Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) A person must not use a GEMS product for a commercial purpose if:
(a) the GEMS product is in a product class covered by a GEMS determination; and
(b) the model of the GEMS product is not registered against that GEMS determination in relation to that product class; and
(c) that is the person's first use of the GEMS product.
(2) Subsection (1) does not apply if:
(a) the product was supplied to the person in Australia; or
(b) the use of the product is exempt under section 20; or
(c) the model of the product is exempt under section 30 from registration in relation to that product class; or
(d) 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 use of the product occurs before the end of that period;
(iii) the product currently complies with any pre - existing GEMS determination that was in force at the earlier time;
(iv) if there was no such pre - existing GEMS determination--the use of the product for a commercial purpose 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.
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)).
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)).
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)(c) and (d) , 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) or (b), because subsection 13.3(3) of the Criminal Code still applies in relation to those paragraphs.
(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) or (b) 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)(c) and (d) .