{"id":"C2017A00104","name":"Product Emissions Standards Act 2017","slug":"product-emissions-standards-act-2017","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"104 of 2017","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":8597,"registerId":"commonwealth-C2017A00104-current","compilationNumber":null,"startDate":"2026-03-30","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"## Part 1—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n This Act is the Product Emissions Standards Act 2017.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The day after this Act receives the Royal Assent.

15 September 2017

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Objects of this Act","content":"#### 3 Objects of this Act\n\n The objects of this Act are:\n (a) to regulate emissions from certain products by setting emissions standards; and\n (b) in doing so, to achieve either or both of the following:\n (i) contribute to improving air quality in Australia in order to deliver associated health and environmental benefits;\n (ii) assist in giving effect to Australia’s obligations under one or more of the Climate Change Conventions.\n\n> Note: For Climate Change Conventions, see section 7.","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Simplified outline of this Act","content":"#### 4 Simplified outline of this Act\n\nThis Act creates a framework for regulating emissions from products.\n\nThe Act provides for an emissions‑controlled product to be certified. To be certified, the product must meet an emissions standard.\n\nA person who imports or supplies an emissions‑controlled product that is not certified will commit an offence. There are also offences related to false or incorrect marking of products as certified. Civil penalties are included as alternatives to offences.\n\nProducts dealt with in breach of the Act are forfeited to the Commonwealth.\n\nThe rules may exempt persons or products from the operation of the Act.\n\nRecord‑keeping requirements and regulatory powers (mostly drawn from the Regulatory Powers Act) are included to assist in enforcing the Act.\n\nThe operation of the Act is to be reviewed periodically.","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Extension to external Territories","content":"#### 5 Extension to external Territories\n\n (1) This Act extends to every external Territory.\n (2) The Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.","sortOrder":5},{"sectionNumber":"6","sectionType":"section","heading":"Act binds the Crown","content":"#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be:\n (a) prosecuted for an offence; or\n (b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or\n (c) given an infringement notice under Part 5 of the Regulatory Powers Act.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.","sortOrder":6},{"sectionNumber":"7","sectionType":"section","heading":"Definitions","content":"#### 7 Definitions\n\n (1) In this Act:\n\n> Australia includes the external Territories.\n\n> certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.\n\n> civil penalty provision has the same meaning as in the Regulatory Powers Act.\n\n> Climate Change Conventions means:\n\n (a) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992; and\n (b) the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997; and\n (c) the Paris Agreement, done at Paris on 12 December 2015;\n as amended and in force for Australia from time to time.\n\n> Note: The Convention, the Protocol and the Agreement are in Australian Treaty Series 1994 No. 2 (\\[1994\\] ATS 2), 2008 No. 2 (\\[2008\\] ATS 2) and 2016 No. 24 (\\[2016\\] ATS 24), respectively. In 2017 they could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)\n\n> emissions‑controlled product means a product that is prescribed by the rules for the purposes of section 9.\n\n> emissions standard means a standard dealing with matters relating to emissions from products.\n\n> engage in conduct includes omitting to perform an act.\n\n> evidential material has the same meaning as in the Regulatory Powers Act.\n\n> forfeiture notice has the meaning given by subsection 34(2).\n\n> inspector means a person appointed under section 41.\n\n> manufacture, for a product prescribed for the purposes of the definition of product, means produce by any method.\n\n> mark includes label.\n\n> person assisting an authorised person has the same meaning as in the Regulatory Powers Act.\n\n> product means a thing (including a substance or mixture of substances) that is:\n\n (a) manufactured; or\n (b) prescribed by the rules for the purposes of this definition.\n\n> regulatory authority includes a regulatory authority of, or located in, a foreign country.\n\n> Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.\n\n> reporting period, for an emissions‑controlled product, means a period prescribed by the rules.\n\n> rules means rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> supply, in relation to a product, has the meaning given by subsection (2).\n\n> this Act includes instruments made under this Act.\n\n (2) A supply of a product means a supply in the course of trading or commercial activities.\n (3) For the purposes of subsection (2), supply includes:\n (a) an offer to supply (including making available, exposing, displaying or advertising the product); and\n (b) a supply (including a resupply) by way of sale, exchange, gift, lease, loan, hire or hire‑purchase; and\n (c) a supply as part of the supply of another thing.\n (4) For the purposes of subsection (2), it is irrelevant whether the supply is:\n (a) for consideration; or\n (b) a wholesale or retail supply.","sortOrder":7},{"sectionNumber":"Part 2","sectionType":"part","heading":"Emissions‑controlled products","content":"## Part 2—Emissions‑controlled products","sortOrder":8},{"sectionNumber":"8","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 8 Simplified outline of this Part\n\nThe rules may prescribe a product as an emissions‑controlled product.\n\nThe rules may provide for an emissions‑controlled product to be certified. A minimum requirement for certification is that the product meets an emissions standard.\n\nThe rules may exempt persons or products from the operation of the Act.","sortOrder":9},{"sectionNumber":"9","sectionType":"section","heading":"Emissions‑controlled products","content":"#### 9 Emissions‑controlled products\n\n The rules may prescribe a product as an emissions‑controlled product.","sortOrder":10},{"sectionNumber":"10","sectionType":"section","heading":"Certification","content":"#### 10 Certification\n\n (1) The rules may provide for an emissions‑controlled product to be certified for the purposes of this Act.\n Product must meet emissions standard\n (2) However, the rules must not provide for a product to be certified for the purposes of this Act unless:\n (a) the Secretary is satisfied that the product complies with an emissions standard set out in the rules for the product; or\n (b) the product is certified:\n (i) by a regulatory authority specified in the rules for the product; and\n (ii) as meeting an emissions standard specified in the rules for the product.\n\n> Note: For regulatory authority, see section 7.\n\n Other requirements\n (3) The rules may prescribe other requirements for, or in relation to, certifying a product for the purposes of this Act.\n (4) Without limiting subsection (3), the requirements may include requirements relating to the following:\n (a) applications for certification;\n (b) processes and criteria for certification, including testing;\n (c) processes for suspending or revoking certification;\n (d) the use of marks to indicate certification.\n\n> Note: The rules may provide for charging fees and for review of decisions: see subsection 51(2).","sortOrder":11},{"sectionNumber":"11","sectionType":"section","heading":"Exemptions","content":"#### 11 Exemptions\n\n (1) The rules may provide for the exemption of:\n (a) a specified emissions‑controlled product from one or more provisions of this Act; or\n (b) a specified emissions‑controlled product or person from one or more provisions of this Act in the circumstances set out in the rules.\n\n> Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (2) Without limiting paragraph (1)(b), the circumstances may include that a person has:\n (a) applied for and been granted an exemption; or\n (b) given the Secretary specified notice or information; or\n (c) taken other action required by the rules.\n (3) The rules may provide processes for, and other requirements in relation to, obtaining, varying, suspending or revoking exemptions.\n\n> Note: The rules may provide for charging fees: see subsection 51(2).\n\n (4) The rules may provide for the Secretary to make decisions in relation to exemptions, including deciding whether to grant an exemption.\n\n> Note: The rules may provide for review of decisions: see subsection 51(2).","sortOrder":12},{"sectionNumber":"Part 3","sectionType":"part","heading":"Enforcing product emissions standards","content":"An Act to improve air quality by regulating emissions from certain products, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Product Emissions Standards Act 2017.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The day after this Act receives the Royal Assent.

15 September 2017

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Objects of this Act\n\n The objects of this Act are:\n (a) to regulate emissions from certain products by setting emissions standards; and\n (b) in doing so, to achieve either or both of the following:\n (i) contribute to improving air quality in Australia in order to deliver associated health and environmental benefits;\n (ii) assist in giving effect to Australia’s obligations under one or more of the Climate Change Conventions.\n\n> Note: For Climate Change Conventions, see section 7.\n\n#### 4 Simplified outline of this Act\n\nThis Act creates a framework for regulating emissions from products.\n\nThe Act provides for an emissions‑controlled product to be certified. To be certified, the product must meet an emissions standard.\n\nA person who imports or supplies an emissions‑controlled product that is not certified will commit an offence. There are also offences related to false or incorrect marking of products as certified. Civil penalties are included as alternatives to offences.\n\nProducts dealt with in breach of the Act are forfeited to the Commonwealth.\n\nThe rules may exempt persons or products from the operation of the Act.\n\nRecord‑keeping requirements and regulatory powers (mostly drawn from the Regulatory Powers Act) are included to assist in enforcing the Act.\n\nThe operation of the Act is to be reviewed periodically.\n\n#### 5 Extension to external Territories\n\n (1) This Act extends to every external Territory.\n (2) The Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be:\n (a) prosecuted for an offence; or\n (b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or\n (c) given an infringement notice under Part 5 of the Regulatory Powers Act.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.\n\n#### 7 Definitions\n\n (1) In this Act:\n\n> Australia includes the external Territories.\n\n> certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.\n\n> civil penalty provision has the same meaning as in the Regulatory Powers Act.\n\n> Climate Change Conventions means:\n\n (a) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992; and\n (b) the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997; and\n (c) the Paris Agreement, done at Paris on 12 December 2015;\n as amended and in force for Australia from time to time.\n\n> Note: The Convention, the Protocol and the Agreement are in Australian Treaty Series 1994 No. 2 (\\[1994\\] ATS 2), 2008 No. 2 (\\[2008\\] ATS 2) and 2016 No. 24 (\\[2016\\] ATS 24), respectively. In 2017 they could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)\n\n> emissions‑controlled product means a product that is prescribed by the rules for the purposes of section 9.\n\n> emissions standard means a standard dealing with matters relating to emissions from products.\n\n> engage in conduct includes omitting to perform an act.\n\n> evidential material has the same meaning as in the Regulatory Powers Act.\n\n> forfeiture notice has the meaning given by subsection 34(2).\n\n> inspector means a person appointed under section 41.\n\n> manufacture, for a product prescribed for the purposes of the definition of product, means produce by any method.\n\n> mark includes label.\n\n> person assisting an authorised person has the same meaning as in the Regulatory Powers Act.\n\n> product means a thing (including a substance or mixture of substances) that is:\n\n (a) manufactured; or\n (b) prescribed by the rules for the purposes of this definition.\n\n> regulatory authority includes a regulatory authority of, or located in, a foreign country.\n\n> Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.\n\n> reporting period, for an emissions‑controlled product, means a period prescribed by the rules.\n\n> rules means rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> supply, in relation to a product, has the meaning given by subsection (2).\n\n> this Act includes instruments made under this Act.\n\n (2) A supply of a product means a supply in the course of trading or commercial activities.\n (3) For the purposes of subsection (2), supply includes:\n (a) an offer to supply (including making available, exposing, displaying or advertising the product); and\n (b) a supply (including a resupply) by way of sale, exchange, gift, lease, loan, hire or hire‑purchase; and\n (c) a supply as part of the supply of another thing.\n (4) For the purposes of subsection (2), it is irrelevant whether the supply is:\n (a) for consideration; or\n (b) a wholesale or retail supply.\n\n## Part 2—Emissions‑controlled products\n\n#### 8 Simplified outline of this Part\n\nThe rules may prescribe a product as an emissions‑controlled product.\n\nThe rules may provide for an emissions‑controlled product to be certified. A minimum requirement for certification is that the product meets an emissions standard.\n\nThe rules may exempt persons or products from the operation of the Act.\n\n#### 9 Emissions‑controlled products\n\n The rules may prescribe a product as an emissions‑controlled product.\n\n#### 10 Certification\n\n (1) The rules may provide for an emissions‑controlled product to be certified for the purposes of this Act.\n Product must meet emissions standard\n (2) However, the rules must not provide for a product to be certified for the purposes of this Act unless:\n (a) the Secretary is satisfied that the product complies with an emissions standard set out in the rules for the product; or\n (b) the product is certified:\n (i) by a regulatory authority specified in the rules for the product; and\n (ii) as meeting an emissions standard specified in the rules for the product.\n\n> Note: For regulatory authority, see section 7.\n\n Other requirements\n (3) The rules may prescribe other requirements for, or in relation to, certifying a product for the purposes of this Act.\n (4) Without limiting subsection (3), the requirements may include requirements relating to the following:\n (a) applications for certification;\n (b) processes and criteria for certification, including testing;\n (c) processes for suspending or revoking certification;\n (d) the use of marks to indicate certification.\n\n> Note: The rules may provide for charging fees and for review of decisions: see subsection 51(2).\n\n#### 11 Exemptions\n\n (1) The rules may provide for the exemption of:\n (a) a specified emissions‑controlled product from one or more provisions of this Act; or\n (b) a specified emissions‑controlled product or person from one or more provisions of this Act in the circumstances set out in the rules.\n\n> Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (2) Without limiting paragraph (1)(b), the circumstances may include that a person has:\n (a) applied for and been granted an exemption; or\n (b) given the Secretary specified notice or information; or\n (c) taken other action required by the rules.\n (3) The rules may provide processes for, and other requirements in relation to, obtaining, varying, suspending or revoking exemptions.\n\n> Note: The rules may provide for charging fees: see subsection 51(2).\n\n (4) The rules may provide for the Secretary to make decisions in relation to exemptions, including deciding whether to grant an exemption.\n\n> Note: The rules may provide for review of decisions: see subsection 51(2).\n\n## Part 3—Enforcing product emissions standards\n\n### Division 1—Simplified outline of this Part\n\n#### 12 Simplified outline of this Part\n\nOffences and civil penalties apply:\n\n(a) if an emissions‑controlled product is imported or supplied and the product is not certified, or marked as required; and\n\n(b) for marking a product that is not certified, and for marking a product incorrectly.\n\n### Division 2—Importing emissions‑controlled products\n\n#### 13 Import of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 14 Import of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 3—Supplying emissions‑controlled products\n\n#### 15 Supply of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 16 Supply of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 4—Marking emissions‑controlled products\n\n#### 17 Marking product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules require the product to be marked if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the product is not so certified.\n (2) For the purposes of paragraph (1)(f), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 18 Incorrect marking of product\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules impose requirements for marking the product if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the mark is not in accordance with the requirements in the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n## Part 4—Record keeping\n\n#### 19 Simplified outline of this Part\n\nImporters and suppliers of emissions‑controlled products may be required to keep records and to give the Secretary the recorded information.\n\nReports may also be required on the supply of emissions‑controlled products manufactured in Australia.\n\n#### 20 Rules may provide record‑keeping requirements\n\n (1) The rules may require a person who imports or supplies emissions‑controlled products to make and keep records in relation to the imports or supplies.