrant comply with statutory obligations and the
requirements of relevant determinations. Clause 54 therefore permits
the GEMS Regulator to cancel a model's registration in certain
circumstances where obligations and requirements are not complied with.
The power to cancel a registration, thereby preventing supply or use of
product models within Australia, provides a disincentive to breaching
requirements and registrants' obligations and offers an administrative
enforcement option without financial sanctions. A decision to cancel a
registration is reviewable under Part 9 of the Act and the Regulator
must give a registrant notice of a decision to cancel a registration in
accordance with clause 165.
166. Circumstances in which the Regulator may cancel a model's registration
are specified in clause 54 and generally relate to failures to abide by
certain obligations under the Act. These include circumstances where
the Regulator is satisfied that:
i) the model does not comply with requirements of relevant
determinations
ii) the registrant fails to comply with notices provided under clauses
55, 56, 57, or 61
iii) that any documentation submitted in connection with a registration
was not accurate when provided
iv) that changes have been made to the product so previous test results
are no longer accurate
v) that the registrant has breached a condition of the registration,
an exemption or a suspension of registration, or
vi) if the registration has been suspended and the Regulator cannot
contact the registrant or the registrant's contact person(s)
despite reasonable attempts to do so after the suspension.
167. A registration also must be cancelled if a registrant applies for the
registration to be cancelled.
168. A decision to cancel a registration takes effect at a time specified
in the notice given under clause 165, or the time specified under
subclause 54(2) if a registrant requests a cancellation. Similarly to a
registration suspension, a registration cancellation affects all models
covered by the registration.
169. The principles of procedural fairness apply to decisions to cancel a
registration under the Act. Procedural fairness includes the right to a
fair hearing before a decision is made that affects the person's rights
and liabilities. Subject to the principles of procedural fairness, a
hearing may be constituted by written communication and need not
involve a meeting in-person.
Division 7-Requirements for registrants
Subdivision A-Notifying GEMS Regulator of changes
Clause 55 Requirement for registrant to notify GEMS Regulator of changes
170. Registering a product model under the E3 Program permits the supply or
use of GEMS products in Australia but also carries some obligations for
registrants, which are required to support the effective administration
of the program.
171. To ensure the GEMS register is up to date and the GEMS Regulator has
the information necessary to administer the program, clause 55
establishes an obligation for registrants to notify the GEMS Regulator
of certain information, including any information or changes to product
or contact details that indicate that information in the GEMS register
is not correct, or that products no longer meet requirements.
172. To deter and sanction breaches of these obligations, contravening the
obligation to notify the GEMS Regulator may attract a civil penalty of
60 penalty units. Failure to notify the GEMS Regulator of necessary
information also is grounds for cancelling a registration under
subparagraph 54(1)(b)(i).
Subdivision B-Giving information relating to import, manufacture etc. of
products
Clause 56 Requirement for registrant to give information relating to
import, manufacture etc. of products
173. Clause 56 enables the Regulator to issue written notices to corporate
registrants requiring them to provide information regarding the supply,
import, manufacture or export of GEMS products. This data is necessary
to inform the GEMS Regulator in crucial functions under the E3 Program
including:
i. identifying which areas of the market are progressing toward greater
efficiency and those areas in which intervention is required to
drive greater efficiency
ii. informing consideration of any extension/reduction of the statutory
notice period before commencement of GEMS determinations
iii. assessing stockpiling risks
iv. evaluating the effectiveness of existing regulations, and the
accuracy of past projections of energy use and savings, and
v. targeting compliance checks to product areas and industry sectors
with the heaviest traffic.
174. It is appropriate to obtain this information directly from businesses
as commercially available sales data is limited in coverage, and
industry representatives have advised it may not always be up to date.
The usefulness of import and export data supplied by Customs is also
severely constrained by unhelpful product codes under which most
imports and exports are declared. The power under clause 56 is modelled
on a similar obligation under Regulation 9 of New Zealand's Energy
Efficiency (Energy Using Products) Regulations 2002, which already
applies to many Australian registrants. Unlike New Zealand's
Regulation, the reporting obligation under clause 56 is not mandatory
in all circumstances but only on receipt of notice from the Regulator.
This recognises that while data reporting is likely to be widespread or
even universal in the years soon after the Act commences, it may be
desirable to target data reporting to certain sectors in subsequent
years. A notice from the Regulator may request data for one or more
years.
175. The power to obtain information is limited to obtaining information
from constitutional corporations. This is to ensure a Constitutional
basis for this power, should any doubt arise that the power to obtain
information is not reasonably adapted to giving effect to the
commitments under the UNFCCC.
Subdivision C-Giving product of registered model to GEMS Regulator
Clause 57 Requirement for registrant to give product-determining whether
model complies with GEMS determination
176. Clause 57 enables the GEMS Regulator to compel a registrant to provide
a GEMS product for testing, to determine whether the model complies
with relevant GEMS requirements. The power may only be used where the
GEMS Regulator is satisfied that purchasing the product is not
practical, for example, because the purchase is refused or because the
GEMS Regulator has been unable to locate a product for sale.
177. This clause recognises that determining whether a product model
complies with GEMS requirements often cannot be done onsite but
requires more controlled testing conditions. Clause 57 ensures the
Regulator is able to obtain products for testing and is not frustrated
in this core duty by refusals to sell a product or limited public
availability of stock. Clause 57 does not require the Regulator to
require the registrant to provide a specific item of the product model
but the section is intended to allow the Regulator to do so, if this
will facilitate the testing process. It is appropriate to allow the
Regulator to choose a specific item, rather than requesting the
registrant to provide an item of their choice, because of demonstrated
instances of persons selecting 'golden samples' for testing that do not
reflect the performance of the majority of items within a product
model.
178. Subclause 57(5) states that a notice under section 57 is not a
legislative instrument. This is to assist readers understand the status
of notices under section 57, which do not meet the meaning of
legislative instrument under section 5 of the Legislative Instruments
Act 2003, and is not intended as an exemption from that Act.
Clause 58 Requirement for registrant to give product-retention and return
of product
179. Clause 58 governs the retention and return of products obtained under
clause 57. This clause permits the Regulator to take possession of
products obtained under clause 57 and obliges the Regulator to provide
a receipt to record the trail of possession. To strike the balance
between ensuring the Regulator can conduct vital testing functions and
preventing hardship for affected businesses, clause 58 permits the GEMS
Regulator to retain a product for a maximum six months. The product
must be returned to the owner before six months if the product is no
longer required to determine whether it meets relevant requirements or
if a decision is made that the product is not required for evidence
(whichever occurs first). The GEMS Regulator may dispose of a product
if he or she is unable to return the product to the registrant despite
reasonable attempts (see clause 60).
180. The obligation to return seized material may at times conflict with
other priorities, so subclauses 58(3) and 58(4) clarify that the
requirement to return seized material does not apply in certain
circumstances including where a court has ruled to the contrary, where
seized material is subject to forfeiture or a dispute over ownership,
or where the material is being used as evidence in unfinished legal
proceedings.
Clause 59 Requirement for registrant to give product-issuing officer may
permit product to be retained
181. The six-month time limit for retaining products obtained under clause
57 is likely to be sufficient in the majority of cases. However, in the
event that six months is insufficient time to commence proceedings or
to determine compliance with relevant GEMS requirements, clause 59
permits the GEMS Regulator to apply for an order to retain the product
for a longer time period. For example, a longer time period may be
required for certain types of products, such as lamps that may require
nine months testing time in order to determine compliance with
performance requirements. Longer time also may be required in cases
where test results are disputed and tests must be repeated. An officer
issuing an order for an extended retention period may grant a maximum
period of three years.
182. Before making an application to retain a product, the GEMS Regulator
must take reasonable steps to identify and notify any person with an
interest in the retention of the product (i.e. a person who may be
affected by the retention) of the intention to make an application.
This ensures that interested people have an opportunity to respond to
an application to retain for more than six months.
Clause 60 Requirement for registrant to give product-disposal of product
183. Experience with the existing E3 Program demonstrates there are
instances where a product cannot be returned to its owner, for example,
because the registrant cannot be contacted or is unable or unwilling to
accept the return of a product. Clause 60 recognises such instances and
permits the GEMS Regulator to dispose of products if the GEMS Regulator
has taken reasonable steps to return a product but cannot do so.
Subdivision D-Testing products or cancelling registration
Clause 61 Requirement for registrant-testing products or cancelling
registration
184. If the Regulator has reasonable grounds to believe that a product
model does not comply with relevant GEMS requirements, clause 61 allows
the GEMS Regulator to order a registrant to conduct further testing to
determine whether a product model does comply. A registrant must either
comply with the directions to test the product or apply to cancel
registration of the product model.
