Greenhouse and Energy Minimum Standards (Air Conditioners above 65kW) Determination) 2022

The Determination operationalises three interlocking regulatory concepts: product classes and capacity thresholds, minimum energy performance standards (MEPS) adopted from an earlier Determination, and testing and labelling obligations referenced back to the up to 65kW Determination with stated modifications.

Product class and capacity threshold

• The key metric is R, defined in Schedule 1 as the rated standard cooling full capacity or, for heating‑only products, the rated standard heating full capacity (Schedule 1(2)). R is rounded to the nearest 0.1kW for class assignment (Schedule 1(3)). The Determination only applies where R is greater than 65kW (s 9; Schedule 1 table). Product classes are numbered 24 to 27 to continue the numbering established by the up to 65kW Determination (s 9 note and Schedule 1 note).

MEPS as a cross‑applied standard

• Instead of setting out fresh MEPS mechanics, the Determination validates compliance by requiring products to meet the applicable provisions of the up to 65kW Determination (subsections 22(2)-22(3) for non‑variable capacity and 23(2)-23(3) for variable capacity, as relevant), but to treat the "relevant MEPS level" references in those subsections as the amounts in Schedule 1 to this Determination (s 12). All four classes in Schedule 1 have an MEPS value of 2.90.

Testing and standard versions

• Testing methods are brought in by reference to Schedule 2 of the up to 65kW Determination but modified in Schedule 2 of this Determination. The instrument also fixes the applicable versions of referenced standards and documents to those that existed on 25 March 2019, thereby removing later updates from automatic effect (s 5(2)). An example in the Determination illustrates that referenced clauses in AS/NZS standards must be read against the versions that existed at the stated date (s 5 note).

Families of models and timing

• For the purposes of section 28 of the Act (families of models), this Determination sets criteria for when models may be treated as a single family for registration, including shared energy characteristics (electrical phase, average true power factor, rated power inputs and capacities), same physical characteristics relevant to compliance, a limit of 10 models per family, and a requirement that the models be included on a single test report prepared prior to the registration application under section 41 of the Act (s 6(1)-(3), s 6(2)(d)).

Label and advertising

• Labelling requirements are applied by reference to the up to 65kW Determination and the Determination explicitly notes that labelling obligations apply only to retail supplies and retail offers and not to wholesale transactions (s 14 note). Section 15 makes section 34 of the up to 65kW Determination applicable concerning advertising references to SEER ratings.

Exclusions and scope limitations

• The Determination lists exclusions including close control, liquid‑chilling packages, evaporative coolers, water‑to‑air systems, dehumidifiers, certain mobile application units and specialised high temperature industrial units, and units that condition outside air and then deliver it to the conditioned space (s 10).

Regulatory architecture

• The instrument is declaratory and modular: it authorises the GEMS Regulator’s existing scheme to treat these larger capacity products as category A products (s 7) and imports much of the operational detail from the 2019 Determination while adding testing method flexibility and administrative rules specific to >65kW products (ss 12-13; Schedule 2). It therefore functions as a capacity‑band extension of the GEMS framework.

The Determination imposes obligations and creates compliance exposure for persons in the supply chain of air‑to‑air systems whose rated standard cooling full capacity or heating full capacity exceeds 65kW. The instrument itself frames coverage in product and regulatory terms rather than using the words importer, manufacturer or supplier, but the practical effect is directed at entities who place covered products on the Australian market.

Directly affected parties

• Manufacturers and importers of air‑to‑air unitary air conditioners, single‑split systems, single‑split outdoor units sold separately, and multi‑split outdoor units with rated capacity above 65kW are brought into scope because the Determination makes numbered product classes for those kinds of equipment and sets the MEPS for them (s 9; Schedule 1 table). The requirements will apply irrespective of the sectorial use of the equipment so long as the product fits the description (s 9 note 3).

Retailers and sellers

• GEMS labelling requirements apply in relation to retail supplies and offers of retail supply only (s 14 note). That means parties who offer the product for retail sale in Australia must ensure the applicable labelling and advertising representations are correct. Section 15 makes the advertising/SEER requirement in the up to 65kW Determination applicable to the covered products.