\n (2) A person contravenes this subsection if:\n (a) the rules require the person to make or keep a record; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (2).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (2).\n\nCivil penalty: 80 penalty units.\n\n#### 21 Secretary may require recorded information\n\n (1) The Secretary may, by notice in writing, require a person to give the Secretary information that the person is required by the rules to keep in a record, if the Secretary reasonably suspects that:\n (a) a provision of this Act has been contravened or is being contravened; and\n (b) the information is relevant to the suspected contravention.\n (2) The notice must:\n (a) identify the information that must be given to the Secretary; and\n (b) state the day the information must be given by, which must be a reasonable period after the notice is given to the person.\n (3) The Secretary may, on application by the person, change the day the information must be given by to a later day.\n (4) A person contravenes this subsection if:\n (a) the person is required to give information under this section; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (5) A person commits an offence of strict liability if the person contravenes subsection (4).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (6) A person is liable to a civil penalty if the person contravenes subsection (4).\n\nCivil penalty: 80 penalty units.\n\n#### 22 Reporting on supply of products manufactured in Australia\n\n (1) The rules may prescribe a reporting period for an emissions‑controlled product.\n (2) If, during a reporting period for an emissions‑controlled product that is manufactured in Australia, a person makes the first supply of the product, the person must give to the Secretary a report containing the information prescribed by the rules relating to such products that the person has so supplied during the reporting period.\n (3) The report must be given to the Secretary no later than 60 days after the end of the reporting period.\n (4) A reference to supply in subsection (2) does not include an offer to supply.\n\n> Note: For the usual definition of supply in this Act, see subsections 7(2) to (4).\n\n (5) A person contravenes this subsection if:\n (a) the person is required by subsection (2) to give a report to the Secretary for a reporting period for an emissions‑controlled product; and\n (b) the person does not give the Secretary the report in the period ending 60 days after the end of the reporting period.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 120 penalty units.\n\n## Part 5—Regulatory powers\n\n#### 23 Simplified outline of this Part\n\nThis Part applies the Regulatory Powers Act to the product emissions standards framework.\n\n#### 24 Monitoring powers\n\n (1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:\n (a) a provision of this Act; or\n (b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.\n\n (2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.\n\n (3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to offences and civil penalty provisions of this Act.\n\n#### 25 Investigation powers\n\n (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:\n (a) an offence provision of this Act; or\n (b) a civil penalty provision of this Act; or\n (c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.\n\n (2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to offences and civil penalty provisions of this Act.\n\n#### 26 Civil penalty provisions\n\n (1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.\n\n> Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\n (2) For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised applicant; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 27 Infringement notices\n\n (1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:\n (a) an offence provision of this Act that is an offence of strict liability;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.\n\n (2) For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an infringement officer; and\n (b) the Secretary is the relevant chief executive.\n\n#### 28 Enforceable undertakings\n\n (1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.\n\n (2) For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 29 Injunctions\n\n (1) The following provisions are enforceable under Part 7 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.\n\n (2) For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n## Part 6—Forfeiture of emissions‑controlled products\n\n### Division 1—Simplified outline of this Part\n\n#### 30 Simplified outline of this Part\n\nAn emissions‑controlled product is forfeited when a provision of Part 3 (relating to the import, supply or marking of the product) is contravened in relation to the product.\n\nAn emissions‑controlled product may also be forfeited when it has been seized as part of an investigation and an inspector reasonably suspects a provision in Part 3 has been contravened. A court may order the return of a product so seized, or that compensation be paid.\n\n### Division 2—Forfeiture following conviction or making of civil penalty order\n\n#### 31 Product forfeited to Commonwealth\n\n (1) This section applies if a person is convicted of an offence, or ordered to pay a civil penalty, for contravening a provision of Part 3.\n (2) The product concerned is forfeited to the Commonwealth.\n\n#### 32 Power to seize forfeited product\n\n (1) An inspector may seize a product that is forfeited under section 31.\n (2) Without limiting subsection (1), the product may be seized by attaching to the product, or to the container in which the product is held, a notice in writing signed by the inspector that:\n (a) identifies the product; and\n (b) states that the product has been seized under this section; and\n (c) specifies the reason for the seizure.\n (3) An inspector must give a copy of the notice as soon as practicable to the owner of the product or the person from whom the product was seized.\n\n#### 33 Person must not interfere with seized product\n\n (1) A person commits an offence if:\n (a) the person engages in conduct; and\n (b) the conduct causes an emissions‑controlled product to be moved, altered or interfered with; and\n (c) the product is the subject of a notice under subsection 32(2).\n\nPenalty: Imprisonment for 6 months.\n\n (2) Subsection (1) does not apply if the person engages in the conduct in accordance with a direction given to the person by the Minister.\n\n> Note: The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.\n\n (3) A person commits an offence if:\n (a) the person is given a notice under subsection 32(3); and\n (b) the person does not take all reasonable precautions to prevent the product being moved, altered or interfered with except in accordance with a direction given by the Minister.\n\nPenalty: Imprisonment for 6 months.\n\n### Division 3—Forfeiture of seized products\n\n#### 34 Forfeiture notices\n\n (1) This section applies if:\n (a) an inspector seizes an emissions‑controlled product under Part 3 of the Regulatory Powers Act as it applies in relation to this Act; and\n (b) the inspector reasonably suspects that a provision of Part 3 of this Act was contravened in relation to the product.\n (2) The inspector may, within 7 days after the product is seized, give a written notice (the forfeiture notice) to the owner of the product.\n (3) If the owner of the product cannot be identified after reasonable inquiry, the inspector may give the forfeiture notice to the person from whom the product was seized.\n (4) The notice must:\n (a) identify the product; and\n (b) state that the product has been seized; and\n (c) specify the reason for the seizure; and\n (d) state that the product will be forfeited to the Commonwealth unless a court, on application under section 35, orders the product to be returned.\n\n#### 35 Claims for return of seized product\n\n (1) This section applies if a forfeiture notice is given in relation to an emissions‑controlled product.\n (2) The owner of the product or the person from whom the product was seized may apply to one of the following for an order that the product be returned:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) The application must be made within 60 days after the forfeiture notice is given.\n (4) The court must order that the product be returned if:\n (a) an application for the order was made in accordance with this section; and\n (b) the court is satisfied that no provision of Part 3 was contravened in relation to the product.\n (5) If the court orders that the product be returned, the Commonwealth must take reasonable steps to return the product to the applicant.\n (6) Subsection (5) does not apply if:\n (a) proceedings for which the product may provide evidence were instituted before the order was made, and have not been completed (including any appeal); or\n (b) returning the product could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or\n (c) an inspector is otherwise authorised (by a law or an order of a court) to retain, destroy or dispose of the product.\n\n#### 36 Forfeiture of seized product to the Commonwealth\n\n A product in relation to which a forfeiture notice is given is forfeited to the Commonwealth if:\n (a) no application has been made under section 35 for an order that the product be returned; or\n (b) such an application has been made, and the court decides not to so order.\n\n#### 37 Right of compensation in certain circumstances\n\n (1) The person who owned an emissions‑controlled product forfeited to the Commonwealth under section 36 may apply to one of the following for compensation:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (2) The court must order that the Commonwealth pay compensation to the applicant if the court is satisfied that:\n (a) the applicant owned the product immediately before it was forfeited; and\n (b) either:\n (i) Part 3 of the Regulatory Powers Act, as it applies in relation to this Act, was not complied with in relation to the seizure of the product; or\n (ii) if the product was forfeited under paragraph 36(a)—no provision of Part 3 of this Act was contravened in relation to the product.\n (3) The amount of compensation must be the market value of the product at the time the product was forfeited under section 36.\n\n### Division 4—General provisions\n\n#### 38 Forfeited products become property of Commonwealth\n\n Products forfeited to the Commonwealth under section 31 or 36 become the property of the Commonwealth.\n\n#### 39 Disposal of forfeited products\n\n (1) Products forfeited under section 31 or 36 must be dealt with and disposed of in accordance with the directions of the Minister.\n (2) The forfeited products must not be sold.\n\n## Part 7—Miscellaneous\n\n#### 40 Simplified outline of this Part\n\nThis Part deals with the appointment of inspectors, the publication and disclosure of information, and the conduct of audits to ensure compliance with this Act.\n\nIt also provides for the delegation of powers, requires periodic reviews of the operation of the Act, and enables the Minister to make rules.\n\n#### 41 Inspectors\n\n (1) The Secretary may, in writing, appoint an APS employee as an inspector for the purposes of this Act.\n (2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.\n (3) An inspector must, in performing functions or exercising powers as an inspector, comply with any directions of the Secretary.\n (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.\n\n#### 42 Publication of information relating to certifications and exemptions\n\n (1) The Secretary may publish information relating to an emissions‑controlled product that is certified for the purposes of this Act, including but not limited to:\n (a) information that identifies the product and the manufacturer of the product; and\n (b) information about emissions from the product; and\n (c) information about the certification.\n (2) The Secretary may publish information relating to an exemption of an emissions‑controlled product or a person from a provision of this Act, including but not limited to:\n (a) circumstances in which the exemption applies; and\n (b) reasons for the exemption; and\n (c) the person who applied for the exemption.\n\n#### 43 Disclosure of information\n\n (1) The Secretary may disclose information obtained under this Act to:\n (a) the Australian Border Force (within the meaning of the Australian Border Force Act 2015); or\n (b) an agency, body or person prescribed by the rules;\n if the Secretary reasonably believes that the information will enable or assist the agency, body or person to exercise its powers, or perform its functions or duties.\n\n> Note: Subsection 51(6) has requirements relating to rules made for the purposes of paragraph (b).\n\n (2) This section does not limit any other powers the Secretary has to disclose information to a person.\n\n#### 44 Compliance audits\n\n (1) This section applies if the Minister:\n (a) reasonably suspects that a person has engaged or is engaging in conduct that constitutes:\n (i) an offence against this Act; or\n (ii) a contravention of a civil penalty provision; and\n (b) is satisfied that it would be in the public interest to give the person a notice under this section.\n (2) The Minister may, by written notice given to the person, require the person:\n (a) to undertake, or arrange for another person to undertake, an audit of whichever of the following is specified in the notice:\n (i) the person’s compliance with this Act;\n (ii) one or more specified aspects of the person’s compliance with this Act; and\n (b) to give the Minister a written report setting out the results of the audit.\n (3) The notice must specify:\n (a) if the notice requires the person to arrange another person to undertake the audit—requirements relating to the qualifications and independence of the other person; and\n (b) the matters to be covered by the audit; and\n (c) the period within which the audit must be undertaken; and\n (d) the form and content of the report; and\n (e) the period within which the report must be given to the Minister.\n (4) A notice under subsection (2) is not a legislative instrument.\n (5) A person contravenes this subsection if the person is subject to a requirement under subsection (2) and the person fails to comply with the requirement.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 80 penalty units.\n\n#### 45 Delegation by the Minister\n\n (1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act (except section 51) to:\n (a) the Secretary; or\n (b) an SES employee, or acting SES employee, in the Department.\n\n> Note 1: Section 51 gives the Minister power to make rules.\n\n> Note 2: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Minister.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 46 Delegation by the Secretary\n\n (1) The Secretary may, by writing, delegate all or any of his or her powers or functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act, to:\n (a) an SES employee or acting SES employee in the Department; or\n (b) an APS employee who occupies, or performs the duties of, a position not below Executive Level 2 or equivalent in the Department.\n\n> Note: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 47 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken as soon as possible after the seventh anniversary of its commencement and afterwards at intervals of no longer than 10 years.\n (2) The person undertaking a review must give the Minister a written report of the review.\n (3) The Minister must cause a copy of the report of a review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.\n\n#### 48 Physical elements of offences\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.\n (2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.\n\n> Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.\n\n#### 49 Contravening offence and civil penalty provisions\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.\n (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.\n\n#### 50 Alternative constitutional bases\n\n (1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.\n (2) To avoid doubt, no subsection of this section limits the operation of any other subsection.\n Import\n (3) This Act has the effect it would have if each reference to import were expressly confined to import in the course of trade or commerce.\n Supply\n (4) This Act has the effect it would have if each reference to supply were expressly confined to supply in the course of trade or commerce:\n (a) between Australia and places outside Australia; or\n (b) among the States; or\n (c) within a Territory, between a State and a Territory or between 2 Territories.\n Corporations power\n (5) This Act has the effect it would have if each reference to a person were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) Without limiting subsection (1), the rules may provide for:\n (a) charging fees for services provided in the performance of functions under this Act; and\n (b) the review of decisions made under this Act.\n (3) Rules setting out an emissions standard for the purposes of paragraph 10(2)(a) may apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time if the instrument or writing is produced by one or more of the following:\n (a) the International Electrotechnical Commission;\n (b) the International Organization for Standardization;\n (c) the United Nations Economic Commission for Europe;\n (d) any other organisation prescribed by the rules.\n (4) Rules specifying an emissions standard for the purposes of subparagraph 10(2)(b)(ii) may specify a standard as in force or existing from time to time.\n (5) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.\n (6) Before making rules for the purposes of paragraph 43(1)(b), the Minister must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of that consultation.\n (7) The rules may provide for the collection and recovery of charges imposed by the Product Emissions Standards (Customs) Charges Act 2017 and the Product Emissions Standards (Excise) Charges Act 2017.","sortOrder":13},{"sectionNumber":"Division 1","sectionType":"division","heading":"Simplified outline of this Part","content":"An Act to improve air quality by regulating emissions from certain products, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Product Emissions Standards Act 2017.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The day after this Act receives the Royal Assent.

