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09 September 2022

Sunsetting does not apply to GEMS Determinations

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Recent investigations have revealed that Greenhouse and Energy Minimum Standards (GEMS) Determinations do not sunset.

This is due to general exemptions in the Legislation Act 2003, which exempt legislative instruments made to facilitate the operation of intergovernmental schemes from sunsetting and disallowance.

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  • Sunsetting does not apply to GEMS Determinations

    Recent investigations have revealed that Greenhouse and Energy Minimum Standards (GEMS) Determinations do not sunset.

    This is due to general exemptions in the Legislation Act 2003, which exempt legislative instruments made to facilitate the operation of intergovernmental schemes from sunsetting and disallowance.

    The Federal Register of Legislation is being updated to reflect these exemptions for GEMS Determinations.

    The Committee overseeing the E3 program will work to revoke or replace GEMS Determinations that are found not to be efficient and effective following consultation, and will consider ongoing review processes for GEMS Determinations. Further information will be communicated to industry at a later date, outlining the mechanism(s) by which GEMS Determinations will be reviewed. Removal/replacement of GEMS Determinations does not change Energy Efficiency (Energy Using Products) Regulations 2002 (the Regulations) used in New Zealand. New Zealand will work (as part of E3) to align the Regulations and Determinations where appropriate.

    The GEMS Act underpins the E3 Program in Australia, while the Energy Efficiency and Conservation Act 2000 and the Energy Efficiency (Energy Using Products) Regulation 2002 underpin the program in New Zealand. The E3 program is an initiative of the Australian Government, states and territories and the New Zealand Government.

  • Information about exemptions from sunsetting and disallowance

    Legislative instruments made under the Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act) (excluding regulations) are exempt from disallowance under subsection 44(1) of the Legislation Act 2003 (Legislation Act), and GEMS legislative instruments are exempt from sunsetting under subsection 54(1) of the Legislation Act.

    Subsections 44(1) and 54(1) of the Legislation Act relevantly provide that instruments are not subject to disallowance and sunsetting where the enabling legislation (not being the Corporations Act 2001) facilitates the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more States and Territories, and authorises the instrument to be made for the purposes of scheme.

    The GEMS Act creates a national framework for product energy efficiency in Australia (the GEMS Scheme). The GEMS Scheme is an intergovernmental scheme, given it is governed by the Inter-governmental Agreement for the GEMS Legislative Scheme, jointly funded and key instruments (including replacement GEMS determinations made under ss 23 and 35 of the GEMS Act) require consent from participating jurisdictions to the terms of the determination before they can be made (see GEMS Act, s 33). GEMS determinations are made for the purposes of this intergovernmental scheme. Therefore, GEMS legislative instruments are exempt from sunsetting and disallowance.

    These exemptions were identified in the context of the anticipated sunsetting of the first GEMS legislative instruments made under the GEMS Act (which commenced approximately ten years ago). Information recorded on the Federal Register of Legislation is being updated to clarify that GEMS legislative instruments are exempt from sunsetting under subsection 54(1) of the Legislation Act.

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