Test laboratories and consultants

• Testing requirements are imported and modified by reference. Parties using test laboratories will affect compliance timing and cost because families of models must be included on a single test report prepared before registration applications (s 6(2)(d)). The Determination’s explicit permissible test methods in Schedule 2 include indoor enthalpy and calorimeter room methods and a shortened calorimeter method for certain heating tests, which influences which laboratories are technically able to furnish acceptable reports (Schedule 2(b)).

Registrants and the GEMS Regulator

• The Determination presumes registration of models under the Act (s 6(2)(d) referencing s 41 of the Act). It requires family declarations to the GEMS Regulator (s 6(1)(a)). Thus the GEMS Regulator is the administrative decision‑maker for family declarations and registration, and registrants (who will typically be manufacturers or Australian responsible suppliers) must comply with the formalities the Act prescribes.

Excluded groups

• Certain categories of equipment are expressly excluded from coverage (s 10). Operators or suppliers of close control air‑conditioning, liquid‑chilling packages, evaporative coolers and several niche items (dehumidifiers, water‑to‑air systems, specialised mobile or high temperature units) are not captured by this Determination, though Note 1 to s 10 clarifies that some of these excluded products may instead be subject to other GEMS determinations.

Who bears compliance costs

• The Determination does not monetise costs, but the text identifies who must act. Testing before registration (s 6(2)(d)), labelling for retail offers (s 14 note), and conforming product families and test reports (s 6) indicate that costs will fall on entities responsible for placing products on the market. Consumers may bear some pass‑through via price, because meeting MEPS and testing/labelling obligations typically requires either product redesign, additional certification costs or both. The source, however, does not quantify these effects.

The Determination imposes substantive duties by reference to parts of the up to 65kW Determination and sets procedural requirements specific to >65kW models. Rights in this instrument are largely administrative: the right to seek registration and to declare a family of models, subject to the conditions the Determination sets.

Duties to meet MEPS

• A product covered by the Determination must comply with the applicable MEPS provisions in the Air Conditioners up to 65kW Determination (s 12). For non‑variable capacity products, the Determination requires compliance with subsection 22(2) for cooling and 22(3) for heating where applicable; for variable capacity products, compliance is required with subsection 23(2) for cooling and 23(3) for heating; in each case treating the relevant MEPS level as the amount specified for the product class in Schedule 1 (s 12). For reverse cycle units both heating and cooling requirements must be satisfied (s 12 note).

Testing and evidentiary duties

• Testing requirements are incorporated by reference (s 13) to Schedule 2 of the up to 65kW Determination, but subject to the modifications in Schedule 2 of this Determination. Schedule 2 explicitly allows the use of alternate test methods, including indoor enthalpy and calorimeter room test methods, and a shortened calorimeter room test for certain heating tests (Schedule 2(b)(i)-(iii)). Parties must ensure test reports conform to those methods as modified.

Registration and family declaration duties

• For a family of models to be accepted under section 28 of the Act, the family must be declared to the GEMS Regulator and satisfy the prescribed conditions including shared energy performance characteristics and a single test report prepared prior to the registration application under section 41 of the Act (s 6(1)-(2)). A family must not contain more than 10 models (s 6(3)).

Labelling and advertising duties

• The labelling regime applies to retail supplies and offers (s 14 note). Section 15 applies section 34 of the up to 65kW Determination to these products in relation to advertising references to SEER ratings. The Determination also contains a transitional mechanism: a revoked GEMS labelling requirement will be treated as complied with if a replacement determination’s transitional requirement so provides (s 16).

Duty to use specified versions of standards

• Parties must give effect to standards and referenced documents as they existed on 25 March 2019 (s 5(2)). If definitions conflict, the order of interpretation gives priority to the Act, then this Determination, then the referenced standards (s 5(1)).

Rights and administrative pathway

• The Determination preserves registrant rights to seek registration under the Act (it refers to section 41 applications) and allows for families to be declared to the Regulator subject to the conditions in s 6. It also recognises transitional and replacement determinations via s 16, creating a predictable pathway for regulatory updates.