15 September 2017

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Objects of this Act\n\n The objects of this Act are:\n (a) to regulate emissions from certain products by setting emissions standards; and\n (b) in doing so, to achieve either or both of the following:\n (i) contribute to improving air quality in Australia in order to deliver associated health and environmental benefits;\n (ii) assist in giving effect to Australia’s obligations under one or more of the Climate Change Conventions.\n\n> Note: For Climate Change Conventions, see section 7.\n\n#### 4 Simplified outline of this Act\n\nThis Act creates a framework for regulating emissions from products.\n\nThe Act provides for an emissions‑controlled product to be certified. To be certified, the product must meet an emissions standard.\n\nA person who imports or supplies an emissions‑controlled product that is not certified will commit an offence. There are also offences related to false or incorrect marking of products as certified. Civil penalties are included as alternatives to offences.\n\nProducts dealt with in breach of the Act are forfeited to the Commonwealth.\n\nThe rules may exempt persons or products from the operation of the Act.\n\nRecord‑keeping requirements and regulatory powers (mostly drawn from the Regulatory Powers Act) are included to assist in enforcing the Act.\n\nThe operation of the Act is to be reviewed periodically.\n\n#### 5 Extension to external Territories\n\n (1) This Act extends to every external Territory.\n (2) The Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be:\n (a) prosecuted for an offence; or\n (b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or\n (c) given an infringement notice under Part 5 of the Regulatory Powers Act.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.\n\n#### 7 Definitions\n\n (1) In this Act:\n\n> Australia includes the external Territories.\n\n> certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.\n\n> civil penalty provision has the same meaning as in the Regulatory Powers Act.\n\n> Climate Change Conventions means:\n\n (a) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992; and\n (b) the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997; and\n (c) the Paris Agreement, done at Paris on 12 December 2015;\n as amended and in force for Australia from time to time.\n\n> Note: The Convention, the Protocol and the Agreement are in Australian Treaty Series 1994 No. 2 (\\[1994\\] ATS 2), 2008 No. 2 (\\[2008\\] ATS 2) and 2016 No. 24 (\\[2016\\] ATS 24), respectively. In 2017 they could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)\n\n> emissions‑controlled product means a product that is prescribed by the rules for the purposes of section 9.\n\n> emissions standard means a standard dealing with matters relating to emissions from products.\n\n> engage in conduct includes omitting to perform an act.\n\n> evidential material has the same meaning as in the Regulatory Powers Act.\n\n> forfeiture notice has the meaning given by subsection 34(2).\n\n> inspector means a person appointed under section 41.\n\n> manufacture, for a product prescribed for the purposes of the definition of product, means produce by any method.\n\n> mark includes label.\n\n> person assisting an authorised person has the same meaning as in the Regulatory Powers Act.\n\n> product means a thing (including a substance or mixture of substances) that is:\n\n (a) manufactured; or\n (b) prescribed by the rules for the purposes of this definition.\n\n> regulatory authority includes a regulatory authority of, or located in, a foreign country.\n\n> Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.\n\n> reporting period, for an emissions‑controlled product, means a period prescribed by the rules.\n\n> rules means rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> supply, in relation to a product, has the meaning given by subsection (2).\n\n> this Act includes instruments made under this Act.\n\n (2) A supply of a product means a supply in the course of trading or commercial activities.\n (3) For the purposes of subsection (2), supply includes:\n (a) an offer to supply (including making available, exposing, displaying or advertising the product); and\n (b) a supply (including a resupply) by way of sale, exchange, gift, lease, loan, hire or hire‑purchase; and\n (c) a supply as part of the supply of another thing.\n (4) For the purposes of subsection (2), it is irrelevant whether the supply is:\n (a) for consideration; or\n (b) a wholesale or retail supply.\n\n## Part 2—Emissions‑controlled products\n\n#### 8 Simplified outline of this Part\n\nThe rules may prescribe a product as an emissions‑controlled product.\n\nThe rules may provide for an emissions‑controlled product to be certified. A minimum requirement for certification is that the product meets an emissions standard.\n\nThe rules may exempt persons or products from the operation of the Act.\n\n#### 9 Emissions‑controlled products\n\n The rules may prescribe a product as an emissions‑controlled product.\n\n#### 10 Certification\n\n (1) The rules may provide for an emissions‑controlled product to be certified for the purposes of this Act.\n Product must meet emissions standard\n (2) However, the rules must not provide for a product to be certified for the purposes of this Act unless:\n (a) the Secretary is satisfied that the product complies with an emissions standard set out in the rules for the product; or\n (b) the product is certified:\n (i) by a regulatory authority specified in the rules for the product; and\n (ii) as meeting an emissions standard specified in the rules for the product.\n\n> Note: For regulatory authority, see section 7.\n\n Other requirements\n (3) The rules may prescribe other requirements for, or in relation to, certifying a product for the purposes of this Act.\n (4) Without limiting subsection (3), the requirements may include requirements relating to the following:\n (a) applications for certification;\n (b) processes and criteria for certification, including testing;\n (c) processes for suspending or revoking certification;\n (d) the use of marks to indicate certification.\n\n> Note: The rules may provide for charging fees and for review of decisions: see subsection 51(2).\n\n#### 11 Exemptions\n\n (1) The rules may provide for the exemption of:\n (a) a specified emissions‑controlled product from one or more provisions of this Act; or\n (b) a specified emissions‑controlled product or person from one or more provisions of this Act in the circumstances set out in the rules.\n\n> Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (2) Without limiting paragraph (1)(b), the circumstances may include that a person has:\n (a) applied for and been granted an exemption; or\n (b) given the Secretary specified notice or information; or\n (c) taken other action required by the rules.\n (3) The rules may provide processes for, and other requirements in relation to, obtaining, varying, suspending or revoking exemptions.\n\n> Note: The rules may provide for charging fees: see subsection 51(2).\n\n (4) The rules may provide for the Secretary to make decisions in relation to exemptions, including deciding whether to grant an exemption.\n\n> Note: The rules may provide for review of decisions: see subsection 51(2).\n\n## Part 3—Enforcing product emissions standards\n\n### Division 1—Simplified outline of this Part\n\n#### 12 Simplified outline of this Part\n\nOffences and civil penalties apply:\n\n(a) if an emissions‑controlled product is imported or supplied and the product is not certified, or marked as required; and\n\n(b) for marking a product that is not certified, and for marking a product incorrectly.\n\n### Division 2—Importing emissions‑controlled products\n\n#### 13 Import of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 14 Import of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 3—Supplying emissions‑controlled products\n\n#### 15 Supply of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 16 Supply of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 4—Marking emissions‑controlled products\n\n#### 17 Marking product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules require the product to be marked if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the product is not so certified.\n (2) For the purposes of paragraph (1)(f), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 18 Incorrect marking of product\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules impose requirements for marking the product if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the mark is not in accordance with the requirements in the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n## Part 4—Record keeping\n\n#### 19 Simplified outline of this Part\n\nImporters and suppliers of emissions‑controlled products may be required to keep records and to give the Secretary the recorded information.\n\nReports may also be required on the supply of emissions‑controlled products manufactured in Australia.\n\n#### 20 Rules may provide record‑keeping requirements\n\n (1) The rules may require a person who imports or supplies emissions‑controlled products to make and keep records in relation to the imports or supplies.\n (2) A person contravenes this subsection if:\n (a) the rules require the person to make or keep a record; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (2).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (2).\n\nCivil penalty: 80 penalty units.\n\n#### 21 Secretary may require recorded information\n\n (1) The Secretary may, by notice in writing, require a person to give the Secretary information that the person is required by the rules to keep in a record, if the Secretary reasonably suspects that:\n (a) a provision of this Act has been contravened or is being contravened; and\n (b) the information is relevant to the suspected contravention.\n (2) The notice must:\n (a) identify the information that must be given to the Secretary; and\n (b) state the day the information must be given by, which must be a reasonable period after the notice is given to the person.\n (3) The Secretary may, on application by the person, change the day the information must be given by to a later day.\n (4) A person contravenes this subsection if:\n (a) the person is required to give information under this section; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (5) A person commits an offence of strict liability if the person contravenes subsection (4).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (6) A person is liable to a civil penalty if the person contravenes subsection (4).\n\nCivil penalty: 80 penalty units.\n\n#### 22 Reporting on supply of products manufactured in Australia\n\n (1) The rules may prescribe a reporting period for an emissions‑controlled product.\n (2) If, during a reporting period for an emissions‑controlled product that is manufactured in Australia, a person makes the first supply of the product, the person must give to the Secretary a report containing the information prescribed by the rules relating to such products that the person has so supplied during the reporting period.\n (3) The report must be given to the Secretary no later than 60 days after the end of the reporting period.\n (4) A reference to supply in subsection (2) does not include an offer to supply.\n\n> Note: For the usual definition of supply in this Act, see subsections 7(2) to (4).\n\n (5) A person contravenes this subsection if:\n (a) the person is required by subsection (2) to give a report to the Secretary for a reporting period for an emissions‑controlled product; and\n (b) the person does not give the Secretary the report in the period ending 60 days after the end of the reporting period.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 120 penalty units.\n\n## Part 5—Regulatory powers\n\n#### 23 Simplified outline of this Part\n\nThis Part applies the Regulatory Powers Act to the product emissions standards framework.\n\n#### 24 Monitoring powers\n\n (1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:\n (a) a provision of this Act; or\n (b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.\n\n (2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.\n\n (3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to offences and civil penalty provisions of this Act.\n\n#### 25 Investigation powers\n\n (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:\n (a) an offence provision of this Act; or\n (b) a civil penalty provision of this Act; or\n (c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.\n\n (2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to offences and civil penalty provisions of this Act.\n\n#### 26 Civil penalty provisions\n\n (1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.\n\n> Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\n (2) For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised applicant; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 27 Infringement notices\n\n (1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:\n (a) an offence provision of this Act that is an offence of strict liability;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.\n\n (2) For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an infringement officer; and\n (b) the Secretary is the relevant chief executive.\n\n#### 28 Enforceable undertakings\n\n (1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.\n\n (2) For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 29 Injunctions\n\n (1) The following provisions are enforceable under Part 7 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.\n\n (2) For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n## Part 6—Forfeiture of emissions‑controlled products\n\n### Division 1—Simplified outline of this Part\n\n#### 30 Simplified outline of this Part\n\nAn emissions‑controlled product is forfeited when a provision of Part 3 (relating to the import, supply or marking of the product) is contravened in relation to the product.