185. As implied by the reference to 'further' testing in subclause 61(2),
clause 61 is intended for use where the GEMS Regulator has tested a
product model (generally referred to as 'stage one testing') and
results (as advised to the registrant) indicate the model does not meet
relevant requirements. The registrant may choose to act on these
results and apply to cancel the registration or the registrant may
arrange additional testing (generally referred to as 'stage two
testing') to determine whether the model does comply. While stage one
testing is conducted at the Regulator's expense, stage two testing must
be conducted at the registrant's expense, to ensure that initial
results are not challenged frivolously or merely to delay a response to
non-compliant product models.
186. A notice under clause 61 can nominate specific product items that must
be tested, and can specify how tests must proceed. This is to ensure
that the Regulator can direct the stage two testing process and a
person who receives a notice under clause 61 cannot, for example, pick
products for testing that do not reflect the performance of the model
and cannot choose a test laboratory that might provide favourable
results.
187. Subclause 58(4) states that a notice under section 58 is not a
legislative instrument. This is to assist readers understand the status
of notices under section 58, which do not meet the meaning of
legislative instrument under section 5 of the Legislative Instruments
Act 2003, and is not intended as an exemption from that Act.
Subdivision E-Notifying other persons of suspension or cancellation of
registration
Clause 62 Requirement for registrant to notify other persons of suspension
or cancellation of registration
188. Clause 62 imposes an obligation on registrants to take reasonable
steps to inform potential suppliers when the registration for a product
model is suspended or cancelled. This obligation recognises the fact
that while it is an offence for any person to supply an unregistered
model of a GEMS product, the registrant is the person responsible for
the suspension or cancellation. The registrant also is best placed to
identify which downstream suppliers may be affected by the cancellation
or suspension. Registrants are not obliged to identify and inform all
potential downstream suppliers but must take reasonable steps to inform
people they know might supply products of the models covered by the
registration.
189. The reasonable steps expected to inform all suppliers the registrant
is aware of are not defined in the Act, they will depend on the
circumstances and the product models affected by suspension or
cancellation. They may include steps such as notifying people the
registrant supplied products to directly, public announcements, and
notifying peak industry and consumer bodies.
Division 8-Miscellaneous
Clause 63 Requirements for determining whether model complies with GEMS
determination
190. Individual products within a single product model may display some
variation or fault, so that a single product could fail testing due to
individual differences although the majority population of the model
does comply with relevant requirements. Clause 63 therefore allows the
GEMS Regulator to specify criteria that must be met for determining
compliance with relevant requirements, such as acceptable variation or
tolerance levels for measuring compliance with specific GEMS
requirements.
Clause 64 Applications-basic requirements
191. Clause 64 states that all applications under Part 5 of the Act must
comply with the form and manner determined by the Regulator and be
accompanied by any fees or information required. The amount of fees,
and the type of information required, must be specified in legislative
instruments but the manner and form of the application is an
administrative matter to be determined by the Regulator.
192. Failure to include all required information in an application is
grounds for refusing the application under clause 66.
Clause 65 Applications-GEMS Regulator may request further information
193. Clause 65 allows the GEMS Regulator to request additional information
from an applicant under Part 5, even in the event that this information
is not required for an application by legislative instruments
established under clause 64. Information that may be required includes
test reports from persons authorised by the GEMS Regulator to test GEMS
products, instead of or in addition to any test reports compiled by
persons not authorised by the GEMS Regulator. The Regulator may require
the additional information to be verified by a statutory declaration.
Clause 66 Grounds for refusing an application
194. Clause 66 clarifies that all applications made under Part 5 of the Act
may be refused if they fail to meet the requirements for applications,
or fail to include requisite information.
195. Applications to register a model or vary a registration also may be
refused if various people connected to the application have contravened
the Act, have breached conditions of a registration or have in the past
been a registrant for a registration that was suspended or cancelled.
This provision allows the Regulator to refuse registrations to people
with a history of poor compliance with various obligations, acting as a
disincentive to breaches of the Act and assisting to manage the risk of
non-compliance.
Clause 67 Notice of decisions
196. Clause 67 requires the Regulator to give notice of decisions on
applications to relevant people. To ensure applicants are kept aware of
the progress of applications at reasonable intervals, clause 67 also
obliges the Regulator to decide an application under clauses 41, 46 or
47 within 42 days of receiving a completed application or provide
written advice to applicants that the application is still being
considered. The period of 42 days is automatically extended if
additional information is requested under clause 65, by the length of
time taken to respond to a request for additional information.
Clause 68 Notice given to contact person taken to be given to applicant or
registrant
197. Clause 68 clarifies that a notice issued under the Act is deemed to be
given to the applicant or registrant if it is given to a contact person
they nominate. Accepting communications is one of the chief functions
of a contact person, enabling the Regulator to communicate easily and
reliably regarding issues under the Act while allowing a registrant or
applicant to delegate communication duties.
Part 6-The GEMS Regulator
Division 1-Guide to this Part
Clause 69 Guide to this Part
198. Clause 69 provides a simplified outline of Part 6 of the Act, which
establishes the GEMS Regulator and sets out the Regulator's functions
and powers to administer the E3 Program.
Division 2-Who is the GEMS Regulator
Clause 70 The GEMS Regulator
199. Clause 70 establishes the office of the GEMS Regulator, who is
responsible for administering the Act and other associated duties.
200. The GEMS Regulator must be an officer within the Department
responsible for the Greenhouse and Energy Minimum Standards Act 2012,
designated in writing by the Minister. The written designation does not
constitute a legislative instrument.
201. To ensure the GEMS Regulator is sufficiently qualified for this
leadership position, the Regulator must be a Senior Executive Service
employee of the Australian Public Service. A senior officer with the
necessary skills and expertise is required to administer the Scheme,
because the Regulator is central to the success and accountability of
the E3 Program in regulating GEMS products and reducing Australia's
greenhouse gas emissions.
202. Subclause 66(4) states that an instrument under section 66 is not a
legislative instrument. This is to assist readers understand the status
of instruments under section 66, which do not meet the meaning of
legislative instrument under section 5 of the Legislative Instruments
Act 2003, and is not intended as an exemption from that Act.
Division 3-Functions of GEMS Regulator under this Act
Clause 71 Functions of GEMS Regulator under this Act
203. Clause 67 sets out the functions of the GEMS Regulator as the chief
officer responsible for the E3 Program.
204. In addition to administering and enforcing the Act, the Regulator has
a function assisting and advising participating jurisdictions to
develop GEMS determinations, for example, by providing information
obtained under the Act. The Regulator also has a function of reviewing
and evaluating the operation of the Act from time to time, although
this function does not extend to reviewing the operation of the Act as
required under clause 176 of the Act, which must be conducted by an
independent party.
Division 4-Conferral of functions etc. on GEMS Regulator by state and
territory laws
Clause 72 Commonwealth consent to conferral of functions etc. on GEMS
Regulator by state and territory laws
205. Clause 72 provides that the Regulator may be granted additional
functions, powers or duties under state and territory laws and sets
out some limitations on the conferral of additional functions. This
clause emphasises that the Regulator cannot be granted powers,
functions or duties without the written agreement of the responsible
Commonwealth Minister, or any powers, functions or duties that would
contravene Constitutional doctrine or exceed the Commonwealth's
Constitutional powers.
Clause 73 How duty is imposed on GEMS Regulator by state and territory laws
206. Clause 73 sets out the processes by which duties, in contrast to
functions, can be imposed on the GEMS Regulator by state and territory
laws.
207. This clause is informed by Part 10 of Drafting Direction 31 by the
Office of Parliamentary Counsel and is intended to overcome the
limitations of R v Hughes (2000) 171 ALR 155, to ensure that states
and Territories may confer duties on the GEMS Regulator as part of the
cooperative E3 Program.
208. Clause 73 clarifies that duties can be imposed on the GEMS Regulator
by state and territory laws to the extent that imposing the duty does
not exceed the legislative power of the jurisdiction imposing the duty
or any Constitutional restriction on duties that can be required of
the GEMS Regulator.
209. While the imposition of a duty must be within the legislative power of
the jurisdiction imposing the duty, subclause 69(3) provides that if a
legal doctrine requires a duty to be imposed by Commonwealth law to
ensure its validity then the duty should be deemed to be imposed by
the GEMS Act and supported by all relevant Constitutional powers, to
the fullest extent permitted by Commonwealth legislative powers and
Constitutional doctrines.
Clause 74 When state and territory laws impose a duty on GEMS Regulator
210. Clause 74 clarifies that imposing a duty on the GEMS Regulator under
state and territory laws does not require a particular form of words
but can be achieved by any legislation that confers a function or
power in a manner that gives rise to an obligation to exercise or
perform the function or power conferred.
Division 5-General provisions relating to GEMS Regulator
Clause 75 Powers of the GEMS Regulator
211. Clause 75 grants the GEMS Regulator, in general terms, power to take
necessary or convenient steps to discharge his or her functions under
the Act. This clause does not permit unreasonable actions by the GEMS
Regulator but is intended to ensure that the GEMS Regulator has power
to take action that is necessary or convenient to discharge functions
but is not expressly permitted elsewhere in the Act.