Absent or delegated matters

• The Determination does not itself create penalty amounts, permit or deny specific exemptions, or specify administrative fees. Those operational and enforcement rights and duties remain within the Act and the administrative instruments of the GEMS Regulator. The instrument does, however, constrain certain administrative practices, for example by requiring the single test report prior to registration (s 6(2)(d)), and by fixing standard versions (s 5(2)) which limits later interpretive discretion.

This Determination is a statutory instrument made under section 23 of the Greenhouse and Energy Minimum Standards Act 2012 (s 3). It prescribes obligations and references compliance mechanisms but does not itself set out penalty amounts or the full enforcement regime within its text. Enforcement and penalties flow from the Act rather than this Determination.

Delegation to the Act

• The Determination repeatedly imports the Act’s framework: it specifies product classes for the purposes of subsections 23(1) and (2) of the Act (s 8), treats the products as category A for section 29 of the Act (s 7), and references registration under section 41 for families of models (s 6(2)(d)). Those cross‑references indicate that compliance, monitoring, offences and penalties are implemented under the Act’s general enforcement provisions, not in the Determination itself.

What the Determination supplies and what it leaves to the Act

• The Determination specifies substantive and procedural obligations: MEPS levels (s 12 and Schedule 1), testing methods (s 13 and Schedule 2), labelling and advertising requirements for retail offers (Part 4; ss 14-17) and family registration conditions (s 6). It does not specify the sanctions for non‑compliance, the processes for notice and review, or the pecuniary penalties that may attach. Those enforcement mechanisms, including potential civil penalties, infringement notices or criminal offences, are a matter of the Act and any regulations made under it.

Practical enforcement levers implied by the Determination

• The obligations that are readily subject to administrative enforcement include registration (models must be registered under the Act, and families declared to the Regulator, s 6), compliance with testing and test report content (s 6(2)(d), ss 13, 17 and Schedule 2), and retail labelling and advertising requirements (Part 4, s 14 note and s 15). These are discrete acts of supply and information that regulatory compliance checks or market surveillance can readily inspect.

Limits on inference

• The instrument’s text does not identify civil or criminal penalties, infringement notice amounts, or enforcement processes. Any advice on specific penalty amounts, enforcement timelines, inspection powers or dispute resolution mechanisms must be drawn from the Act and associated regulations rather than from this Determination. The Determination’s role is to define the regulated activities and technical standards to which the GEMS enforcement apparatus applies.

This Determination is expressly constructed to operate as part of the broader GEMS regulatory framework created by the Greenhouse and Energy Minimum Standards Act 2012 and to interact with the earlier Air Conditioners up to 65kW Determination 2019. Its legal effect depends on that interaction; several sections make operation contingent on or derivative of other instruments.

Primary statutory anchor

• The Determination is made under the authority of s 23 of the Act (s 3). It therefore sits within the Act’s regulatory architecture, which governs registration, labelling, enforcement and the definition of product categories such as category A products (s 7). The Determination does not repeal or supersede the Act; it defines classes and requirements for the application of the Act.

Cross‑reference to the Air Conditioners up to 65kW Determination

• The instrument imports definitions and provisions from the up to 65kW Determination. Section 4(1) states that expressions used in the Determination have the same meaning as in the up to 65kW Determination, subject to the section. Several specific definitions in the up to 65kW Determination (for example, the definition of “tested” (section 10) and “energy label” (section 26)) are taken to be references to this Determination for the purposes of the up to 65kW Determination (s 4(3)). Section 12 requires products to comply with specified subsections of the up to 65kW Determination as if the MEPS references were the amounts specified in Schedule 1 to this Determination.

Applicable versions of standards

• The Determination fixes the applicable versions of standards and referenced documents to those that existed on 25 March 2019 (s 5(2)). The order of interpretive priority for inconsistent definitions is the Act, then this Determination, then any referenced standard (s 5(1)). That creates a specific interaction: later updates to standards do not alter technical obligations under this Determination unless the Determination is revised.

Other GEMS determinations

• The Determination excludes certain product types from its coverage but notes that some excluded products may be subject to other GEMS determinations (s 10 note 1). Therefore compliance obligations for a particular product may fall under a different GEMS instrument rather than under this Determination.