\n\nAn emissions‑controlled product may also be forfeited when it has been seized as part of an investigation and an inspector reasonably suspects a provision in Part 3 has been contravened. A court may order the return of a product so seized, or that compensation be paid.\n\n### Division 2—Forfeiture following conviction or making of civil penalty order\n\n#### 31 Product forfeited to Commonwealth\n\n (1) This section applies if a person is convicted of an offence, or ordered to pay a civil penalty, for contravening a provision of Part 3.\n (2) The product concerned is forfeited to the Commonwealth.\n\n#### 32 Power to seize forfeited product\n\n (1) An inspector may seize a product that is forfeited under section 31.\n (2) Without limiting subsection (1), the product may be seized by attaching to the product, or to the container in which the product is held, a notice in writing signed by the inspector that:\n (a) identifies the product; and\n (b) states that the product has been seized under this section; and\n (c) specifies the reason for the seizure.\n (3) An inspector must give a copy of the notice as soon as practicable to the owner of the product or the person from whom the product was seized.\n\n#### 33 Person must not interfere with seized product\n\n (1) A person commits an offence if:\n (a) the person engages in conduct; and\n (b) the conduct causes an emissions‑controlled product to be moved, altered or interfered with; and\n (c) the product is the subject of a notice under subsection 32(2).\n\nPenalty: Imprisonment for 6 months.\n\n (2) Subsection (1) does not apply if the person engages in the conduct in accordance with a direction given to the person by the Minister.\n\n> Note: The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.\n\n (3) A person commits an offence if:\n (a) the person is given a notice under subsection 32(3); and\n (b) the person does not take all reasonable precautions to prevent the product being moved, altered or interfered with except in accordance with a direction given by the Minister.\n\nPenalty: Imprisonment for 6 months.\n\n### Division 3—Forfeiture of seized products\n\n#### 34 Forfeiture notices\n\n (1) This section applies if:\n (a) an inspector seizes an emissions‑controlled product under Part 3 of the Regulatory Powers Act as it applies in relation to this Act; and\n (b) the inspector reasonably suspects that a provision of Part 3 of this Act was contravened in relation to the product.\n (2) The inspector may, within 7 days after the product is seized, give a written notice (the forfeiture notice) to the owner of the product.\n (3) If the owner of the product cannot be identified after reasonable inquiry, the inspector may give the forfeiture notice to the person from whom the product was seized.\n (4) The notice must:\n (a) identify the product; and\n (b) state that the product has been seized; and\n (c) specify the reason for the seizure; and\n (d) state that the product will be forfeited to the Commonwealth unless a court, on application under section 35, orders the product to be returned.\n\n#### 35 Claims for return of seized product\n\n (1) This section applies if a forfeiture notice is given in relation to an emissions‑controlled product.\n (2) The owner of the product or the person from whom the product was seized may apply to one of the following for an order that the product be returned:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) The application must be made within 60 days after the forfeiture notice is given.\n (4) The court must order that the product be returned if:\n (a) an application for the order was made in accordance with this section; and\n (b) the court is satisfied that no provision of Part 3 was contravened in relation to the product.\n (5) If the court orders that the product be returned, the Commonwealth must take reasonable steps to return the product to the applicant.\n (6) Subsection (5) does not apply if:\n (a) proceedings for which the product may provide evidence were instituted before the order was made, and have not been completed (including any appeal); or\n (b) returning the product could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or\n (c) an inspector is otherwise authorised (by a law or an order of a court) to retain, destroy or dispose of the product.\n\n#### 36 Forfeiture of seized product to the Commonwealth\n\n A product in relation to which a forfeiture notice is given is forfeited to the Commonwealth if:\n (a) no application has been made under section 35 for an order that the product be returned; or\n (b) such an application has been made, and the court decides not to so order.\n\n#### 37 Right of compensation in certain circumstances\n\n (1) The person who owned an emissions‑controlled product forfeited to the Commonwealth under section 36 may apply to one of the following for compensation:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (2) The court must order that the Commonwealth pay compensation to the applicant if the court is satisfied that:\n (a) the applicant owned the product immediately before it was forfeited; and\n (b) either:\n (i) Part 3 of the Regulatory Powers Act, as it applies in relation to this Act, was not complied with in relation to the seizure of the product; or\n (ii) if the product was forfeited under paragraph 36(a)—no provision of Part 3 of this Act was contravened in relation to the product.\n (3) The amount of compensation must be the market value of the product at the time the product was forfeited under section 36.\n\n### Division 4—General provisions\n\n#### 38 Forfeited products become property of Commonwealth\n\n Products forfeited to the Commonwealth under section 31 or 36 become the property of the Commonwealth.\n\n#### 39 Disposal of forfeited products\n\n (1) Products forfeited under section 31 or 36 must be dealt with and disposed of in accordance with the directions of the Minister.\n (2) The forfeited products must not be sold.\n\n## Part 7—Miscellaneous\n\n#### 40 Simplified outline of this Part\n\nThis Part deals with the appointment of inspectors, the publication and disclosure of information, and the conduct of audits to ensure compliance with this Act.\n\nIt also provides for the delegation of powers, requires periodic reviews of the operation of the Act, and enables the Minister to make rules.\n\n#### 41 Inspectors\n\n (1) The Secretary may, in writing, appoint an APS employee as an inspector for the purposes of this Act.\n (2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.\n (3) An inspector must, in performing functions or exercising powers as an inspector, comply with any directions of the Secretary.\n (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.\n\n#### 42 Publication of information relating to certifications and exemptions\n\n (1) The Secretary may publish information relating to an emissions‑controlled product that is certified for the purposes of this Act, including but not limited to:\n (a) information that identifies the product and the manufacturer of the product; and\n (b) information about emissions from the product; and\n (c) information about the certification.\n (2) The Secretary may publish information relating to an exemption of an emissions‑controlled product or a person from a provision of this Act, including but not limited to:\n (a) circumstances in which the exemption applies; and\n (b) reasons for the exemption; and\n (c) the person who applied for the exemption.\n\n#### 43 Disclosure of information\n\n (1) The Secretary may disclose information obtained under this Act to:\n (a) the Australian Border Force (within the meaning of the Australian Border Force Act 2015); or\n (b) an agency, body or person prescribed by the rules;\n if the Secretary reasonably believes that the information will enable or assist the agency, body or person to exercise its powers, or perform its functions or duties.\n\n> Note: Subsection 51(6) has requirements relating to rules made for the purposes of paragraph (b).\n\n (2) This section does not limit any other powers the Secretary has to disclose information to a person.\n\n#### 44 Compliance audits\n\n (1) This section applies if the Minister:\n (a) reasonably suspects that a person has engaged or is engaging in conduct that constitutes:\n (i) an offence against this Act; or\n (ii) a contravention of a civil penalty provision; and\n (b) is satisfied that it would be in the public interest to give the person a notice under this section.\n (2) The Minister may, by written notice given to the person, require the person:\n (a) to undertake, or arrange for another person to undertake, an audit of whichever of the following is specified in the notice:\n (i) the person’s compliance with this Act;\n (ii) one or more specified aspects of the person’s compliance with this Act; and\n (b) to give the Minister a written report setting out the results of the audit.\n (3) The notice must specify:\n (a) if the notice requires the person to arrange another person to undertake the audit—requirements relating to the qualifications and independence of the other person; and\n (b) the matters to be covered by the audit; and\n (c) the period within which the audit must be undertaken; and\n (d) the form and content of the report; and\n (e) the period within which the report must be given to the Minister.\n (4) A notice under subsection (2) is not a legislative instrument.\n (5) A person contravenes this subsection if the person is subject to a requirement under subsection (2) and the person fails to comply with the requirement.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 80 penalty units.\n\n#### 45 Delegation by the Minister\n\n (1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act (except section 51) to:\n (a) the Secretary; or\n (b) an SES employee, or acting SES employee, in the Department.\n\n> Note 1: Section 51 gives the Minister power to make rules.\n\n> Note 2: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Minister.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 46 Delegation by the Secretary\n\n (1) The Secretary may, by writing, delegate all or any of his or her powers or functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act, to:\n (a) an SES employee or acting SES employee in the Department; or\n (b) an APS employee who occupies, or performs the duties of, a position not below Executive Level 2 or equivalent in the Department.\n\n> Note: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 47 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken as soon as possible after the seventh anniversary of its commencement and afterwards at intervals of no longer than 10 years.\n (2) The person undertaking a review must give the Minister a written report of the review.\n (3) The Minister must cause a copy of the report of a review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.\n\n#### 48 Physical elements of offences\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.\n (2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.\n\n> Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.\n\n#### 49 Contravening offence and civil penalty provisions\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.\n (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.\n\n#### 50 Alternative constitutional bases\n\n (1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.\n (2) To avoid doubt, no subsection of this section limits the operation of any other subsection.\n Import\n (3) This Act has the effect it would have if each reference to import were expressly confined to import in the course of trade or commerce.\n Supply\n (4) This Act has the effect it would have if each reference to supply were expressly confined to supply in the course of trade or commerce:\n (a) between Australia and places outside Australia; or\n (b) among the States; or\n (c) within a Territory, between a State and a Territory or between 2 Territories.\n Corporations power\n (5) This Act has the effect it would have if each reference to a person were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) Without limiting subsection (1), the rules may provide for:\n (a) charging fees for services provided in the performance of functions under this Act; and\n (b) the review of decisions made under this Act.\n (3) Rules setting out an emissions standard for the purposes of paragraph 10(2)(a) may apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time if the instrument or writing is produced by one or more of the following:\n (a) the International Electrotechnical Commission;\n (b) the International Organization for Standardization;\n (c) the United Nations Economic Commission for Europe;\n (d) any other organisation prescribed by the rules.\n (4) Rules specifying an emissions standard for the purposes of subparagraph 10(2)(b)(ii) may specify a standard as in force or existing from time to time.\n (5) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.\n (6) Before making rules for the purposes of paragraph 43(1)(b), the Minister must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of that consultation.\n (7) The rules may provide for the collection and recovery of charges imposed by the Product Emissions Standards (Customs) Charges Act 2017 and the Product Emissions Standards (Excise) Charges Act 2017.","sortOrder":14},{"sectionNumber":"12","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 12 Simplified outline of this Part\n\nOffences and civil penalties apply:\n\n(a) if an emissions‑controlled product is imported or supplied and the product is not certified, or marked as required; and\n\n(b) for marking a product that is not certified, and for marking a product incorrectly.","sortOrder":15},{"sectionNumber":"Division 2","sectionType":"division","heading":"Importing emissions‑controlled products","content":"An Act to improve air quality by regulating emissions from certain products, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Product Emissions Standards Act 2017.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The day after this Act receives the Royal Assent.