Clause 76 GEMS Regulator has privileges and immunities of the Crown
212. Clause 76 clarifies that the GEMS Regulator is considered an extension
of the Australian Government when conducting official functions, so
has the privileges and immunities of the Crown.
Clause 77 GEMS Regulator may charge for services
213. Clause 77 provides legislative power for the GEMS Regulator to charge
fees for services. Fees must be a reasonable reflection of costs
incurred providing each service. Fees permitted under clause 77 should
be differentiated from fees permitted by the Greenhouse and Energy
Minimum Standards (Registration Fees) Act 2012 and examples may
include fees to process an application to alter a registration or fees
to provide aggregate reports of data held on the GEMS Register.
Clause 78 Arrangements with other agencies
214. As the GEMS legislation builds on 25 years of experience with the
state- and territory-based E3 Program, it is highly desirable to
retain the skills and expertise of state and territory agencies in the
future program. Other agencies, such as the Australian Competition and
Consumer Commission, also have expertise to contribute to product
regulation programs like the E3 Program. Clause 78 therefore empowers
the GEMS Regulator to make arrangements with Commonwealth, state and
territory agencies to provide officers and assistance to discharge the
Regulator's functions, duties and powers under the E3 Program.
Clause 79 Consultants
215. Recognising that private sector expertise may be useful for the E3
Program in addition to expertise of Commonwealth, state and territory
agencies, clause 79 permits the Regulator to engage consultants to
assist in carrying out the Regulator's functions.
Clause 80 Delegation
216. Clause 80 sets out the Regulators powers to delegate functions and
powers under the Act to Commonwealth, state or territory officers. The
clause permits the Regulator to delegate powers or functions to
officers or employees of the Commonwealth Government, or the
governments of Australia's states and Territories.
217. It is appropriate to allow the Regulator to delegate functions to this
broader range of public service officers instead of limiting it to,
for example, Commonwealth Senior Executive Services (SES) officers,
due to the work required to discharge certain functions and powers.
218. The Regulator's function in registering product models, for example,
requires the approval of approximately 5,000 registration applications
each year - and the consideration of an even larger number. The
Regulator's functions of inspecting GEMS premises, and arranging for
GEMS products to be tested, also will require large workloads in
regional and central locations in each Australian jurisdiction.
219. Senior Executive Services officers are expected to manage major teams
and policy issues within the Commonwealth Government and cannot be
expected to have the time available to personally approve 5,000
registration applications each year, or inspect premises around
Australia. Registering products would involve unreasonable costs if
agencies were required to pay additional SES salaries for the sole
purpose of approving applications to register GEMS products.
220. It also is appropriate to allow delegation beyond the Commonwealth
public service due to the cooperative nature of the E3 Program. The
national Regulator will administer the E3 Program but is likely to
contract state and territory officers to provide certain services,
such as product registration and store inspections. This will ensure
the E3 Program retains the expertise of state and territory agencies
and officers currently working in the E3 Program. Australian
governments have worked cooperatively under the E3 Program and intend
for this to continue under the enhanced national Program.
221. An alternative approach may be to restrict the Regulator's delegation
power to Commonwealth SES officers, and state or territory
equivalents, with a power to sub-delegate to a wider range of public
service officers. However, given this option does not avoid the need
to delegate to non-SES staff, would involve unnecessary administrative
steps, and would provide a sub-delegation power broader than the
initial delegation, this option is not favoured. Instead, the GEMS
Regulator will have the power to delegate to any appropriate public
service officer, and that delegate will have no power to sub-delegate
functions or powers.
Part 7-Monitoring and investigation
Division 1-Guide to this Part
Clause 81 Guide to this Part
222. Clause 81 provides an outline of Part 7 of the Act, which provides the
powers and processes by which compliance with the Act may be
investigated.
Division 2-GEMS inspectors
Clause 82 Appointment of GEMS inspectors
223. Clause 82 grants the GEMS Regulator power to appoint GEMS inspectors,
who are the officers chiefly responsible for gathering information
about compliance with the Act. In accordance with the principles in
Chapter Seven of the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers, GEMS inspectors must be
Australian public sector employees that the GEMS Regulator is satisfied
have the experience or training necessary for the task. Inspectors
cannot be appointed without the written agreement of the relevant
agency or jurisdiction.
224. Inspectors are not limited to employees with a certain seniority, for
example Executive Level or Special Executive Service employees, as this
would unnecessarily limit the people available to be GEMS inspectors
and impose unnecessary costs on government. It also would be unfeasible
to expect such senior employees have the time available to inspect
goods and premises in each Australian jurisdiction. To comply with the
principles in Chapter Seven of the Guide to Framing Offences,
inspectors are limited to public sector employees with the appropriate
skills and training.
225. Nothing about the requirements for inspectors would prevent the GEMS
Regulator engaging people who do not meet these requirements for tasks
that do not require the exercise of GEMS inspector powers, for example,
conducting visual surveys of public premises to identify trends in
product sales or identify products that do not carry labels.
226. Subclause 78(5) states that a direction under section 78 is not a
legislative instrument. This is to assist readers understand the status
of directions under section 78, which do not meet the meaning of
legislative instrument under section 5 of the Legislative Instruments
Act 2003, and is not intended as an exemption from that Act.
Clause 83 GEMS Regulator is an inspector
227. Clause 83 clarifies that the GEMS Regulator is a GEMS inspector, with
the functions, powers and obligations of a GEMS inspector.
Clause 84 Identity cards
228. GEMS inspectors must be able to identify themselves before carrying
out various functions (see for example clause 87). Clause 84 therefore
requires the GEMS Regulator to issue all inspectors with photo ID
cards, which must be carried by inspectors at all times they are acting
in that official capacity.
Clause 85 Offence for not returning identity card
229. GEMS inspectors are required to return identity cards when they cease
their role as inspectors. Clause 85 supports this obligation with an
offence punishable by one penalty unit for inspectors who fail to
return identity cards as soon as practicable after ceasing that role.
Division 3-Inspecting public areas of GEMS business premises
Clause 86 Inspection powers in public areas of GEMS business premises
230. Clause 86 outlines a GEMS inspector's powers to inspect public areas
of GEMS business premises (defined in clause 5) to monitor and
investigate compliance with the Act. These powers extend to purchasing,
inspecting and collecting information and products that are publicly
available but do not extend to searching the premises or obtaining
evidence by photographing or testing items or activities on the
premises.
231. A GEMS inspector is not required to provide identification before
exercising powers to inspect public areas of GEMS business premises but
an occupier of GEMS business premises retains all rights to refuse
entry or refuse permission for a GEMS inspector to remain on the
premises.
Division 4-Monitoring
Subdivision A-Monitoring powers
Clause 87 GEMS inspector may enter premises by consent or under a warrant
232. In addition to inspection powers that may be freely exercised in
public areas of GEMS business premises, GEMS inspectors have additional
monitoring powers that may be exercised with consent or under a
monitoring warrant. The occupier of GEMS business premises is not
required to give consent to an inspector's entry or exercise of
monitoring powers. If consent is granted, the occupier remains free to
subsequently withdraw that consent at any time and an inspector must
leave the premises if consent is withdrawn, or otherwise ceases to have
effect (see paragraphs 236-238 of the explanatory memorandum to compare
monitoring powers with investigation powers).
Clause 88 Monitoring powers of GEMS inspectors
233. Clause 88 sets out an inspector's monitoring powers under a warrant or
consent, which go beyond the inspection powers available under clause
86 and permit an inspector to, among other things, search premises,
operate GEMS products, measure or test any thing on the premises,
photograph things or make copies of documents, or operate electronic
equipment.
234. To remove any doubt, a GEMS product may be operated as a GEMS product
- for example to test its operation - without any suspicion that it
contains relevant data (see clause 89). However, if a GEMS product is
intended to be operated for the purpose of retrieving or copying data,
the caveats in clause 89 apply to that use.
Clause 89 Operating electronic equipment
235. Clause 89 provides detail about GEMS inspectors' power to operate
electronic equipment when entering premises with consent or under
warrant. In this context, electronic equipment primarily refers to, but
is not limited to, data storage equipment such as computers that may
have information relevant to monitoring compliance with the Act. This
power is necessary to ensure a GEMS inspector can obtain access to
electronic records that may indicate whether the Act is being complied
with or whether information provided under the Act is correct.
236. Inspectors' power to operate electronic equipment extends to copying
data from the electronic equipment onto storage devices. However, an
inspector may only operate electronic equipment if he or she reasonably
believes this can occur without damaging the equipment. Nothing in
clause 89 affects any liability or indemnity a court may find for
damage to electronic equipment.