Registration and administrative provisions under the Act

• The Determination references section 28 (families) and section 41 (registration) of the Act (s 6(1)-(2)(d)). That means model registration, family declaration and the consequences of registration must be handled in accordance with the Act. Administrative powers, such as requests for information, audit powers, and offence provisions, exist in the Act and operate against the duties the Determination creates.

Labelling and consumer information laws

• The Determination applies GEMS labelling requirements in relation to retail supplies (s 14 note) and makes section 34 of the up to 65kW Determination applicable to advertising references to SEER ratings (s 15). These obligations intersect with general consumer protection regimes responsible for false or misleading representations (for example, Australian consumer law), although the Determination does not itself reference those laws. A regulator enforcing labelling under the Act could employ both GEMS and broader consumer law tools, but any combined enforcement action would derive from the Act and other statutes, not from this Determination.

Regulatory change mechanism

• Section 16 contemplates that a revoked GEMS labelling requirement will be treated as complied with if a replacement determination has a transitional requirement stating the same. This provides an interface for staged regulatory change where a new instrument supplants this Determination; the legal continuity depends on the replacement determination’s transitional clause.

This Determination itself contains a short internal history and references to prior instruments. The instrument is dated 17 February 2022 and commences on 1 October 2022 (s 2 and front matter). The text indicates it was made by the Assistant Minister to the Minister for Industry, Energy and Emissions Reduction and is labelled the Greenhouse and Energy Minimum Standards (Air Conditioners above 65kW) Determination 2022 (s 1 and front matter).

Relationship to prior Determination

• The Determination is explicitly designed as an extension and companion to the Greenhouse and Energy Minimum Standards (Air Conditioners up to 65kW) Determination 2019. Throughout the instrument it incorporates provisions, definitions and testing regimes from the 2019 Determination by reference and supplies modifications for applying those provisions to larger capacity products (see ss 4, 5, 12, and Schedule 2). Schedule 1’s numbering of product classes continues from the 2019 Determination’s product class numbering (Schedule 1 note and s 9 note).

No amendments listed in the text

• The Determination document itself does not list subsequent amending instruments or prior amendments to the 2022 instrument. It contains a clause (s 16) that establishes how labelling requirements interact with any eventual replacement determinations, but it does not show an amendment history beyond its initial making date, signature by Tim Wilson and commencement date.

Fixed standard version and practical effect

• The choice to fix applicable versions of referenced standards to those that existed at 25 March 2019 (s 5(2)) is a durable constraint. Unless the Determination is amended, subsequent updates to standards will not change obligations under this Determination. That decision is recorded in the text and is part of the instrument’s operating history from the date of commencement.

Revocation and replacement mechanisms

• The Determination contemplates replacement in s 16: it provides that a revoked GEMS labelling requirement will be taken to be complied with if a replacement determination introduced in accordance with paragraph 35(1)(b) of the Act contains a transitional requirement that deems the revoked requirement complied with. This records a mechanism for replacing labelling requirements, but does not itself indicate any replacement yet made.

Interpretive note

• The Determination’s own Schedule 2 modifies Schedule 2 of the up to 65kW Determination for the purposes of this instrument (Schedule 2(1)). Those modifications are therefore part of the instrument’s amendment‑style content even though they do not amend the 2019 Determination outside the context of this instrument. There is no other recorded amendment in the text.

The Determination text contains no references to litigation, judicial decisions, appeals, or tribunal outcomes. It is a stand‑alone statutory instrument and does not enumerate any case law, disputation history, or prior adjudications affecting its provisions. The document focuses on technical definitions, product classes, MEPS values, testing and labelling requirements and procedural rules for families of models.

Implication for legal research

• Because the Determination does not cite or summarise any litigation or precedent, any lawyer or compliance officer seeking to understand how courts or tribunals have interpreted similar obligations must look beyond this text to the GEMS Act, prior determinations, and any relevant administrative decisions or judgments that reference those instruments. The Determination itself provides no litigation record.

Practical consequence

• For present purposes, the absence of litigation history in the instrument means there are no recorded judicial readings of these specific capacity‑band provisions in the source document. Questions about interpretation disputes (for example, the definition of R or the proper scope of a “family of models”) will need to be resolved by reference to administrative guidance from the GEMS Regulator or, if contested, by subsequent case law under the Act.