15 September 2017

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Objects of this Act\n\n The objects of this Act are:\n (a) to regulate emissions from certain products by setting emissions standards; and\n (b) in doing so, to achieve either or both of the following:\n (i) contribute to improving air quality in Australia in order to deliver associated health and environmental benefits;\n (ii) assist in giving effect to Australia’s obligations under one or more of the Climate Change Conventions.\n\n> Note: For Climate Change Conventions, see section 7.\n\n#### 4 Simplified outline of this Act\n\nThis Act creates a framework for regulating emissions from products.\n\nThe Act provides for an emissions‑controlled product to be certified. To be certified, the product must meet an emissions standard.\n\nA person who imports or supplies an emissions‑controlled product that is not certified will commit an offence. There are also offences related to false or incorrect marking of products as certified. Civil penalties are included as alternatives to offences.\n\nProducts dealt with in breach of the Act are forfeited to the Commonwealth.\n\nThe rules may exempt persons or products from the operation of the Act.\n\nRecord‑keeping requirements and regulatory powers (mostly drawn from the Regulatory Powers Act) are included to assist in enforcing the Act.\n\nThe operation of the Act is to be reviewed periodically.\n\n#### 5 Extension to external Territories\n\n (1) This Act extends to every external Territory.\n (2) The Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be:\n (a) prosecuted for an offence; or\n (b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or\n (c) given an infringement notice under Part 5 of the Regulatory Powers Act.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.\n\n#### 7 Definitions\n\n (1) In this Act:\n\n> Australia includes the external Territories.\n\n> certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.\n\n> civil penalty provision has the same meaning as in the Regulatory Powers Act.\n\n> Climate Change Conventions means:\n\n (a) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992; and\n (b) the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997; and\n (c) the Paris Agreement, done at Paris on 12 December 2015;\n as amended and in force for Australia from time to time.\n\n> Note: The Convention, the Protocol and the Agreement are in Australian Treaty Series 1994 No. 2 (\\[1994\\] ATS 2), 2008 No. 2 (\\[2008\\] ATS 2) and 2016 No. 24 (\\[2016\\] ATS 24), respectively. In 2017 they could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)\n\n> emissions‑controlled product means a product that is prescribed by the rules for the purposes of section 9.\n\n> emissions standard means a standard dealing with matters relating to emissions from products.\n\n> engage in conduct includes omitting to perform an act.\n\n> evidential material has the same meaning as in the Regulatory Powers Act.\n\n> forfeiture notice has the meaning given by subsection 34(2).\n\n> inspector means a person appointed under section 41.\n\n> manufacture, for a product prescribed for the purposes of the definition of product, means produce by any method.\n\n> mark includes label.\n\n> person assisting an authorised person has the same meaning as in the Regulatory Powers Act.\n\n> product means a thing (including a substance or mixture of substances) that is:\n\n (a) manufactured; or\n (b) prescribed by the rules for the purposes of this definition.\n\n> regulatory authority includes a regulatory authority of, or located in, a foreign country.\n\n> Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.\n\n> reporting period, for an emissions‑controlled product, means a period prescribed by the rules.\n\n> rules means rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> supply, in relation to a product, has the meaning given by subsection (2).\n\n> this Act includes instruments made under this Act.\n\n (2) A supply of a product means a supply in the course of trading or commercial activities.\n (3) For the purposes of subsection (2), supply includes:\n (a) an offer to supply (including making available, exposing, displaying or advertising the product); and\n (b) a supply (including a resupply) by way of sale, exchange, gift, lease, loan, hire or hire‑purchase; and\n (c) a supply as part of the supply of another thing.\n (4) For the purposes of subsection (2), it is irrelevant whether the supply is:\n (a) for consideration; or\n (b) a wholesale or retail supply.\n\n## Part 2—Emissions‑controlled products\n\n#### 8 Simplified outline of this Part\n\nThe rules may prescribe a product as an emissions‑controlled product.\n\nThe rules may provide for an emissions‑controlled product to be certified. A minimum requirement for certification is that the product meets an emissions standard.\n\nThe rules may exempt persons or products from the operation of the Act.\n\n#### 9 Emissions‑controlled products\n\n The rules may prescribe a product as an emissions‑controlled product.\n\n#### 10 Certification\n\n (1) The rules may provide for an emissions‑controlled product to be certified for the purposes of this Act.\n Product must meet emissions standard\n (2) However, the rules must not provide for a product to be certified for the purposes of this Act unless:\n (a) the Secretary is satisfied that the product complies with an emissions standard set out in the rules for the product; or\n (b) the product is certified:\n (i) by a regulatory authority specified in the rules for the product; and\n (ii) as meeting an emissions standard specified in the rules for the product.\n\n> Note: For regulatory authority, see section 7.\n\n Other requirements\n (3) The rules may prescribe other requirements for, or in relation to, certifying a product for the purposes of this Act.\n (4) Without limiting subsection (3), the requirements may include requirements relating to the following:\n (a) applications for certification;\n (b) processes and criteria for certification, including testing;\n (c) processes for suspending or revoking certification;\n (d) the use of marks to indicate certification.\n\n> Note: The rules may provide for charging fees and for review of decisions: see subsection 51(2).\n\n#### 11 Exemptions\n\n (1) The rules may provide for the exemption of:\n (a) a specified emissions‑controlled product from one or more provisions of this Act; or\n (b) a specified emissions‑controlled product or person from one or more provisions of this Act in the circumstances set out in the rules.\n\n> Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (2) Without limiting paragraph (1)(b), the circumstances may include that a person has:\n (a) applied for and been granted an exemption; or\n (b) given the Secretary specified notice or information; or\n (c) taken other action required by the rules.\n (3) The rules may provide processes for, and other requirements in relation to, obtaining, varying, suspending or revoking exemptions.\n\n> Note: The rules may provide for charging fees: see subsection 51(2).\n\n (4) The rules may provide for the Secretary to make decisions in relation to exemptions, including deciding whether to grant an exemption.\n\n> Note: The rules may provide for review of decisions: see subsection 51(2).\n\n## Part 3—Enforcing product emissions standards\n\n### Division 1—Simplified outline of this Part\n\n#### 12 Simplified outline of this Part\n\nOffences and civil penalties apply:\n\n(a) if an emissions‑controlled product is imported or supplied and the product is not certified, or marked as required; and\n\n(b) for marking a product that is not certified, and for marking a product incorrectly.\n\n### Division 2—Importing emissions‑controlled products\n\n#### 13 Import of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 14 Import of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 3—Supplying emissions‑controlled products\n\n#### 15 Supply of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 16 Supply of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 4—Marking emissions‑controlled products\n\n#### 17 Marking product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules require the product to be marked if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the product is not so certified.\n (2) For the purposes of paragraph (1)(f), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 18 Incorrect marking of product\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules impose requirements for marking the product if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the mark is not in accordance with the requirements in the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n## Part 4—Record keeping\n\n#### 19 Simplified outline of this Part\n\nImporters and suppliers of emissions‑controlled products may be required to keep records and to give the Secretary the recorded information.\n\nReports may also be required on the supply of emissions‑controlled products manufactured in Australia.\n\n#### 20 Rules may provide record‑keeping requirements\n\n (1) The rules may require a person who imports or supplies emissions‑controlled products to make and keep records in relation to the imports or supplies.\n (2) A person contravenes this subsection if:\n (a) the rules require the person to make or keep a record; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (2).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (2).\n\nCivil penalty: 80 penalty units.\n\n#### 21 Secretary may require recorded information\n\n (1) The Secretary may, by notice in writing, require a person to give the Secretary information that the person is required by the rules to keep in a record, if the Secretary reasonably suspects that:\n (a) a provision of this Act has been contravened or is being contravened; and\n (b) the information is relevant to the suspected contravention.\n (2) The notice must:\n (a) identify the information that must be given to the Secretary; and\n (b) state the day the information must be given by, which must be a reasonable period after the notice is given to the person.\n (3) The Secretary may, on application by the person, change the day the information must be given by to a later day.\n (4) A person contravenes this subsection if:\n (a) the person is required to give information under this section; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (5) A person commits an offence of strict liability if the person contravenes subsection (4).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (6) A person is liable to a civil penalty if the person contravenes subsection (4).\n\nCivil penalty: 80 penalty units.\n\n#### 22 Reporting on supply of products manufactured in Australia\n\n (1) The rules may prescribe a reporting period for an emissions‑controlled product.\n (2) If, during a reporting period for an emissions‑controlled product that is manufactured in Australia, a person makes the first supply of the product, the person must give to the Secretary a report containing the information prescribed by the rules relating to such products that the person has so supplied during the reporting period.\n (3) The report must be given to the Secretary no later than 60 days after the end of the reporting period.\n (4) A reference to supply in subsection (2) does not include an offer to supply.\n\n> Note: For the usual definition of supply in this Act, see subsections 7(2) to (4).\n\n (5) A person contravenes this subsection if:\n (a) the person is required by subsection (2) to give a report to the Secretary for a reporting period for an emissions‑controlled product; and\n (b) the person does not give the Secretary the report in the period ending 60 days after the end of the reporting period.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 120 penalty units.\n\n## Part 5—Regulatory powers\n\n#### 23 Simplified outline of this Part\n\nThis Part applies the Regulatory Powers Act to the product emissions standards framework.\n\n#### 24 Monitoring powers\n\n (1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:\n (a) a provision of this Act; or\n (b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.\n\n (2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.\n\n (3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to offences and civil penalty provisions of this Act.\n\n#### 25 Investigation powers\n\n (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:\n (a) an offence provision of this Act; or\n (b) a civil penalty provision of this Act; or\n (c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.\n\n (2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to offences and civil penalty provisions of this Act.\n\n#### 26 Civil penalty provisions\n\n (1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.\n\n> Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\n (2) For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised applicant; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 27 Infringement notices\n\n (1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:\n (a) an offence provision of this Act that is an offence of strict liability;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.\n\n (2) For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an infringement officer; and\n (b) the Secretary is the relevant chief executive.\n\n#### 28 Enforceable undertakings\n\n (1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.\n\n (2) For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 29 Injunctions\n\n (1) The following provisions are enforceable under Part 7 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.\n\n (2) For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n## Part 6—Forfeiture of emissions‑controlled products\n\n### Division 1—Simplified outline of this Part\n\n#### 30 Simplified outline of this Part\n\nAn emissions‑controlled product is forfeited when a provision of Part 3 (relating to the import, supply or marking of the product) is contravened in relation to the product.\n\nAn emissions‑controlled product may also be forfeited when it has been seized as part of an investigation and an inspector reasonably suspects a provision in Part 3 has been contravened. A court may order the return of a product so seized, or that compensation be paid.\n\n### Division 2—Forfeiture following conviction or making of civil penalty order\n\n#### 31 Product forfeited to Commonwealth\n\n (1) This section applies if a person is convicted of an offence, or ordered to pay a civil penalty, for contravening a provision of Part 3.\n (2) The product concerned is forfeited to the Commonwealth.\n\n#### 32 Power to seize forfeited product\n\n (1) An inspector may seize a product that is forfeited under section 31.\n (2) Without limiting subsection (1), the product may be seized by attaching to the product, or to the container in which the product is held, a notice in writing signed by the inspector that:\n (a) identifies the product; and\n (b) states that the product has been seized under this section; and\n (c) specifies the reason for the seizure.\n (3) An inspector must give a copy of the notice as soon as practicable to the owner of the product or the person from whom the product was seized.\n\n#### 33 Person must not interfere with seized product\n\n (1) A person commits an offence if:\n (a) the person engages in conduct; and\n (b) the conduct causes an emissions‑controlled product to be moved, altered or interfered with; and\n (c) the product is the subject of a notice under subsection 32(2).\n\nPenalty: Imprisonment for 6 months.\n\n (2) Subsection (1) does not apply if the person engages in the conduct in accordance with a direction given to the person by the Minister.\n\n> Note: The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.\n\n (3) A person commits an offence if:\n (a) the person is given a notice under subsection 32(3); and\n (b) the person does not take all reasonable precautions to prevent the product being moved, altered or interfered with except in accordance with a direction given by the Minister.\n\nPenalty: Imprisonment for 6 months.\n\n### Division 3—Forfeiture of seized products\n\n#### 34 Forfeiture notices\n\n (1) This section applies if:\n (a) an inspector seizes an emissions‑controlled product under Part 3 of the Regulatory Powers Act as it applies in relation to this Act; and\n (b) the inspector reasonably suspects that a provision of Part 3 of this Act was contravened in relation to the product.\n (2) The inspector may, within 7 days after the product is seized, give a written notice (the forfeiture notice) to the owner of the product.\n (3) If the owner of the product cannot be identified after reasonable inquiry, the inspector may give the forfeiture notice to the person from whom the product was seized.\n (4) The notice must:\n (a) identify the product; and\n (b) state that the product has been seized; and\n (c) specify the reason for the seizure; and\n (d) state that the product will be forfeited to the Commonwealth unless a court, on application under section 35, orders the product to be returned.\n\n#### 35 Claims for return of seized product\n\n (1) This section applies if a forfeiture notice is given in relation to an emissions‑controlled product.\n (2) The owner of the product or the person from whom the product was seized may apply to one of the following for an order that the product be returned:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) The application must be made within 60 days after the forfeiture notice is given.\n (4) The court must order that the product be returned if:\n (a) an application for the order was made in accordance with this section; and\n (b) the court is satisfied that no provision of Part 3 was contravened in relation to the product.\n (5) If the court orders that the product be returned, the Commonwealth must take reasonable steps to return the product to the applicant.\n (6) Subsection (5) does not apply if:\n (a) proceedings for which the product may provide evidence were instituted before the order was made, and have not been completed (including any appeal); or\n (b) returning the product could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or\n (c) an inspector is otherwise authorised (by a law or an order of a court) to retain, destroy or dispose of the product.\n\n#### 36 Forfeiture of seized product to the Commonwealth\n\n A product in relation to which a forfeiture notice is given is forfeited to the Commonwealth if:\n (a) no application has been made under section 35 for an order that the product be returned; or\n (b) such an application has been made, and the court decides not to so order.