Clause 90 Accessing information held on certain premises-notification to
occupier
237. Clause 90 requires a GEMS inspector to notify the occupiers of other
premises (if practicable) whenever the inspector exercises the power
under 89 (1) to use electronic equipment to access information that is
held on other premises. This clause is a standard provision in
Commonwealth warrant powers and ensures that inspectors can access
electronic evidential material that is not physically present on the
premises, for example, via intranet links. It also ensures that the
occupier of other premises from which evidential material is accessed
is made aware of the access.
Clause 91 Expert assistance to operate electronic equipment
238. Clause 91 supports GEMS inspectors' powers to operate electronic
equipment under a monitoring warrant by permitting an inspector to
secure electronic equipment in order to engage expert assistance to
operate the electronic equipment - where he or she believes that expert
assistance is required. As a GEMS inspector may not be accompanied by
an expert assistant when exercising monitoring powers, clause 91
permits a GEMS inspector to secure equipment for up to 24 hours (longer
on application) in order to engage assistance.
239. An inspector may only secure equipment if the inspector has reasonable
grounds to believe relevant data on the equipment may be destroyed or
altered if the equipment is not secured.
Clause 92 Securing evidence of the contravention of a related provision
240. The monitoring powers of a GEMS inspector under a monitoring warrant
(see clause 94) do not extend to seizing evidence. Monitoring powers
are available for the purpose of determining whether the Act is being
complied with, whereas seizing evidence is a more coercive power and
should be exercisable only where a issuing officer is satisfied that an
inspector has in fact located evidence of a breach of the Act (see
clause 107).
241. However, to ensure that evidence located during an inspection is not
disposed of before an issuing officer has the opportunity to authorise
seizure, clause 92 grants a GEMS inspector the power to secure any
thing he or she reasonably believes provides evidence of a
contravention of the Act for up to 24 hours. An issuing officer may
extend the period beyond 24 hours.
Subdivision B-Persons assisting GEMS inspectors
Clause 93 Persons assisting GEMS inspectors
242. GEMS inspectors may require assistance when carrying out their
functions and clause 93 establishes clear legislative basis for such
assistance. A person assisting a GEMS inspector has the power to enter
premises and assist an inspector with any duties or powers to determine
whether the Act is complied with. Any action validly taken in respect
of this power is taken under clause 93 to be done by the GEMS
inspector.
243. Subclause 88(5) states that a direction under paragraph 88(2)(c) is
not a legislative instrument. This is to assist readers understand the
status of directions under paragraph 88(2)(c), which do not meet the
meaning of legislative instrument under section 5 of the Legislative
Instruments Act 2003, and is not intended as an exemption from that
Act.
Subdivision C-Monitoring warrants
Clause 94 Monitoring warrants
244. A GEMS inspectors monitoring powers are exercisable with consent or
under a monitoring warrant obtainable under clause 94.
245. To ensure warrants are issued and warrant powers are exercised only in
appropriate situations, clause 94 details the procedure by which a GEMS
inspector may obtain a warrant from an issuing officer in order to
determine whether the Act is complied with. Clause 94 also sets out the
mandatory content of a monitoring warrant.
Division 5-Investigation
Subdivision A-Investigation powers
246. While monitoring powers under division 4 are available to determine
whether the Act is being complied with, investigation powers are
available where a GEMS inspector has reasonable grounds to suspect that
premises contain evidence of contravention of the Act.
247. It is appropriate to separate monitoring and investigation powers and
warrants due to the nature of the product regulation regime. Under the
GEMS Act, all businesses in Australia have an obligation to consider
the nature of regulated products and not supply or use products that do
not meet requirements. These businesses accept a commercial benefit by
dealing with GEMS products and, to permit an effective inspection
regime, monitoring warrants and monitoring powers are necessary to
check that the regulatory obligations are complied with.
248. However, more invasive powers such as seizing evidence should be
subject to a higher standard, so it is appropriate to reserve such
matters for investigation warrants that require reasonable suspicion of
wrongdoing.
Clause 95 GEMS inspector may enter premises by consent or under a warrant
249. Similarly to monitoring powers, a GEMS inspector may enter GEMS
premises to exercise investigation powers by consent or under a
warrant. However, a GEMS inspector may only enter GEMS premises to
exercise investigation powers if the inspector has reasonable grounds
to suspect the premises contain evidence of a contravention of the Act
(evidential material), even if the occupier of the premises consents to
entry. A GEMS inspector generally must identify himself or herself to
the occupier of the premises before entering premises under warrant
(see clause 114).
Clause 96 Investigation powers of GEMS inspectors
250. If a GEMS inspector enters GEMS premises under consent, clause 96
permits the inspector to search the premises for the evidential
material the inspector suspects is on the premises.
251. If an inspector enters GEMS premises under an investigation warrant,
investigation powers extend to seizing evidential material; inspecting,
testing and copying evidential material; and the power to take
equipment necessary to exercise investigation powers onto the premises,
or operate electronic equipment found of the premises. It is
appropriate to limit the extended range of investigation powers to
cases where a warrant is issued to ensure the judiciary maintains
oversight of these investigation powers.
Clause 97 Operating electronic equipment
252. To ensure a GEMS inspector is able to obtain access to electronic
records that may contain evidential material, clause 97 empowers a GEMS
inspector to operate any electronic equipment on GEMS premises that the
inspector suspects contains evidential material, including computers
and other electronic storage devices. These powers are available
whether the inspector enters under consent or an investigation warrant.
253. In addition to the power to operate electronic equipment, clause 97
grants GEMS inspectors the power to put the evidential material in
documentary form (i.e. print the material) and to make electronic
copies of the evidential material, and the power to remove the
documents or copies from the premises. These powers are available
whether the inspector enters under consent or an investigation warrant.
If an inspector enters the premises under a warrant, he or she also may
seize electronic equipment and storage devices that are found to
contain evidential material, but only if it is not practical to make
electronic copies or put the evidence in documentary or if possessing
the electronic equipment or storage device would constitute an offence
by the occupier of GEMS premises.
254. Electronic equipment and storage devices may only be operated if the
GEMS inspector reasonably believes this can be done without damaging
the equipment or device.
Clause 98 Accessing evidential material held on certain premises-
notification to occupier
255. Clause 98 requires a GEMS inspector to notify the occupiers of other
premises (if practicable) whenever the inspector exercises the
monitoring power under 97 (1) to access evidential material held on
those other premises. This clause is a standard provision in
Commonwealth warrant powers and ensures that inspectors can access
electronic evidential material that is not physically present on the
premises, for example, via intranet links. It also ensures that the
occupier of other premises from which evidential material is accessed
is made aware of the access.
Clause 99 Expert assistance to operate electronic equipment
256. In terms similar to clause 91, and for similar reasons, clause 99
permits a GEMS inspector to secure electronic equipment for up to 24
hours, to provide the inspector time to engage expert assistance to
operate electronic equipment.
Clause 100 Seizing evidence of contravention of related provision
257. Investigation warrants must specify the evidential material the
inspector reasonably suspects is located on GEMS premises. This is
appropriate to ensure seizure powers are used in a targeted and
considered manner.
258. However, clause 100 permits a GEMS inspector to seize evidential
material, when entering premises under a investigation warrant, of a
kind not specified in the warrant if it is found during a search and it
provides evidence of a contravention of the Act. This is to ensure that
the appropriate requirement to target search and seizure warrants does
not unduly prevent the gathering of evidence of related offences that
were not anticipated when the warrant was issued. Warrants should only
be available where there are reasonable grounds to suspect an offence
has been or will be committed but this requirement should not force
exclusion of evidence of other offences that is discovered during a
search.
Subdivision B-Persons assisting GEMS inspectors
Clause 101 Persons assisting GEMS inspectors
259. Clause 101 provides, in terms similar to clause 93 and for similar
reasons, that a GEMS inspector can exercise investigation powers with a
person assisting him or her.
260. Subclause 106(5) states that a direction under paragraph 106(2)(c) is
not a legislative instrument. This is to assist readers understand the
status of directions under paragraph 106(2)(c), which do not meet the
meaning of legislative instrument under section 5 of the Legislative
Instruments Act 2003, and is not intended as an exemption from that
Act.
Subdivision C-General provisions relating to seizure
Clause 102 Copies of seized things to be provided
261. If a GEMS inspector seizes a storage device, document or other thing
that can be readily copied while exercising investigation powers,
clause 102 permits the occupier of GEMS premises, or a person who
represents the occupier, to request a copy of the seized thing. Clause
102 ensures that a person can, for example, retain a copy of seized
material for their own records or use.
Clause 103 Receipts for seized things
262. To ensure a record of seizure is maintained and available to the
person from whom material is seized, clause 103 requires a GEMS
inspector to give a receipt for any thing that is seized when
exercising investigation powers.
