Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A person must not supply, or offer to supply, a GEMS product if:
(a) the product is in a product class covered by a GEMS determination; and
(b) the model of the product is not registered against that GEMS determination in relation to that product class.
(2) Subsection (1) does not apply if:
(a) the product is a second - hand product at the time of the supply or offer; or
(b) the model of the product is exempt under section 30 from registration in relation to that product class; or
(c) the following conditions are satisfied:
(i) the product is imported into, or the product's last process of manufacture is performed in, Australia at a time (the earlier time ) before the GEMS determination comes into force;
(ii) if there is a limited grandfathering period under the GEMS determination for the product class (see section 31)--the supply or offer occurs before the end of that period;
(iii) all transitional GEMS labelling requirements of the GEMS determination are complied with in supplying or offering to supply the product;
(iv) the product currently complies with any pre - existing GEMS determination that was in force at the earlier time;
(v) if there was no such pre - existing GEMS determination--the supply of the product (or an offer to supply the product) in a State or Territory at the earlier time would not have contravened a law of the State or Territory relating to energy use by products, or greenhouse gases resulting from operating products.
(2A) Subsection (1) does not apply to an offer to supply a GEMS product if the GEMS product:
(a) is or will be manufactured or modified on request by an identified customer to customised requirements; and
(b) is covered by a GEMS determination that is prescribed under subsection (2B); and
(c) meets any other requirements that are prescribed under subsection (2B).
(2B) The GEMS Regulator may, by legislative instrument, prescribe:
(a) GEMS determinations for the purposes of paragraph (2A)(b); or
(b) requirements for the purposes of paragraph (2A)(c).
Strict liability offence--category A products
(3) A person commits an offence of strict liability if the person contravenes subsection (1) and the product is a category A product for the product class.
Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code .
Note 2: See subsection (7) (evidential burden for matters in subsection (2)).
Strict liability offence--category B products
(4) A person commits an offence of strict liability if the person contravenes subsection (1) and the product is a category B product for the product class.
Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code .
Note 2: See subsection (7) (evidential burden for matters in subsection (2)).
Civil penalty provision--category A products
(5) A person is liable to a civil penalty if the person contravenes subsection (1) and the product is a category A product for the product class.
Civil penalty: 60 penalty units.
Note 1: It is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision (see section 94 of the Regulatory Powers Act).
Note 2: See subsection (8) (evidential burden for matters in subsection (2)) and subsection (9) (evidential burden for matters in subsection (2A)).
Civil penalty provision--category B products
(6) A person is liable to a civil penalty if the person contravenes subsection (1) and the product is a category B product for the product class.
Civil penalty: 120 penalty units.
Note 1: It is generally not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision (see section 94 of the Regulatory Powers Act).
Note 2: See subsection (8) (evidential burden for matters in subsection (2)) and subsection (9) (evidential burden for matters in subsection (2A)).
Evidential burden for matters in subsection (2)
(7) In a prosecution for an offence against subsection (3) or (4), the prosecution bears an evidential burden in relation to the matters in paragraphs (2)(b) and (c) , despite subsection 13.3(3) of the Criminal Code .
Note: However, a defendant still bears an evidential burden in relation to a matter in paragraph (2)(a), because subsection 13.3(3) of the Criminal Code still applies in relation to that paragraph.
(8) In proceedings for a civil penalty order under the Regulatory Powers Act for a contravention of subsection (5) or (6):
(a) a person who wishes to rely on paragraph (2)(a) bears an evidential burden in relation to a matter in that paragraph; and
(b) the person applying for the order bears an evidential burden in relation to the matters in paragraphs (2)(b) and (c) .
Evidential burden for matters in subsection (2A)
(9) In proceedings for a civil penalty order under the Regulatory Powers Act for a contravention of subsection (5) or (6), a person who wishes to rely on subsection (2A) bears an evidential burden in relation to a matter in subsection (2A).
Note: In a prosecution for an offence against subsection (3) or (4), a defendant bears an evidential burden in relation to a matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code ).