\n\n#### 37 Right of compensation in certain circumstances\n\n (1) The person who owned an emissions‑controlled product forfeited to the Commonwealth under section 36 may apply to one of the following for compensation:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (2) The court must order that the Commonwealth pay compensation to the applicant if the court is satisfied that:\n (a) the applicant owned the product immediately before it was forfeited; and\n (b) either:\n (i) Part 3 of the Regulatory Powers Act, as it applies in relation to this Act, was not complied with in relation to the seizure of the product; or\n (ii) if the product was forfeited under paragraph 36(a)—no provision of Part 3 of this Act was contravened in relation to the product.\n (3) The amount of compensation must be the market value of the product at the time the product was forfeited under section 36.\n\n### Division 4—General provisions\n\n#### 38 Forfeited products become property of Commonwealth\n\n Products forfeited to the Commonwealth under section 31 or 36 become the property of the Commonwealth.\n\n#### 39 Disposal of forfeited products\n\n (1) Products forfeited under section 31 or 36 must be dealt with and disposed of in accordance with the directions of the Minister.\n (2) The forfeited products must not be sold.\n\n## Part 7—Miscellaneous\n\n#### 40 Simplified outline of this Part\n\nThis Part deals with the appointment of inspectors, the publication and disclosure of information, and the conduct of audits to ensure compliance with this Act.\n\nIt also provides for the delegation of powers, requires periodic reviews of the operation of the Act, and enables the Minister to make rules.\n\n#### 41 Inspectors\n\n (1) The Secretary may, in writing, appoint an APS employee as an inspector for the purposes of this Act.\n (2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.\n (3) An inspector must, in performing functions or exercising powers as an inspector, comply with any directions of the Secretary.\n (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.\n\n#### 42 Publication of information relating to certifications and exemptions\n\n (1) The Secretary may publish information relating to an emissions‑controlled product that is certified for the purposes of this Act, including but not limited to:\n (a) information that identifies the product and the manufacturer of the product; and\n (b) information about emissions from the product; and\n (c) information about the certification.\n (2) The Secretary may publish information relating to an exemption of an emissions‑controlled product or a person from a provision of this Act, including but not limited to:\n (a) circumstances in which the exemption applies; and\n (b) reasons for the exemption; and\n (c) the person who applied for the exemption.\n\n#### 43 Disclosure of information\n\n (1) The Secretary may disclose information obtained under this Act to:\n (a) the Australian Border Force (within the meaning of the Australian Border Force Act 2015); or\n (b) an agency, body or person prescribed by the rules;\n if the Secretary reasonably believes that the information will enable or assist the agency, body or person to exercise its powers, or perform its functions or duties.\n\n> Note: Subsection 51(6) has requirements relating to rules made for the purposes of paragraph (b).\n\n (2) This section does not limit any other powers the Secretary has to disclose information to a person.\n\n#### 44 Compliance audits\n\n (1) This section applies if the Minister:\n (a) reasonably suspects that a person has engaged or is engaging in conduct that constitutes:\n (i) an offence against this Act; or\n (ii) a contravention of a civil penalty provision; and\n (b) is satisfied that it would be in the public interest to give the person a notice under this section.\n (2) The Minister may, by written notice given to the person, require the person:\n (a) to undertake, or arrange for another person to undertake, an audit of whichever of the following is specified in the notice:\n (i) the person’s compliance with this Act;\n (ii) one or more specified aspects of the person’s compliance with this Act; and\n (b) to give the Minister a written report setting out the results of the audit.\n (3) The notice must specify:\n (a) if the notice requires the person to arrange another person to undertake the audit—requirements relating to the qualifications and independence of the other person; and\n (b) the matters to be covered by the audit; and\n (c) the period within which the audit must be undertaken; and\n (d) the form and content of the report; and\n (e) the period within which the report must be given to the Minister.\n (4) A notice under subsection (2) is not a legislative instrument.\n (5) A person contravenes this subsection if the person is subject to a requirement under subsection (2) and the person fails to comply with the requirement.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 80 penalty units.\n\n#### 45 Delegation by the Minister\n\n (1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act (except section 51) to:\n (a) the Secretary; or\n (b) an SES employee, or acting SES employee, in the Department.\n\n> Note 1: Section 51 gives the Minister power to make rules.\n\n> Note 2: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Minister.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 46 Delegation by the Secretary\n\n (1) The Secretary may, by writing, delegate all or any of his or her powers or functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act, to:\n (a) an SES employee or acting SES employee in the Department; or\n (b) an APS employee who occupies, or performs the duties of, a position not below Executive Level 2 or equivalent in the Department.\n\n> Note: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 47 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken as soon as possible after the seventh anniversary of its commencement and afterwards at intervals of no longer than 10 years.\n (2) The person undertaking a review must give the Minister a written report of the review.\n (3) The Minister must cause a copy of the report of a review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.\n\n#### 48 Physical elements of offences\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.\n (2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.\n\n> Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.\n\n#### 49 Contravening offence and civil penalty provisions\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.\n (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.\n\n#### 50 Alternative constitutional bases\n\n (1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.\n (2) To avoid doubt, no subsection of this section limits the operation of any other subsection.\n Import\n (3) This Act has the effect it would have if each reference to import were expressly confined to import in the course of trade or commerce.\n Supply\n (4) This Act has the effect it would have if each reference to supply were expressly confined to supply in the course of trade or commerce:\n (a) between Australia and places outside Australia; or\n (b) among the States; or\n (c) within a Territory, between a State and a Territory or between 2 Territories.\n Corporations power\n (5) This Act has the effect it would have if each reference to a person were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) Without limiting subsection (1), the rules may provide for:\n (a) charging fees for services provided in the performance of functions under this Act; and\n (b) the review of decisions made under this Act.\n (3) Rules setting out an emissions standard for the purposes of paragraph 10(2)(a) may apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time if the instrument or writing is produced by one or more of the following:\n (a) the International Electrotechnical Commission;\n (b) the International Organization for Standardization;\n (c) the United Nations Economic Commission for Europe;\n (d) any other organisation prescribed by the rules.\n (4) Rules specifying an emissions standard for the purposes of subparagraph 10(2)(b)(ii) may specify a standard as in force or existing from time to time.\n (5) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.\n (6) Before making rules for the purposes of paragraph 43(1)(b), the Minister must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of that consultation.\n (7) The rules may provide for the collection and recovery of charges imposed by the Product Emissions Standards (Customs) Charges Act 2017 and the Product Emissions Standards (Excise) Charges Act 2017.","sortOrder":16},{"sectionNumber":"13","sectionType":"section","heading":"Import of product that is not certified","content":"#### 13 Import of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.","sortOrder":17},{"sectionNumber":"14","sectionType":"section","heading":"Import of product that is not marked as required","content":"#### 14 Import of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.","sortOrder":18},{"sectionNumber":"Division 3","sectionType":"division","heading":"Supplying emissions‑controlled products","content":"An Act to improve air quality by regulating emissions from certain products, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Product Emissions Standards Act 2017.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The day after this Act receives the Royal Assent.

15 September 2017

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Objects of this Act\n\n The objects of this Act are:\n (a) to regulate emissions from certain products by setting emissions standards; and\n (b) in doing so, to achieve either or both of the following:\n (i) contribute to improving air quality in Australia in order to deliver associated health and environmental benefits;\n (ii) assist in giving effect to Australia’s obligations under one or more of the Climate Change Conventions.\n\n> Note: For Climate Change Conventions, see section 7.\n\n#### 4 Simplified outline of this Act\n\nThis Act creates a framework for regulating emissions from products.\n\nThe Act provides for an emissions‑controlled product to be certified. To be certified, the product must meet an emissions standard.\n\nA person who imports or supplies an emissions‑controlled product that is not certified will commit an offence. There are also offences related to false or incorrect marking of products as certified. Civil penalties are included as alternatives to offences.\n\nProducts dealt with in breach of the Act are forfeited to the Commonwealth.\n\nThe rules may exempt persons or products from the operation of the Act.\n\nRecord‑keeping requirements and regulatory powers (mostly drawn from the Regulatory Powers Act) are included to assist in enforcing the Act.\n\nThe operation of the Act is to be reviewed periodically.\n\n#### 5 Extension to external Territories\n\n (1) This Act extends to every external Territory.\n (2) The Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be:\n (a) prosecuted for an offence; or\n (b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or\n (c) given an infringement notice under Part 5 of the Regulatory Powers Act.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.\n\n#### 7 Definitions\n\n (1) In this Act:\n\n> Australia includes the external Territories.\n\n> certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.\n\n> civil penalty provision has the same meaning as in the Regulatory Powers Act.\n\n> Climate Change Conventions means:\n\n (a) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992; and\n (b) the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997; and\n (c) the Paris Agreement, done at Paris on 12 December 2015;\n as amended and in force for Australia from time to time.\n\n> Note: The Convention, the Protocol and the Agreement are in Australian Treaty Series 1994 No. 2 (\\[1994\\] ATS 2), 2008 No. 2 (\\[2008\\] ATS 2) and 2016 No. 24 (\\[2016\\] ATS 24), respectively. In 2017 they could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)\n\n> emissions‑controlled product means a product that is prescribed by the rules for the purposes of section 9.\n\n> emissions standard means a standard dealing with matters relating to emissions from products.\n\n> engage in conduct includes omitting to perform an act.\n\n> evidential material has the same meaning as in the Regulatory Powers Act.\n\n> forfeiture notice has the meaning given by subsection 34(2).\n\n> inspector means a person appointed under section 41.\n\n> manufacture, for a product prescribed for the purposes of the definition of product, means produce by any method.\n\n> mark includes label.\n\n> person assisting an authorised person has the same meaning as in the Regulatory Powers Act.\n\n> product means a thing (including a substance or mixture of substances) that is:\n\n (a) manufactured; or\n (b) prescribed by the rules for the purposes of this definition.\n\n> regulatory authority includes a regulatory authority of, or located in, a foreign country.\n\n> Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.\n\n> reporting period, for an emissions‑controlled product, means a period prescribed by the rules.\n\n> rules means rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> supply, in relation to a product, has the meaning given by subsection (2).\n\n> this Act includes instruments made under this Act.\n\n (2) A supply of a product means a supply in the course of trading or commercial activities.\n (3) For the purposes of subsection (2), supply includes:\n (a) an offer to supply (including making available, exposing, displaying or advertising the product); and\n (b) a supply (including a resupply) by way of sale, exchange, gift, lease, loan, hire or hire‑purchase; and\n (c) a supply as part of the supply of another thing.\n (4) For the purposes of subsection (2), it is irrelevant whether the supply is:\n (a) for consideration; or\n (b) a wholesale or retail supply.\n\n## Part 2—Emissions‑controlled products\n\n#### 8 Simplified outline of this Part\n\nThe rules may prescribe a product as an emissions‑controlled product.\n\nThe rules may provide for an emissions‑controlled product to be certified. A minimum requirement for certification is that the product meets an emissions standard.\n\nThe rules may exempt persons or products from the operation of the Act.\n\n#### 9 Emissions‑controlled products\n\n The rules may prescribe a product as an emissions‑controlled product.\n\n#### 10 Certification\n\n (1) The rules may provide for an emissions‑controlled product to be certified for the purposes of this Act.\n Product must meet emissions standard\n (2) However, the rules must not provide for a product to be certified for the purposes of this Act unless:\n (a) the Secretary is satisfied that the product complies with an emissions standard set out in the rules for the product; or\n (b) the product is certified:\n (i) by a regulatory authority specified in the rules for the product; and\n (ii) as meeting an emissions standard specified in the rules for the product.\n\n> Note: For regulatory authority, see section 7.\n\n Other requirements\n (3) The rules may prescribe other requirements for, or in relation to, certifying a product for the purposes of this Act.\n (4) Without limiting subsection (3), the requirements may include requirements relating to the following:\n (a) applications for certification;\n (b) processes and criteria for certification, including testing;\n (c) processes for suspending or revoking certification;\n (d) the use of marks to indicate certification.\n\n> Note: The rules may provide for charging fees and for review of decisions: see subsection 51(2).\n\n#### 11 Exemptions\n\n (1) The rules may provide for the exemption of:\n (a) a specified emissions‑controlled product from one or more provisions of this Act; or\n (b) a specified emissions‑controlled product or person from one or more provisions of this Act in the circumstances set out in the rules.\n\n> Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (2) Without limiting paragraph (1)(b), the circumstances may include that a person has:\n (a) applied for and been granted an exemption; or\n (b) given the Secretary specified notice or information; or\n (c) taken other action required by the rules.\n (3) The rules may provide processes for, and other requirements in relation to, obtaining, varying, suspending or revoking exemptions.\n\n> Note: The rules may provide for charging fees: see subsection 51(2).\n\n (4) The rules may provide for the Secretary to make decisions in relation to exemptions, including deciding whether to grant an exemption.\n\n> Note: The rules may provide for review of decisions: see subsection 51(2).\n\n## Part 3—Enforcing product emissions standards\n\n### Division 1—Simplified outline of this Part\n\n#### 12 Simplified outline of this Part\n\nOffences and civil penalties apply:\n\n(a) if an emissions‑controlled product is imported or supplied and the product is not certified, or marked as required; and\n\n(b) for marking a product that is not certified, and for marking a product incorrectly.\n\n### Division 2—Importing emissions‑controlled products\n\n#### 13 Import of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 14 Import of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 3—Supplying emissions‑controlled products\n\n#### 15 Supply of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 16 Supply of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 4—Marking emissions‑controlled products\n\n#### 17 Marking product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules require the product to be marked if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the product is not so certified.\n (2) For the purposes of paragraph (1)(f), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 18 Incorrect marking of product\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules impose requirements for marking the product if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the mark is not in accordance with the requirements in the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n## Part 4—Record keeping\n\n#### 19 Simplified outline of this Part\n\nImporters and suppliers of emissions‑controlled products may be required to keep records and to give the Secretary the recorded information.\n\nReports may also be required on the supply of emissions‑controlled products manufactured in Australia.\n\n#### 20 Rules may provide record‑keeping requirements\n\n (1) The rules may require a person who imports or supplies emissions‑controlled products to make and keep records in relation to the imports or supplies.\n (2) A person contravenes this subsection if:\n (a) the rules require the person to make or keep a record; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (2).