Clause 104 Return of seized things
263. The Act authorises seizure of material only for specific reasons and
does not permit material to be retained indefinitely. Clause 104
therefore requires the GEMS Regulator to take reasonable steps to
return to the owner, or the person from whom it was seized, any thing
seized under the Act. The GEMS Regulator must act on this obligation
within 60 days, or before 60 days if the seized thing is not required
for evidence or the reason the thing was seized is no longer relevant.
264. The obligation to return seized material may at times conflict with
other priorities, so clause 104 clarifies that the requirement to
return seized material does not apply in certain circumstances
including where a court has ruled to the contrary, where seized
material is subject to forfeiture or a dispute over ownership, or where
the material is being used as evidence in unfinished legal proceedings.
Clause 105 Issuing officer may permit a thing to be retained
265. To ensure the sixty-day limit for retaining seized material does not
prejudice ongoing investigations or legal proceedings, clause 105
permits an issuing officer to issue an order extending the period a
thing may be retained, up to a maximum period of three years. Clause
105 requires the GEMS Regulator to make reasonable attempts to identify
all persons with an interest in the items that may be retained, and
notify them of the application wherever practicable, to ensure that
persons with an interest in seized material have an opportunity to
respond to the proposal to retain the item(s) for more than 60 days.
Clause 106 Disposal of things
266. If the GEMS Regulator is unable to return seized material as required
by clause 104, for example because return is refused or the person to
whom the item should be returned cannot be located, clause 106 permits
the Regulator to dispose of seized material.
Subdivision D-Investigation warrants
Clause 107 Investigation warrants
267. The investigation powers in Division 5 are exercisable under an
investigation warrant issued under clause 107. Clause 107 sets out the
procedure for obtaining an investigation warrant and the mandatory
content of such warrants.
Clause 108 Investigation warrants by telephone, fax etc.
268. In some circumstances a GEMS inspector may urgently require an
investigation warrant, for example, where the inspector has secured
material for 24 hours under clause 92 or where the time take to obtain
a warrant may result in evidential material being altered or disposed
of. Clause 108 therefore sets out the procedures by which an
investigation warrant may be obtained from an issuing officer by means
of electronic communication, and various controls to ensure this form
of warrant is valid and not misused.
Clause 109 Authority of warrant
269. The copy of a warrant made in accordance with clause 108(6) is not
physically the warrant made by an issuing officer. Clause 109 ensures
that the form of warrant completed by a GEMS investigator has the same
authority as a warrant completed by the issuing officer (if all legal
requirements are complied with). This is to prevent any argument over
the validity of a form of warrant completed and presented by an
inspector. Also to prevent arguments over validity, clause 109 directs
a court to assume that a warrant completed by an inspector is not
authorised if the counterpart warrant signed by the issuing officer
cannot be produced in legal proceedings.
Clause 110 Offence relating to warrants by telephone, fax etc.
270. To discourage and punish any misuse of warrants obtained by electronic
communication, clause 110 establishes an offence punishable by two-
years imprisonment for a range of conduct by a GEMS inspector with
regards to investigation warrants.
Clause 111 Completing execution of an investigation warrant after temporary
cessation
271. An investigation warrant usually will cease to have effect if the GEMS
inspector and all persons assisting the execution of the warrant cease
the execution and leave the premises. This ensures that a search is
conducted in a timely fashion and that a warrant does not authorise a
GEMS inspector to search a premises multiple searches from time to
time.
272. However, some flexibility is required to ensure that a GEMS inspector
can leave the premises if required, for example to fetch necessary
equipment or avoid a dangerous situation. Clause 111 therefore provides
that an investigation warrant, which is still in force according to the
terms of the warrant, does not cease to have effect if the inspector
and all persons assisting are absent from the premises for one hour or
less in any situation other than an emergency; for twelve hours in an
emergency situation; or for longer than 12 hours where the occupier
consents in writing, or where an issuing officer considers there are
exceptional circumstances that justify authorising a longer period than
12 hours (e.g. the emergency preventing the execution of the warrant
continues for more than 12 hours).
Clause 112 Completing execution of warrant stopped by a court order
273. Clause 112 clarifies that a warrant that is stopped by court order and
is later revoked or reversed may, if still in force, be executed
without a new warrant needing to be issued.
Division 6-General provisions relating to monitoring and investigation
Subdivision A-Obligations of GEMS inspectors in entering premises
Clause 113 Consent
274. Entry into GEMS premises to exercise various powers under Part 6
Division 4 may be exercised with the consent of the occupier. Clause
113 sets out the parameters for valid consent, noting that consent must
be informed and voluntary and that an occupier remains free to withdraw
consent at any time or to consent to entry only during a certain time
period.
Clause 114 Announcement before entry under warrant
275. While certain powers to inspect public premises may be exercised
without announcement or identification, clause 114 requires a GEMS
inspector to identify himself or herself in most circumstances and
announce the purpose of the visit before entering under a warrant, if
the occupier of the premises or that person's apparent representative
is present. This ensures that an occupier of GEMS premises who is
present is made aware before a GEMS inspector exercises monitoring or
investigation powers under warrant.
276. In some situations, the requirement to identify and announce the
purpose of the visit could result in serious detriment. Clause 114
therefore permits a GEMS inspector to enter without identifying himself
or herself or announcing their purpose in specific circumstances where
immediate entry is necessary to ensure human safety or effective
execution of the warrant. This allows flexibility in serious situations
but does not undermine the importance of identification and the
inspector still is obliged to provide identification as soon as
practicable after entry, if an occupier or their representative is
present.
Clause 115 GEMS inspector to be in possession of warrant
277. Clause 115 requires a GEMS inspector to possess the warrant issued by
the issuing officer, or the form of the warrant complete by the
inspector, permitting entry to GEMS premises. A GEMS inspector who does
not possess a warrant or copy of the warrant is not permitted to enter
GEMS premises as authorised by the warrant, and is not permitted to
exercise warrant powers.
Clause 116 Details of warrant etc. to be given to occupier
278. Clause 116 requires a GEMS inspector to provide a copy of a warrant to
the occupier of premises entered under warrant, or an occupier's
apparent representative, if either are present, and to inform the
person about their rights and obligations in relation to a warrant.
This obligation ensures that occupiers and representatives that are
present when a warrant is executed are granted an opportunity to
examine the warrant and are explicitly informed about their rights and
obligations (see clauses 119 and 120 for rights and obligations).
Subdivision B-Other powers of GEMS inspectors
Clause 117 Use of force in executing a warrant
279. Clause 117 authorises a GEMS inspector and a person assisting a GEMS
inspector to use force, against things, that is reasonably necessary to
carry out monitoring and investigation powers under warrant. For
example, it may be necessary to force a door to enter premises or
forcibly open a cabinet to search for evidential material and it is
appropriate to ensure the inspector can use such reasonable so the
execution of the warrant is not frustrated. Clause 117 does not
authorise the use of force against people in any circumstances.
Clause 118 GEMS inspector may ask questions and seek production of
documents
280. Clause 118 provides GEMS inspectors with powers, additional to those
previously described as monitoring or investigation powers, to request
information or documents relevant to the GEMS inspectors' purposes for
entering GEMS premises.
281. A GEMS inspector who enters premises with the consent of the occupier
is entitled to request information or documents from the occupier,
although there is no obligation for the occupier to grant the request.
282. A GEMS inspector who enters premises under a warrant may require any
person on the premises to provide information or documents. Failure to
comply with a requirement to provide information or documents without
reasonable excuse (e.g. requested information or documents are not in
the person's possession, or would tend to incriminate the person) is an
offence that carries a penalty of 30 penalty units. Clause 108 does not
impinge on the privilege against self-incrimination and a person is not
required to answer questions or produce documents if the material would
tend to incriminate them.
Subdivision C-Occupier's rights and responsibilities on entry
Clause 119 Occupier entitled to observe the execution of warrant
283. Clause 119 clarifies the right for occupiers of GEMS premises and
their apparent representatives, who are present when a warrant is
executed, to observe the execution of any warrant on their premises.
This right does not limit how the warrant may be executed or require an
occupier to witness all of an inspector's activities, but does
recognise that a person should not be excluded during the execution of
a warrant unless they attempt to obstruct the inspection.
284. Occupiers and representatives that are present when a warrant is
executed must be made aware of their rights under clause 119 (see
clause 116).
Clause 120 Occupier to provide GEMS inspector with facilities and
assistance
285. Clause 120 imposes an obligation on occupiers of GEMS premises, and
their apparent representatives, to provide reasonable facilities and
assistance required to effectively carry out warrant powers. This
obligation recognises that monitoring and investigation powers are
authorised by issuing officers for the purpose of determining whether
laws are being complied with and should not be obstructed. Failure to
provide reasonable assistance and facilities when requested carries a
penalty of 30 penalty units.
286. Occupiers and representatives that are present when a warrant is
executed must be made aware of their obligations under clause 120 (see
clause 116).