Caveat on future disputes

• The Determination creates a set of obligations that could become the subject of enforcement or dispute. The text does not indicate whether there were pre‑existing contested interpretations of the provisions it borrows from the 2019 Determination. Any litigation history that emerges will be external to this instrument and would need to be traced in the public record of the courts, tribunals or administrative review bodies.

This Determination contains several specific drafting choices and cross‑references that create traps for practitioners who assume automatic harmonisation with later standards or who overlook procedural sequencing. The following are concrete operational "gotchas" drawn from the text.

Fixed standard versions

• The Determination fixes the applicable versions of any referenced standard or document to those that existed at 25 March 2019 (s 5(2)). That means later updates to AS/NZS or IEC standards do not change what tests or tolerances applied under this Determination unless the Determination is itself amended. A laboratory or manufacturer using an updated standard without confirming equivalence risks producing a test report the Regulator may not accept.

Single test report timing and family registration

• For models to be treated as members of the same family the Determination requires inclusion on a single test report which was prepared prior to the application for registration made under section 41 of the Act (s 6(2)(d)). That sequencing matters. A manufacturer cannot avoid testing costs by registering models first and then relying on later grouped testing; the test report must pre‑exist the registration application.

Family size cap

• A family must not contain more than 10 models (s 6(3)). Entities that design product ranges or variants intending to rely on family aggregation must ensure they do not exceed this cap. The cap can increase testing volume if a manufacturer previously treated larger clusters as a single family.

The rounding rule for capacity

• R is rounded to the nearest 0.1kW for class determination (Schedule 1(3)). For a borderline product specification, a small rounding difference could move a model into or out of coverage. Practitioners should check whether a model’s rated standard capacity is over 65kW once rounded.

Uniform MEPS across classes

• Schedule 1 sets the same MEPS value (2.90) for all four product classes (Schedule 1 table). This uniform number means class selection will not alter the required MEPS; however, other class definitions (for example the difference between single‑split outdoor units sold separately and multi‑split outdoor units) will determine whether a product falls into scope at all (s 9 and Schedule 1).

Labelling limited to retail

• GEMS labelling requirements apply only to retail supplies and offers of retail supply and do not apply to wholesale supplies (s 14 note). Actors in the wholesale chain can treat labelling obligations differently from retailers, but the parties who transition a product from wholesale to retail must ensure compliance before retail offers are made.

Testing method options and shortened tests

• Schedule 2(b) allows indoor enthalpy, calorimeter room test, and for some heating tests a shortened calorimeter room test spanning three complete defrost cycles (Schedule 2(b)(i)-(iii)). The shortened test may appear to reduce testing cost and time, but it may also be less familiar to some test houses and could affect perceived robustness of the evidence. Ensure the chosen test method is acceptable to the GEMS Regulator under the modified Schedule 2.

Exclusions may not mean no regulation

• Products excluded by s 10 are not covered by this Determination, but note 1 to s 10 states that some excluded products are subject to other GEMS determinations. Do not assume an exclusion from this Determination equates to no regulatory obligations.

Cross‑applied provisions

• The Determination repeatedly applies sections of the up to 65kW Determination “as if” their references were the amounts in Schedule 1 (s 12). Practitioners must read the referenced subsections in the up to 65kW Determination to understand the substantive rules being imported; the 2022 instrument does not reproduce those clauses in full.

No penalty detail in the instrument

• The Determination does not set out enforcement sanctions (see the Penalties section above). Compliance risk should be assessed by reference to the Act and its penalty regime rather than this instrument.

Transitional/Replacement ambiguity

• Section 16 creates a path for replacement determinations to define transitional compliance. Unless a replacement determination exists, however, the default obligations of this Determination apply. Do not assume the Regulator will apply transitional leniency unless a replacement determination expressly provides it.

Compliance requires a sequence of technical testing, registration, family declaration and, where retail offers are made, correct labelling and advertising. The Determination imports many obligations from the up to 65kW Determination, so compliance is achieved by reading both instruments together and following the modified testing rules in Schedule 2.