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (2).\n\nCivil penalty: 80 penalty units.\n\n#### 21 Secretary may require recorded information\n\n (1) The Secretary may, by notice in writing, require a person to give the Secretary information that the person is required by the rules to keep in a record, if the Secretary reasonably suspects that:\n (a) a provision of this Act has been contravened or is being contravened; and\n (b) the information is relevant to the suspected contravention.\n (2) The notice must:\n (a) identify the information that must be given to the Secretary; and\n (b) state the day the information must be given by, which must be a reasonable period after the notice is given to the person.\n (3) The Secretary may, on application by the person, change the day the information must be given by to a later day.\n (4) A person contravenes this subsection if:\n (a) the person is required to give information under this section; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (5) A person commits an offence of strict liability if the person contravenes subsection (4).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (6) A person is liable to a civil penalty if the person contravenes subsection (4).\n\nCivil penalty: 80 penalty units.\n\n#### 22 Reporting on supply of products manufactured in Australia\n\n (1) The rules may prescribe a reporting period for an emissions‑controlled product.\n (2) If, during a reporting period for an emissions‑controlled product that is manufactured in Australia, a person makes the first supply of the product, the person must give to the Secretary a report containing the information prescribed by the rules relating to such products that the person has so supplied during the reporting period.\n (3) The report must be given to the Secretary no later than 60 days after the end of the reporting period.\n (4) A reference to supply in subsection (2) does not include an offer to supply.\n\n> Note: For the usual definition of supply in this Act, see subsections 7(2) to (4).\n\n (5) A person contravenes this subsection if:\n (a) the person is required by subsection (2) to give a report to the Secretary for a reporting period for an emissions‑controlled product; and\n (b) the person does not give the Secretary the report in the period ending 60 days after the end of the reporting period.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 120 penalty units.\n\n## Part 5—Regulatory powers\n\n#### 23 Simplified outline of this Part\n\nThis Part applies the Regulatory Powers Act to the product emissions standards framework.\n\n#### 24 Monitoring powers\n\n (1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:\n (a) a provision of this Act; or\n (b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.\n\n (2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.\n\n (3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to offences and civil penalty provisions of this Act.\n\n#### 25 Investigation powers\n\n (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:\n (a) an offence provision of this Act; or\n (b) a civil penalty provision of this Act; or\n (c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.\n\n (2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to offences and civil penalty provisions of this Act.\n\n#### 26 Civil penalty provisions\n\n (1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.\n\n> Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\n (2) For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised applicant; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 27 Infringement notices\n\n (1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:\n (a) an offence provision of this Act that is an offence of strict liability;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.\n\n (2) For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an infringement officer; and\n (b) the Secretary is the relevant chief executive.\n\n#### 28 Enforceable undertakings\n\n (1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.\n\n (2) For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 29 Injunctions\n\n (1) The following provisions are enforceable under Part 7 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.\n\n (2) For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n## Part 6—Forfeiture of emissions‑controlled products\n\n### Division 1—Simplified outline of this Part\n\n#### 30 Simplified outline of this Part\n\nAn emissions‑controlled product is forfeited when a provision of Part 3 (relating to the import, supply or marking of the product) is contravened in relation to the product.\n\nAn emissions‑controlled product may also be forfeited when it has been seized as part of an investigation and an inspector reasonably suspects a provision in Part 3 has been contravened. A court may order the return of a product so seized, or that compensation be paid.\n\n### Division 2—Forfeiture following conviction or making of civil penalty order\n\n#### 31 Product forfeited to Commonwealth\n\n (1) This section applies if a person is convicted of an offence, or ordered to pay a civil penalty, for contravening a provision of Part 3.\n (2) The product concerned is forfeited to the Commonwealth.\n\n#### 32 Power to seize forfeited product\n\n (1) An inspector may seize a product that is forfeited under section 31.\n (2) Without limiting subsection (1), the product may be seized by attaching to the product, or to the container in which the product is held, a notice in writing signed by the inspector that:\n (a) identifies the product; and\n (b) states that the product has been seized under this section; and\n (c) specifies the reason for the seizure.\n (3) An inspector must give a copy of the notice as soon as practicable to the owner of the product or the person from whom the product was seized.\n\n#### 33 Person must not interfere with seized product\n\n (1) A person commits an offence if:\n (a) the person engages in conduct; and\n (b) the conduct causes an emissions‑controlled product to be moved, altered or interfered with; and\n (c) the product is the subject of a notice under subsection 32(2).\n\nPenalty: Imprisonment for 6 months.\n\n (2) Subsection (1) does not apply if the person engages in the conduct in accordance with a direction given to the person by the Minister.\n\n> Note: The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.\n\n (3) A person commits an offence if:\n (a) the person is given a notice under subsection 32(3); and\n (b) the person does not take all reasonable precautions to prevent the product being moved, altered or interfered with except in accordance with a direction given by the Minister.\n\nPenalty: Imprisonment for 6 months.\n\n### Division 3—Forfeiture of seized products\n\n#### 34 Forfeiture notices\n\n (1) This section applies if:\n (a) an inspector seizes an emissions‑controlled product under Part 3 of the Regulatory Powers Act as it applies in relation to this Act; and\n (b) the inspector reasonably suspects that a provision of Part 3 of this Act was contravened in relation to the product.\n (2) The inspector may, within 7 days after the product is seized, give a written notice (the forfeiture notice) to the owner of the product.\n (3) If the owner of the product cannot be identified after reasonable inquiry, the inspector may give the forfeiture notice to the person from whom the product was seized.\n (4) The notice must:\n (a) identify the product; and\n (b) state that the product has been seized; and\n (c) specify the reason for the seizure; and\n (d) state that the product will be forfeited to the Commonwealth unless a court, on application under section 35, orders the product to be returned.\n\n#### 35 Claims for return of seized product\n\n (1) This section applies if a forfeiture notice is given in relation to an emissions‑controlled product.\n (2) The owner of the product or the person from whom the product was seized may apply to one of the following for an order that the product be returned:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) The application must be made within 60 days after the forfeiture notice is given.\n (4) The court must order that the product be returned if:\n (a) an application for the order was made in accordance with this section; and\n (b) the court is satisfied that no provision of Part 3 was contravened in relation to the product.\n (5) If the court orders that the product be returned, the Commonwealth must take reasonable steps to return the product to the applicant.\n (6) Subsection (5) does not apply if:\n (a) proceedings for which the product may provide evidence were instituted before the order was made, and have not been completed (including any appeal); or\n (b) returning the product could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or\n (c) an inspector is otherwise authorised (by a law or an order of a court) to retain, destroy or dispose of the product.\n\n#### 36 Forfeiture of seized product to the Commonwealth\n\n A product in relation to which a forfeiture notice is given is forfeited to the Commonwealth if:\n (a) no application has been made under section 35 for an order that the product be returned; or\n (b) such an application has been made, and the court decides not to so order.\n\n#### 37 Right of compensation in certain circumstances\n\n (1) The person who owned an emissions‑controlled product forfeited to the Commonwealth under section 36 may apply to one of the following for compensation:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (2) The court must order that the Commonwealth pay compensation to the applicant if the court is satisfied that:\n (a) the applicant owned the product immediately before it was forfeited; and\n (b) either:\n (i) Part 3 of the Regulatory Powers Act, as it applies in relation to this Act, was not complied with in relation to the seizure of the product; or\n (ii) if the product was forfeited under paragraph 36(a)—no provision of Part 3 of this Act was contravened in relation to the product.\n (3) The amount of compensation must be the market value of the product at the time the product was forfeited under section 36.\n\n### Division 4—General provisions\n\n#### 38 Forfeited products become property of Commonwealth\n\n Products forfeited to the Commonwealth under section 31 or 36 become the property of the Commonwealth.\n\n#### 39 Disposal of forfeited products\n\n (1) Products forfeited under section 31 or 36 must be dealt with and disposed of in accordance with the directions of the Minister.\n (2) The forfeited products must not be sold.\n\n## Part 7—Miscellaneous\n\n#### 40 Simplified outline of this Part\n\nThis Part deals with the appointment of inspectors, the publication and disclosure of information, and the conduct of audits to ensure compliance with this Act.\n\nIt also provides for the delegation of powers, requires periodic reviews of the operation of the Act, and enables the Minister to make rules.\n\n#### 41 Inspectors\n\n (1) The Secretary may, in writing, appoint an APS employee as an inspector for the purposes of this Act.\n (2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.\n (3) An inspector must, in performing functions or exercising powers as an inspector, comply with any directions of the Secretary.\n (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.\n\n#### 42 Publication of information relating to certifications and exemptions\n\n (1) The Secretary may publish information relating to an emissions‑controlled product that is certified for the purposes of this Act, including but not limited to:\n (a) information that identifies the product and the manufacturer of the product; and\n (b) information about emissions from the product; and\n (c) information about the certification.\n (2) The Secretary may publish information relating to an exemption of an emissions‑controlled product or a person from a provision of this Act, including but not limited to:\n (a) circumstances in which the exemption applies; and\n (b) reasons for the exemption; and\n (c) the person who applied for the exemption.\n\n#### 43 Disclosure of information\n\n (1) The Secretary may disclose information obtained under this Act to:\n (a) the Australian Border Force (within the meaning of the Australian Border Force Act 2015); or\n (b) an agency, body or person prescribed by the rules;\n if the Secretary reasonably believes that the information will enable or assist the agency, body or person to exercise its powers, or perform its functions or duties.\n\n> Note: Subsection 51(6) has requirements relating to rules made for the purposes of paragraph (b).\n\n (2) This section does not limit any other powers the Secretary has to disclose information to a person.\n\n#### 44 Compliance audits\n\n (1) This section applies if the Minister:\n (a) reasonably suspects that a person has engaged or is engaging in conduct that constitutes:\n (i) an offence against this Act; or\n (ii) a contravention of a civil penalty provision; and\n (b) is satisfied that it would be in the public interest to give the person a notice under this section.\n (2) The Minister may, by written notice given to the person, require the person:\n (a) to undertake, or arrange for another person to undertake, an audit of whichever of the following is specified in the notice:\n (i) the person’s compliance with this Act;\n (ii) one or more specified aspects of the person’s compliance with this Act; and\n (b) to give the Minister a written report setting out the results of the audit.\n (3) The notice must specify:\n (a) if the notice requires the person to arrange another person to undertake the audit—requirements relating to the qualifications and independence of the other person; and\n (b) the matters to be covered by the audit; and\n (c) the period within which the audit must be undertaken; and\n (d) the form and content of the report; and\n (e) the period within which the report must be given to the Minister.\n (4) A notice under subsection (2) is not a legislative instrument.\n (5) A person contravenes this subsection if the person is subject to a requirement under subsection (2) and the person fails to comply with the requirement.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 80 penalty units.\n\n#### 45 Delegation by the Minister\n\n (1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act (except section 51) to:\n (a) the Secretary; or\n (b) an SES employee, or acting SES employee, in the Department.\n\n> Note 1: Section 51 gives the Minister power to make rules.\n\n> Note 2: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Minister.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 46 Delegation by the Secretary\n\n (1) The Secretary may, by writing, delegate all or any of his or her powers or functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act, to:\n (a) an SES employee or acting SES employee in the Department; or\n (b) an APS employee who occupies, or performs the duties of, a position not below Executive Level 2 or equivalent in the Department.\n\n> Note: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 47 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken as soon as possible after the seventh anniversary of its commencement and afterwards at intervals of no longer than 10 years.\n (2) The person undertaking a review must give the Minister a written report of the review.\n (3) The Minister must cause a copy of the report of a review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.\n\n#### 48 Physical elements of offences\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.\n (2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.\n\n> Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.\n\n#### 49 Contravening offence and civil penalty provisions\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.\n (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.\n\n#### 50 Alternative constitutional bases\n\n (1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.\n (2) To avoid doubt, no subsection of this section limits the operation of any other subsection.\n Import\n (3) This Act has the effect it would have if each reference to import were expressly confined to import in the course of trade or commerce.\n Supply\n (4) This Act has the effect it would have if each reference to supply were expressly confined to supply in the course of trade or commerce:\n (a) between Australia and places outside Australia; or\n (b) among the States; or\n (c) within a Territory, between a State and a Territory or between 2 Territories.\n Corporations power\n (5) This Act has the effect it would have if each reference to a person were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) Without limiting subsection (1), the rules may provide for:\n (a) charging fees for services provided in the performance of functions under this Act; and\n (b) the review of decisions made under this Act.\n (3) Rules setting out an emissions standard for the purposes of paragraph 10(2)(a) may apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time if the instrument or writing is produced by one or more of the following:\n (a) the International Electrotechnical Commission;\n (b) the International Organization for Standardization;\n (c) the United Nations Economic Commission for Europe;\n (d) any other organisation prescribed by the rules.\n (4) Rules specifying an emissions standard for the purposes of subparagraph 10(2)(b)(ii) may specify a standard as in force or existing from time to time.\n (5) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.\n (6) Before making rules for the purposes of paragraph 43(1)(b), the Minister must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of that consultation.\n (7) The rules may provide for the collection and recovery of charges imposed by the Product Emissions Standards (Customs) Charges Act 2017 and the Product Emissions Standards (Excise) Charges Act 2017.","sortOrder":19},{"sectionNumber":"15","sectionType":"section","heading":"Supply of product that is not certified","content":"#### 15 Supply of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.","sortOrder":20},{"sectionNumber":"16","sectionType":"section","heading":"Supply of product that is not marked as required","content":"#### 16 Supply of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.","sortOrder":21},{"sectionNumber":"Division 4","sectionType":"division","heading":"Marking emissions‑controlled products","content":"An Act to improve air quality by regulating emissions from certain products, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Product Emissions Standards Act 2017.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The day after this Act receives the Royal Assent.