Subdivision D-General provisions
Clause 121 Compensation for damage to electronic equipment
287. Clause 121 clarifies that a person is entitled to compensation for
damage to electronic equipment operated during the course of an
inspection. It recognises the fact that powers to operate electronic
equipment under Division 4 and 5 do not excuse damage caused by a lack
of care.
Division 7-Giving GEMS information to GEMS inspectors
Clause 122 Meaning of person who has GEMS information
288. Clause 122 defines which people may be subject to coercive information
gathering powers the GEMS Regulator is provided under Division 7, being
people reasonably believed to have information or documents relevant to
investigating or preventing contravention of the Act or a criminal
offence relating to the Act (e.g. Division 136 of the Criminal Code Act
1995 - false or misleading information in an application).
Clause 123 GEMS Regulator may require a person to provide information
289. To ensure the GEMS Regulator is able to obtain information relevant to
investigating or preventing breaches of the Act or related laws, clause
123 grants the Regulator power to issue a notice to a person who has
GEMS information requiring them to provide specified information or
documents.
290. This power is designed to compel evidence from people who are
reasonably believed to have information relevant to breaches of the
law, and failure to comply with a notice is an offence punishable by
six months imprisonment and/or a fine of 30 penalty units.
Clause 124 GEMS Regulator may require a person to appear before a GEMS
inspector
291. Under clause 107, the GEMS Regulator's coercive information gathering
powers extend to issuing a notice requiring a person who has GEMS
information to appear before a GEMS inspector to answer questions or
produce specified documents. Failure to appear as directed in the
notice, or failure to answer questions or provide specified documents
when a person is able to provide the answer or documents, is an offence
punishable by six months imprisonment and/or 30 penalty units.
Division 8-Testing compliance of GEMS products
Clause 125 Authorising persons to test GEMS products
292. In addition to the monitoring and investigation powers of GEMS
inspectors, a key aspect of ensuring an effective E3 Program is testing
products to determine whether the product model complies with
requirements and labels. This will assist to deter products that are
energy inefficient, or otherwise non-compliant, from entering the
Australian market and assist to remove non-compliant products from the
market. Products may be tested as part of checking details provided at
the time of registration, or at a later time as part of the targeted
'check testing' regime.
293. Clause 125 therefore authorises people to test GEMS products if they
satisfy the requirements specified by the GEMS Regulator. For example,
the GEMS Regulator may specify that only people or laboratories
accredited by National Association of Testing Authorities, Australia
are permitted to test GEMS products to determine compliance with
requirements. To clarify, the GEMS Regulator does not personally
authorise a person to test GEMS products; clause 125 acts to authorise
the person if they meet the requirements established by the Regulator.
Clause 126 Testing GEMS products etc.
294. Clause 126 empowers authorised people to test GEMS products that are
purchased, given or seized under the Act, even if the testing would
result in damage or reducing the value of the tested product. Damage or
reduction in value in testing is permitted under the Act where this is
reasonably necessary for testing. For example a lamp (light bulb) may
suffer reduction in value due to the thousands of hours of operation
required by tests.
Division 9-Issuing Officers
Clause 127 Powers of issuing officers
295. Clause 127 clarifies that the officers empowered to issue warrants or
exercise other powers under the Act, defined as 'issuing officers' in
clause 5, are empowered in their personal capacity and do not represent
the court in deciding applications under the Act. However, issuing
officers are granted the immunities of the court and members of the
court when deciding applications. This recognises that issuing a
warrant is an executive function, not an exercise of judicial power,
and that issuing officers are granted this executive function in their
personal capacity and not as a judicial officer, maintaining a
separation of powers.
Part 8-Enforcement
Division 1- Guide to this Part
Clause 128 Guide to this Part
296. Clause 128 provides a simplified outline of Part 8 of the Act, which
governs enforcement of the Act via civil and criminal proceedings,
infringement notices, publicising contraventions, enforceable
undertakings, and injunctions.
Division 2-Civil penalty provisions
Subdivision A-Preliminary
Clause 129 Civil penalty orders
297. Clause 129 describes which clauses of the Act are civil penalty
provisions, enforceable by civil penalty orders and certain other
remedies under the Act.
Subdivision B-Obtaining a civil penalty order
Clause 130 Civil penalty orders
298. Clause 131 empowers the GEMS Regulator to apply for a civil penalty
order to remedy an alleged breach of the Act's civil penalty
provisions, and sets out the procedures for the Regulator applying for
and the court issuing civil penalty orders.
Clause 131 Civil enforcement of penalty
299. Clause 131 clarifies that a civil penalty order is a debt owed to the
Commonwealth, enforceable through civil debt proceedings and payable
into consolidated revenue.
Clause 132 Conduct contravening more than one civil penalty provision
300. Clause 132 clarifies that a person's conduct may contravene more than
one provision under the Act. The GEMS Regulator may institute
proceedings relating to any or all provisions allegedly contravened by
a person's conduct, although a person may only be held liable for one
pecuniary penalty for the same conduct.
Clause 133 Multiple contraventions
301. Clause 133 clarifies that the Court may issue a single penalty that
incorporates penalties for multiple contraventions of the Act and is
not required to issue separate penalty instruments. This will assist to
minimise court administration and consolidate legal proceedings.
Clause 134 Proceedings may be heard together
302. Clause 134 clarifies that a court may simultaneously hear two or more
proceedings for civil penalty orders, streamlining the process for
civil proceedings under this Act.
Clause 135 Civil evidence and procedure rules for civil penalty orders
303. Clause 135 clarifies that civil rules of evidence and procedure apply
when hearing proceedings for civil penalty orders. This clause ensures
that criminal rules of evidence and procedure are not applied during
proceedings for civil penalty orders.
Clause 136 Contravening a civil penalty provision is not an offence
304. This clause clarifies that breach of a civil penalty under the Act is
not a criminal offence, ensuring a clear distinction between civil and
criminal remedies to contraventions of the Act.
Subdivision C-Civil proceedings and criminal proceedings
Clause 137 Civil proceedings after criminal proceedings
305. Clause 137 provides that a court cannot issue a civil penalty order
against a person that has previously been convicted of a criminal
offence for the same conduct.
Clause 138 Criminal proceedings during civil proceedings
306. Clause 138 stays civil proceedings if criminal proceedings exist
related to the same conduct, to prevent any information that arises
during criminal proceedings prejudicing the civil proceedings. If the
criminal proceedings result in a conviction, clause 137 will ensure
that civil proceedings related to the same conduct are dismissed and
costs for the civil proceedings are not awarded.
Clause 139 Criminal proceedings after civil proceedings
307. Clause 139 clarifies that criminal proceedings may commence after
civil proceedings, even in the event the civil proceedings result in a
civil penalty order. This recognises the importance of criminal
proceedings and criminal penalties in dissuading and sanctioning
contraventions of the Act and ensures that criminal remedies are not
precluded by earlier civil action.
Clause 140 Evidence given in civil proceedings not admissible in criminal
proceedings
308. Clause 140 provides that evidence given by an individual during
proceedings for a civil penalty order cannot be used in any criminal
proceedings, against the same individual, relating to the same conduct.
This ensures that information or documents produced during civil
proceedings are not relied upon to support subsequent criminal
proceedings, unless they are criminal proceedings relating to
falsifying evidence in civil proceedings. While it is appropriate to
allow criminal proceedings after civil proceedings have ended, given
the overriding importance of the criminal justice system, criminal
proceedings not related to falsifying evidence must rely upon evidence
gathered during independent investigation, not evidence from prior
civil proceedings.
Subdivision D-Miscellaneous
Clause 141 Ancillary contravention of civil penalty provisions
309. Clause 141 supports the enforcement regime by ensuring that conduct
ancillary to the contravention of a civil penalty provision is
considered to be contravention of the provision itself. This ancillary
conduct includes any attempt to contravene a provision that does not
succeed, aiding or inducing a contravention of a civil penalty
provision and any conspiracy to contravene a civil penalty provision.
Clause 142 Continuing contraventions of civil penalty provisions
310. Clause 142 clarifies that certain actions are considered to be
repeated contraventions of the Act. The clause ensures that civil
obligation under the Act to do something by a certain deadline
continues until it is done, and is not discharged by mere failure to
meet the deadline. The clause also clarifies that every day the
obligation is not met constitutes a separate contravention of the civil
penalty provision. This is necessary to ensure that failure to abide by
obligations under the Act does not excuse a person from meeting those
obligations.
Clause 143 Mistake of fact
311. Clause 143 ensures that in civil penalty order provision hearings, a
person cannot be held liable if their actions arose from a legitimate
mistake of fact. This clause is important because clause 144 states
that, in civil penalty proceedings, it is not necessary to prove
intention, knowledge or other fault elements, an effect on civil
proceedings similar to the effect strict liability has on criminal
proceedings. To ensure that clause 144 does not result in liability for
simple errors of fact, clause 143 provides a 'defence' to civil penalty
proceedings on the grounds that a person's conduct was the result of a
considered but reasonable error of fact.