Step 1 , classify the product correctly

• Determine the applicable product class by calculating R, the rated standard cooling full capacity (or for heating‑only products the rated heating full capacity) and rounding to the nearest 0.1kW (Schedule 1(2)-(3)). Confirm that R > 65kW; if R ≤ 65kW the product is covered by the 2019 Determination instead (s 9). Check exclusions in s 10 to confirm the product is not excluded.

Step 2 , identify applicable MEPS and capacity rules

• For non‑variable capacity products comply with the up to 65kW Determination’s subsection 22(2) for cooling and 22(3) for heating where applicable. For variable capacity products comply with 23(2) and 23(3) for cooling and heating respectively (s 12). In each case treat the “relevant MEPS level” as the Schedule 1 amount for the product class (s 12). For reverse cycle products ensure both heating and cooling MEPS are satisfied (s 12 note).

Step 3 , testing to the correct methods and versions

• Use testing methods as set out in Schedule 2 to the up to 65kW Determination, subject to the modifications in Schedule 2 of this Determination (s 13). Schedule 2 to this Determination expressly allows indoor enthalpy and calorimeter room test methods and a shortened calorimeter room test for H2/H3 heating (Schedule 2(b)(i)-(iii)). Ensure the test is conducted to the versions of standards and referenced documents that existed on 25 March 2019 (s 5(2)). If a test laboratory uses a later standard, obtain confirmation that the method is equivalent to the 25 March 2019 version or repeat testing to the correct version.

Step 4 , assemble the single test report for families and pre‑registration sequencing

• If you intend to rely on a family of models under section 28 of the Act, ensure the models are in the same product class, have the same energy performance characteristics and relevant physical characteristics (s 6(2)(a)-(c)). Prepare a single test report that includes all models in the family and ensure it is completed prior to filing the registration application under section 41 of the Act (s 6(2)(d)). Do not include more than 10 models in a family (s 6(3)).

Step 5 , registration and family declaration

• Declare the family to the GEMS Regulator as required under s 6(1)(a). File the registration application in accordance with section 41 of the Act, including the single pre‑existing test report. Ensure all technical data, test reports and family declarations meet the Regulator’s documentary requirements.

Step 6 , labelling and advertising for retail offers

• For any retail supply or offer of retail supply, comply with GEMS labelling requirements as applied by Part 4 of this Determination (s 14). Section 15 makes the up to 65kW Determination’s provision on advertising references to SEER ratings applicable, so ensure advertising accurately states SEER ratings per the referenced provision (s 15). Remember that labelling obligations do not apply to wholesale supplies (s 14 note).

Step 7 , satisfy other product performance rules

• Section 19 makes section 40 of the up to 65kW Determination (average true power factor) applicable to products covered by this Determination. Confirm the product meets the average true power factor requirements as set in that section and ensure testing evidence conforms with the modified Schedule 2 (ss 19-20).

Step 8 , document control and versioning

• Keep clear records demonstrating the use of the 25 March 2019 versions of standards and of the specific test method used (Schedule 2(b)). Retain copies of the single test report, family declaration, registration application and any communications with the GEMS Regulator. Audit trails matter because the Determination requires the single test report to exist before registration.

Step 9 , prepare for audits and market surveillance

• Because the Determination’s obligations map into the enforcement regime of the Act, keep ready documentary proof of compliance, including all test reports and labelling/advertising materials used for retail offers. Be alert to the fact that the Determination does not itself set penalties; the Act provides enforcement tools that may be applied to non‑compliance.

Step 10 , monitor regulatory changes and replacements

• Section 16 provides for replacement determinations and transitional labelling treatment. Monitor publications from the GEMS Regulator in case a replacement determination or an amendment modifies the MEPS, test methods or labelling transitional rules. Also monitor whether any later versions of referenced standards are formally adopted by amendment to this Determination; until then, the 25 March 2019 versions govern compliance.

Following these steps, and reading the up to 65kW Determination in parallel to this instrument to capture the full content of the referenced subsections, will be necessary to achieve practical compliance. If there is uncertainty on the admissibility of a particular test method, correspondence with the GEMS Regulator prior to registration reduces administrative risk.