312. The person who asserts that a particular course of action resulted
from a mistake of fact has the burden of proving the matter.
Clause 144 state of mind
313. Clause 144 provides that it is not necessary to prove a person's
intention, knowledge or other fault elements in civil penalty
proceedings under this Act. This principle applies only to proceedings
for contravention of civil penalty provisions, not for ancillary
contravention of civil penalty provisions (i.e. proceedings for conduct
listed in clause 141).
314. Clause 144 ensures that civil penalty proceedings operate similarly to
proceedings for the strict liability criminal offences under the Act,
for the reasons detailed in paragraphs 41-44 of this explanatory
memorandum.
Example demonstrating the effect of clauses 143 and 144
315. Clause 16 provides a civil penalty for a person who supplies a GEMS
product that do not comply with relevant GEMS requirements. In
accordance with clause 144, it is not necessary to prove that a person
intended to supply a non-compliant GEMS product to secure a civil
penalty order; the act of supplying a non-compliant product itself is
sufficient to give rise to a penalty (all other legal requirements
being satisfied). However, if the person who supplied the GEMS product
can show they had actively considered whether the GEMS product met
relevant requirements (e.g. by obtaining the product model's technical
specifications from the manufacturer or from the Australian Government
Energy Rating website) and was under a reasonable belief the products
did meet relevant requirements (e.g. the information provided by the
manufacturer reported incorrect technical specifications), the person
would not be liable for supplying a non-compliant GEMS product.
316. In the latter case, a manufacturer may be liable for providing false
information in addition to any liability under this Act.
Division 3-Infringement notices
Subdivision A-Preliminary
Clause 145 Enforceable provisions
317. Clause 145 provides the basis for enforcing civil penalty provisions
with infringement notices. Criminal penalties under the Act are not
enforceable via infringement notices.
Subdivision B-Infringement notices
Clause 146 When an infringement notice may be given
318. Subclause 146(1) empowers GEMS inspectors to issue an infringement
notice where the inspector has reasonable grounds to believe a person
has contravened a civil penalty provision under the Act. Infringement
notices provide a simpler and faster remedy to suspected contravention
of the Act than formal civil or criminal proceedings.
319. An infringement notice must be issued within 12 months of an alleged
contravention being committed. An infringement issued later than this
is invalid and cannot be enforced.
320. To ensure the reasons for each notice are clear, a separate
infringement notice must be issued for each alleged contravention of
the Act, unless the contravention relates to an action that should have
been completed before a particular time and the ongoing failure to
complete the action constitutes multiple contraventions (see clause
142).
Clause 147 Matters to be included in an infringement notice
321. Clause 147 specifies a range of matters that must be included in each
infringement notice, including a statement that if the infringement
notice is paid within 28 days of it being issued, this does not
constitute an admission of guilt but does preclude any further
liability or proceedings related to the alleged contravention (unless
the notice is subsequently withdrawn).
322. Subclause 147(2) limits the amount payable under an infringement
notice to one-fifth the penalty that a court could impose in relation
to the alleged contravention. This ensures that infringement notices,
which do not reflect a court sanction or constitute an admission of
guilt, remain a lesser remedy to alleged contraventions of the Act.
Clause 148 Extension of time to pay amount
323. To ensure that person who wishes to pay an infringement notice is not
prevented from doing so by financial hardship or other difficulties,
clause 148 allows a person who has received an infringement notice to
apply to the Regulator for an extension of time to pay the infringement
notice.
Clause 149 Withdrawal of an infringement notice
324. A person who receives an infringement notice may elect to challenge
the notice rather than pay it. Clause 149 therefore sets out processes
for withdrawing infringement notices and provides guidance as to what
information the Regulator must and may take into account in considering
whether to withdraw an infringement notice.
325. A person may apply for a notice to be withdrawn even if they have
already paid the amount specified in the infringement notice. If the
notice is withdrawn the amount paid must be refunded. The Act does not
limit the time in which an application to withdraw an infringement must
be made but Regulations may provide for such matters (see clause 152).
It is appropriate to allow the Regulations to specify time limits to
ensure flexibility as experience with the E3 Program under GEMS
legislation grows.
Clause 150 Effect of payment of amount
326. Clause 150 ensures that paying an infringement notice discharges all
liability for the alleged contravention, without constituting an
admission of fault. This is appropriate for an administrative remedy
that may be discharged without legal advice or adjudication by the
courts. However, payment does not discharge liability if the notice is
subsequently withdrawn and the amount refunded. In this sense,
withdrawing a notice acts as if the notice was never issued.
Clause 151 Effect of this Division
327. Clause 151 clarifies that Division 3, Part 8 of the Act, dealing with
infringement notices, does not make infringement notices a mandatory
response to a suspected contravention - they remain a discretionary
remedy. Division 3 Part 8 also does not limit the option to take
enforcement action in various other ways, limit liability in any way
unless an infringement notice is paid, and does not limit a court's
ability to determine the amount of a penalty if a person is found to
have contravened a civil penalty provision enforceable under Division 3
(except as specified in clause 150, when an infringement has been
paid).
Clause 152 Further provision by regulation
328. Clause 152 permits the Regulations to make further provisions related
to infringement notices under Division 3, Part 8.
Division 4-Enforceable undertakings
Subdivision A-Preliminary
Clause 153 Enforceable provisions
329. Clause 161 permits offence provisions and civil penalty provisions to
be enforced via undertakings under Division 4, Part 8 of the Act. This
contrasts with infringement notices, which only may be used to enforce
civil penalty provisions.
Subdivision B-Accepting and Enforcing Undertakings
Clause 154 Acceptance of undertakings
330. Clause 154 enables the Regulator to accept written undertakings
committing a person to particular action (or inaction) in order to
prevent or respond to a breach of an enforceable provision.
Undertakings are enforceable in their own right (see clause 155) and
they may be entered into instead of, or in addition to, the Regulator
taking other disciplinary action.
331. Undertakings provide a remedy other than financial sanctions to past
or prospective breaches of the Act. For example, if the Regulator
becomes aware of a person offering to supply products that do not
comply with GEMS requirements, the Regulator might notify the person of
the possible contravention of the Act and accept an undertaking for the
person not to supply the products. Alternatively, if a person is found
to have supplied non-compliant models, the Regulator may accept an
undertaking for the supplier to compensate purchasers and fund
greenhouse gas offset measures to account for the difference between
the products' reported energy consumption and their actual energy
consumption.
332. Under 154(3), the person giving the undertaking may vary or withdraw
it at any time, if the Regulator gives written consent to the variation
or withdrawal. The Regulator's consent to vary or withdraw an
undertaking may be cancelled by the Regulator at any time, with written
notice to the person.
333. Subclause 154(4) states that consent given under section 154 is not a
legislative instrument. This is to assist readers understand the status
of consent given under section 154, which does not meet the meaning of
legislative instrument under section 5 of the Legislative Instruments
Act 2003, and is not intended as an exemption from that Act.
Clause 155 Enforcement of undertakings
334. Clause 155 enables the Regulator to apply to have undertakings given
under clause 154 enforced in court. Clause 155 also lists the orders a
court can impose to remedy a breach of an undertaking, including orders
to comply with the undertaking, to pay a pecuniary penalty to the
Commonwealth, to compensate other people, or any other order the court
sees fit.
Division 5-Injunctions
Subdivision A-Preliminary
Clause 156 Enforceable Provisions
335. Clause 156 provides that both offence provisions and civil penalty
provisions in Parts 3 and 5 of the Act are enforceable via injunctions.
Subdivision B-Injunctions
Clause 157 Grant of injunctions
336. Clause 157 empowers the court to grant injunctions on application by
the Regulator. A court can issue injunctions to prevent a person
engaging in particular conduct (e.g. supplying non-compliant products)
and injunctions to compel a person to engage in particular conduct
(e.g. display information in accordance with GEMS labelling
requirements) if the court is satisfied an injunction is necessary or
desirable to respond to, or prevent, a contravention of an enforceable
provision. A court also may grant injunctions related to an action,
whether or not it contravenes the Act, if all parties to the
proceedings consent to the injunction.
Clause 158 Interim injunctions
337. In some cases, an interim injunction may be required to prevent or
require certain action while injunction proceedings are carried out.
For example, if a person is using for a commercial purpose a product or
products that are suspected to have serious environmental detriment
forbidden by GEMS requirements, an interim injunction may stop the use
of the product(s) until proceedings for an injunction under clause 157
are complete.
338. Clause 158 therefore enables the court to grant an interim injunction
while it is considering an application for an injunction under Clause
157. A court cannot require the applicant to give an undertaking
regarding damages as a condition of the interim injunction and refusing
to give an undertaking regarding damages is not grounds for refusing to
grant an interim injunction.
Clause 159 Discharging or varying injunctions
339. Clause 159 clarifies that injunctions can be varied or discharged by a
relevant court.
Clause 160 Certain limits on granting injunctions not to apply
340. Clause 160 provides that a court can issue an injunction to prevent
conduct or require a person to engage in specified conduct whether or
not the specific conduct is occurring, has occurred in the past, or is
likely to give rise to damages. This ensures a court can prevent or
require conduct to uphold the purposes of the Act without having to
wait for countervailing conduct to occur.
Clause 161 Other powers of a relevant court unaffected
341. Clause 161 clarifies that injunction powers under Division 5 Part 8 of
the Act are additional to, not in replacement of, any other powers of
the court.
Division 6-Publicising offences, contraventions and adverse decisions
Clause 162 GEMS Regulator may publicise certain offences, contraventions
and adverse decisions
342. Clause 162 allows the Regulator to publicise the details of certain
matters of fact including proven civil and criminal contraventions of
the Act, issuance of infringement notices, and injunctions. Clause 162
also permits the Regulator to publicise various decisions including
decisions to impose conditions on, to suspend or to cancel a GEMS
product model's registration.
343. Ensuring information is publicly available about these decisions and
enforcement actions is important not only to provide transparency in
the work of the Regulator but because they have important implications
for consumers and people who may incur rights and responsibilities
under the E3 Program. While upstream suppliers such as manufacturers or
importers generally will register a product model, downstream suppliers
accrue obligations to ensure products comply with GEMS requirements. If
a product model's registration has been suspended or cancelled, or
there are certain conditions relating to supply, this is directly
relevant to downstream suppliers' obligations. Furthermore, if a
particular business has a demonstrated record of supplying non-
compliant products, this information is relevant to downstream
suppliers or consumers considering the purchase of a GEMS product. It
is appropriate for a government in possession of information of such
relevance to the market to share the information with the market.
Enabling the GEMS Regulator to publicise these decisions and
enforcement actions ensures that Australian businesses and consumers
are able to make better informed decisions about products that will
affect their potential liabilities as well as their cash, energy and
greenhouse gas budgets.
Part 9-Reviewing decisions
Division 1-Guide to this Part
Clause 163 Guide to this Part
344. Clause 163 provides a guide to Part 9 of the Act, which governs the
review of decisions under this Act.
Division 2-Review of decisions
Clause 164 Persons affected by reviewable decisions
345. Clause 164 sets outs which decisions under the Act are reviewable and
defines the people who are considered to be affected by the decision
and able to exercise review rights.
Clause 165 Notification of decisions and review rights
346. Clause 165 requires a person who is affected by a reviewable decision
to be informed of their rights to apply for review of a decision. For
certain decisions, this may occur when notice of the decision is
provided under clause 67. Failure to provide notice of review rights
does not affect the validity of a reviewable decision, ensuring that
administrative mistakes do not affect the validity of a decision, but
may justify some remedy such as an extension of time in which to apply
for review.
Clause 166 Internal review
347. Clause 166 establishes the right of a person affected by a reviewable
decision to apply for internal review, by the Regulator. Applications
for review must be made within 30 days of the person receiving notice,
unless the Regulator grants a longer time upon request. The Regulator
must review a decision if requested but is entitled to affirm, vary or
revoke the decision as he or she sees fit based on the review.
Clause 167 Review of decisions by Administrative Appeals Tribunal
348. Clause 167 establishes the right of a person affected by a reviewable
decision made by the Regulator, either in the first instance or on
review, to apply for review of a decision by the Administrative Appeals
Tribunal. To limit the applications to the Tribunal and give the
Regulator first opportunity to revise decisions where appropriate,
decisions not made by the Regulator in the first instance are subject
to review by the Regulator before they are eligible for review in the
Tribunal. This limitation on review in the first instance applies
despite subsection 27(1) of the Administrative Appeals Tribunal Act
1975. This is intended only to manage the number of appeals to the
Tribunal, allowing the Regulator the opportunity to revise decisions so
application to the Tribunal is not required, and is not intended to
reduce rights to appeal to the Tribunal.
Part 10-Protecting information
Division 1-Guide to this Part
Clause 168 Guide to this Part
349. Clause 168 provides a simplified outline of Part 10, which governs the
handling of protected information obtained under the Act. Protecting
information is an important obligation due to the potentially sensitive
nature of information that may be obtained under the Act.
Division 2-Protecting information
Clause 169 Offence-Disclosing commercially sensitive information
350. Clause 169 prohibits any unauthorised disclosure of information
obtained under the Act. Clause 169 establishes an offence for any
person who discloses any information obtained under the Act if there is
a risk that disclosing information might substantially prejudice
another person's commercial interests. The offence does not apply if
the disclosure is authorised under clause 170.
Clause 170 Authorised disclosures
351. Clause 170 lists the purposes for which protected information may be
disclosed. These include disclosures for the purposes of duties and
functions under the Act and other laws dealing with similar product
standards, certified public interest disclosures, disclosures
specifically authorised by another law and disclosures to assist the
development of product standards domestically or internationally.
352. The permission to share information obtained under the Act with
international bodies, for law enforcement purposes or developing
standards, has been queried by Australian businesses. Some businesses
expressed concern that information shared for these purposes could
allow competitors to identify market shares or other information that
could substantially prejudice business interests.
353. The Australian government acknowledges these concerns but considers
the permission to share information is important to align Australia's
E3 Program with international standards. The power is intended to
facilitate sharing of aggregate information, for example the number of
products supplied in Australia at various energy efficiency levels over
time, to indicate trends in efficiency and inform the consideration of
international product standards. The power also is intended to
facilitate sharing of test reports of product models, which increases
the global knowledge base of product technical specifications and will
encourage foreign agencies to reciprocate, reducing the need for
duplicate testing. Keeping these purposes and the concerns of
Australian businesses in mind at all times, the Australian Government
considers the risk that sharing information in the manner intended is
at low risk of prejudicing business interests.
354. Subclauses 170(2) and 170(3) state that instruments under section 170
are not legislative instruments. This is to assist readers understand
the status of instruments under section 170, which do not meet the
meaning of legislative instrument under section 5 of the Legislative
Instruments Act 2003, and is not intended as an exemption from that
Act.
Clause 171 Disclosing commercially sensitive information to courts and
tribunals etc
355. To provide additional protection to commercially sensitive
information, clause 171 prohibits any court or tribunal requiring a
public official to disclose information obtained under the Act that
might substantially prejudice a person's business affairs, for any
purpose other than the purposes of this Act. Subclause 179(3) clarifies
that proceedings under another Act, for example proceedings for false
and misleading information given in connection with GEMS products, can
be considered 'for the purposes' of the GEMS Act.
Part 11-Miscellaneous
Division 1-Guide to this Part
Clause 172 Guide to this Part
356. This clause provides a simplified outline of Part 11 of the Act, which
governs miscellaneous matters under this Act such as compensation,
annual reporting, regulations for the E3 Program and reviewing the
operation of the Act.
Division 2-Miscellaneous
Clause 173 Recovery of amounts
357. To ensure that delinquent fees charged under the Act may be pursued,
clause 173 provides that all fees are recoverable as debts owed to the
Commonwealth.
Clause 174 Compensation for acquisition of property
358. To ensure constitutional validity of acquisition powers, and to
protect people against unjust acquisitions under the Act, clause 174
requires the Commonwealth to pay reasonable compensation if the
operation of the Act would result in an acquisition of property
otherwise than on just terms. Where the Commonwealth and a person
disagree over the amount of the compensation, the person has the option
to take the matter to the Federal Court to determine reasonable
compensation.
Clause 175 Annual report
359. Consistent with the reporting obligations expected of a public entity,
clause 176 requires the GEMS Regulator to deliver an annual report to
Parliament each year on the operation of the Act.
Clause 176 Review of operation of this Act
360. The establishment of the E3 Program under this Act marks a significant
development in Australia's energy efficiency program. To help ensure
the systems and procedures established by this Act are achieving their
purposes, and to identify any additional improvements that could be
made, clause 176 requires the operation of the Act to be reviewed after
five years of operation (judged from the date clause 176 commences). As
a program that is expected to continue well into the future, and face
changing requirements necessary to meet the significant challenge of
reducing Australia's energy consumption and greenhouse gas emissions,
the operation of the Act also must be reviewed every ten years after
the first review.
Clause 177 Regulations
361. Clause 177 provides a general regulation making power, allowing the
Governor-General to prescribe any matter permitted, necessary or
convenient for the administration of the Act.
-----------------------
[1] Human Rights Committee, General Comment No 32 Article 14: Right to
equality before courts and tribunals and to a fair trial
[2] Human Rights Committee, General Comment 16: The right to respect of
privacy, family, home and correspondence, and protection of honour and
reputation (Art. 17)
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