15 September 2017

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Objects of this Act\n\n The objects of this Act are:\n (a) to regulate emissions from certain products by setting emissions standards; and\n (b) in doing so, to achieve either or both of the following:\n (i) contribute to improving air quality in Australia in order to deliver associated health and environmental benefits;\n (ii) assist in giving effect to Australia’s obligations under one or more of the Climate Change Conventions.\n\n> Note: For Climate Change Conventions, see section 7.\n\n#### 4 Simplified outline of this Act\n\nThis Act creates a framework for regulating emissions from products.\n\nThe Act provides for an emissions‑controlled product to be certified. To be certified, the product must meet an emissions standard.\n\nA person who imports or supplies an emissions‑controlled product that is not certified will commit an offence. There are also offences related to false or incorrect marking of products as certified. Civil penalties are included as alternatives to offences.\n\nProducts dealt with in breach of the Act are forfeited to the Commonwealth.\n\nThe rules may exempt persons or products from the operation of the Act.\n\nRecord‑keeping requirements and regulatory powers (mostly drawn from the Regulatory Powers Act) are included to assist in enforcing the Act.\n\nThe operation of the Act is to be reviewed periodically.\n\n#### 5 Extension to external Territories\n\n (1) This Act extends to every external Territory.\n (2) The Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be:\n (a) prosecuted for an offence; or\n (b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or\n (c) given an infringement notice under Part 5 of the Regulatory Powers Act.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.\n\n#### 7 Definitions\n\n (1) In this Act:\n\n> Australia includes the external Territories.\n\n> certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.\n\n> civil penalty provision has the same meaning as in the Regulatory Powers Act.\n\n> Climate Change Conventions means:\n\n (a) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992; and\n (b) the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997; and\n (c) the Paris Agreement, done at Paris on 12 December 2015;\n as amended and in force for Australia from time to time.\n\n> Note: The Convention, the Protocol and the Agreement are in Australian Treaty Series 1994 No. 2 (\\[1994\\] ATS 2), 2008 No. 2 (\\[2008\\] ATS 2) and 2016 No. 24 (\\[2016\\] ATS 24), respectively. In 2017 they could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)\n\n> emissions‑controlled product means a product that is prescribed by the rules for the purposes of section 9.\n\n> emissions standard means a standard dealing with matters relating to emissions from products.\n\n> engage in conduct includes omitting to perform an act.\n\n> evidential material has the same meaning as in the Regulatory Powers Act.\n\n> forfeiture notice has the meaning given by subsection 34(2).\n\n> inspector means a person appointed under section 41.\n\n> manufacture, for a product prescribed for the purposes of the definition of product, means produce by any method.\n\n> mark includes label.\n\n> person assisting an authorised person has the same meaning as in the Regulatory Powers Act.\n\n> product means a thing (including a substance or mixture of substances) that is:\n\n (a) manufactured; or\n (b) prescribed by the rules for the purposes of this definition.\n\n> regulatory authority includes a regulatory authority of, or located in, a foreign country.\n\n> Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.\n\n> reporting period, for an emissions‑controlled product, means a period prescribed by the rules.\n\n> rules means rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> supply, in relation to a product, has the meaning given by subsection (2).\n\n> this Act includes instruments made under this Act.\n\n (2) A supply of a product means a supply in the course of trading or commercial activities.\n (3) For the purposes of subsection (2), supply includes:\n (a) an offer to supply (including making available, exposing, displaying or advertising the product); and\n (b) a supply (including a resupply) by way of sale, exchange, gift, lease, loan, hire or hire‑purchase; and\n (c) a supply as part of the supply of another thing.\n (4) For the purposes of subsection (2), it is irrelevant whether the supply is:\n (a) for consideration; or\n (b) a wholesale or retail supply.\n\n## Part 2—Emissions‑controlled products\n\n#### 8 Simplified outline of this Part\n\nThe rules may prescribe a product as an emissions‑controlled product.\n\nThe rules may provide for an emissions‑controlled product to be certified. A minimum requirement for certification is that the product meets an emissions standard.\n\nThe rules may exempt persons or products from the operation of the Act.\n\n#### 9 Emissions‑controlled products\n\n The rules may prescribe a product as an emissions‑controlled product.\n\n#### 10 Certification\n\n (1) The rules may provide for an emissions‑controlled product to be certified for the purposes of this Act.\n Product must meet emissions standard\n (2) However, the rules must not provide for a product to be certified for the purposes of this Act unless:\n (a) the Secretary is satisfied that the product complies with an emissions standard set out in the rules for the product; or\n (b) the product is certified:\n (i) by a regulatory authority specified in the rules for the product; and\n (ii) as meeting an emissions standard specified in the rules for the product.\n\n> Note: For regulatory authority, see section 7.\n\n Other requirements\n (3) The rules may prescribe other requirements for, or in relation to, certifying a product for the purposes of this Act.\n (4) Without limiting subsection (3), the requirements may include requirements relating to the following:\n (a) applications for certification;\n (b) processes and criteria for certification, including testing;\n (c) processes for suspending or revoking certification;\n (d) the use of marks to indicate certification.\n\n> Note: The rules may provide for charging fees and for review of decisions: see subsection 51(2).\n\n#### 11 Exemptions\n\n (1) The rules may provide for the exemption of:\n (a) a specified emissions‑controlled product from one or more provisions of this Act; or\n (b) a specified emissions‑controlled product or person from one or more provisions of this Act in the circumstances set out in the rules.\n\n> Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (2) Without limiting paragraph (1)(b), the circumstances may include that a person has:\n (a) applied for and been granted an exemption; or\n (b) given the Secretary specified notice or information; or\n (c) taken other action required by the rules.\n (3) The rules may provide processes for, and other requirements in relation to, obtaining, varying, suspending or revoking exemptions.\n\n> Note: The rules may provide for charging fees: see subsection 51(2).\n\n (4) The rules may provide for the Secretary to make decisions in relation to exemptions, including deciding whether to grant an exemption.\n\n> Note: The rules may provide for review of decisions: see subsection 51(2).\n\n## Part 3—Enforcing product emissions standards\n\n### Division 1—Simplified outline of this Part\n\n#### 12 Simplified outline of this Part\n\nOffences and civil penalties apply:\n\n(a) if an emissions‑controlled product is imported or supplied and the product is not certified, or marked as required; and\n\n(b) for marking a product that is not certified, and for marking a product incorrectly.\n\n### Division 2—Importing emissions‑controlled products\n\n#### 13 Import of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 14 Import of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 3—Supplying emissions‑controlled products\n\n#### 15 Supply of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 16 Supply of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 4—Marking emissions‑controlled products\n\n#### 17 Marking product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules require the product to be marked if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the product is not so certified.\n (2) For the purposes of paragraph (1)(f), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 18 Incorrect marking of product\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules impose requirements for marking the product if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the mark is not in accordance with the requirements in the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n## Part 4—Record keeping\n\n#### 19 Simplified outline of this Part\n\nImporters and suppliers of emissions‑controlled products may be required to keep records and to give the Secretary the recorded information.\n\nReports may also be required on the supply of emissions‑controlled products manufactured in Australia.\n\n#### 20 Rules may provide record‑keeping requirements\n\n (1) The rules may require a person who imports or supplies emissions‑controlled products to make and keep records in relation to the imports or supplies.\n (2) A person contravenes this subsection if:\n (a) the rules require the person to make or keep a record; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (2).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (2).\n\nCivil penalty: 80 penalty units.\n\n#### 21 Secretary may require recorded information\n\n (1) The Secretary may, by notice in writing, require a person to give the Secretary information that the person is required by the rules to keep in a record, if the Secretary reasonably suspects that:\n (a) a provision of this Act has been contravened or is being contravened; and\n (b) the information is relevant to the suspected contravention.\n (2) The notice must:\n (a) identify the information that must be given to the Secretary; and\n (b) state the day the information must be given by, which must be a reasonable period after the notice is given to the person.\n (3) The Secretary may, on application by the person, change the day the information must be given by to a later day.\n (4) A person contravenes this subsection if:\n (a) the person is required to give information under this section; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (5) A person commits an offence of strict liability if the person contravenes subsection (4).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (6) A person is liable to a civil penalty if the person contravenes subsection (4).\n\nCivil penalty: 80 penalty units.\n\n#### 22 Reporting on supply of products manufactured in Australia\n\n (1) The rules may prescribe a reporting period for an emissions‑controlled product.\n (2) If, during a reporting period for an emissions‑controlled product that is manufactured in Australia, a person makes the first supply of the product, the person must give to the Secretary a report containing the information prescribed by the rules relating to such products that the person has so supplied during the reporting period.\n (3) The report must be given to the Secretary no later than 60 days after the end of the reporting period.\n (4) A reference to supply in subsection (2) does not include an offer to supply.\n\n> Note: For the usual definition of supply in this Act, see subsections 7(2) to (4).\n\n (5) A person contravenes this subsection if:\n (a) the person is required by subsection (2) to give a report to the Secretary for a reporting period for an emissions‑controlled product; and\n (b) the person does not give the Secretary the report in the period ending 60 days after the end of the reporting period.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 120 penalty units.\n\n## Part 5—Regulatory powers\n\n#### 23 Simplified outline of this Part\n\nThis Part applies the Regulatory Powers Act to the product emissions standards framework.\n\n#### 24 Monitoring powers\n\n (1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:\n (a) a provision of this Act; or\n (b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.\n\n (2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.\n\n (3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to offences and civil penalty provisions of this Act.\n\n#### 25 Investigation powers\n\n (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:\n (a) an offence provision of this Act; or\n (b) a civil penalty provision of this Act; or\n (c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.\n\n (2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to offences and civil penalty provisions of this Act.\n\n#### 26 Civil penalty provisions\n\n (1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.\n\n> Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\n (2) For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised applicant; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 27 Infringement notices\n\n (1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:\n (a) an offence provision of this Act that is an offence of strict liability;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.\n\n (2) For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an infringement officer; and\n (b) the Secretary is the relevant chief executive.\n\n#### 28 Enforceable undertakings\n\n (1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.\n\n (2) For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 29 Injunctions\n\n (1) The following provisions are enforceable under Part 7 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.\n\n (2) For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n## Part 6—Forfeiture of emissions‑controlled products\n\n### Division 1—Simplified outline of this Part\n\n#### 30 Simplified outline of this Part\n\nAn emissions‑controlled product is forfeited when a provision of Part 3 (relating to the import, supply or marking of the product) is contravened in relation to the product.\n\nAn emissions‑controlled product may also be forfeited when it has been seized as part of an investigation and an inspector reasonably suspects a provision in Part 3 has been contravened. A court may order the return of a product so seized, or that compensation be paid.\n\n### Division 2—Forfeiture following conviction or making of civil penalty order\n\n#### 31 Product forfeited to Commonwealth\n\n (1) This section applies if a person is convicted of an offence, or ordered to pay a civil penalty, for contravening a provision of Part 3.\n (2) The product concerned is forfeited to the Commonwealth.\n\n#### 32 Power to seize forfeited product\n\n (1) An inspector may seize a product that is forfeited under section 31.\n (2) Without limiting subsection (1), the product may be seized by attaching to the product, or to the container in which the product is held, a notice in writing signed by the inspector that:\n (a) identifies the product; and\n (b) states that the product has been seized under this section; and\n (c) specifies the reason for the seizure.\n (3) An inspector must give a copy of the notice as soon as practicable to the owner of the product or the person from whom the product was seized.\n\n#### 33 Person must not interfere with seized product\n\n (1) A person commits an offence if:\n (a) the person engages in conduct; and\n (b) the conduct causes an emissions‑controlled product to be moved, altered or interfered with; and\n (c) the product is the subject of a notice under subsection 32(2).\n\nPenalty: Imprisonment for 6 months.\n\n (2) Subsection (1) does not apply if the person engages in the conduct in accordance with a direction given to the person by the Minister.\n\n> Note: The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.\n\n (3) A person commits an offence if:\n (a) the person is given a notice under subsection 32(3); and\n (b) the person does not take all reasonable precautions to prevent the product being moved, altered or interfered with except in accordance with a direction given by the Minister.\n\nPenalty: Imprisonment for 6 months.\n\n### Division 3—Forfeiture of seized products\n\n#### 34 Forfeiture notices\n\n (1) This section applies if:\n (a) an inspector seizes an emissions‑controlled product under Part 3 of the Regulatory Powers Act as it applies in relation to this Act; and\n (b) the inspector reasonably suspects that a provision of Part 3 of this Act was contravened in relation to the product.\n (2) The inspector may, within 7 days after the product is seized, give a written notice (the forfeiture notice) to the owner of the product.\n (3) If the owner of the product cannot be identified after reasonable inquiry, the inspector may give the forfeiture notice to the person from whom the product was seized.\n (4) The notice must:\n (a) identify the product; and\n (b) state that the product has been seized; and\n (c) specify the reason for the seizure; and\n (d) state that the product will be forfeited to the Commonwealth unless a court, on application under section 35, orders the product to be returned.\n\n#### 35 Claims for return of seized product\n\n (1) This section applies if a forfeiture notice is given in relation to an emissions‑controlled product.\n (2) The owner of the product or the person from whom the product was seized may apply to one of the following for an order that the product be returned:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) The application must be made within 60 days after the forfeiture notice is given.\n (4) The court must order that the product be returned if:\n (a) an application for the order was made in accordance with this section; and\n (b) the court is satisfied that no provision of Part 3 was contravened in relation to the product.\n (5) If the court orders that the product be returned, the Commonwealth must take reasonable steps to return the product to the applicant.\n (6) Subsection (5) does not apply if:\n (a) proceedings for which the product may provide evidence were instituted before the order was made, and have not been completed (including any appeal); or\n (b) returning the product could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or\n (c) an inspector is otherwise authorised (by a law or an order of a court) to retain, destroy or dispose of the product.\n\n#### 36 Forfeiture of seized product to the Commonwealth\n\n A product in relation to which a forfeiture notice is given is forfeited to the Commonwealth if:\n (a) no application has been made under section 35 for an order that the product be returned; or\n (b) such an application has been made, and the court decides not to so order.\n\n#### 37 Right of compensation in certain circumstances\n\n (1) The person who owned an emissions‑controlled product forfeited to the Commonwealth under section 36 may apply to one of the following for compensation:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (2) The court must order that the Commonwealth pay compensation to the applicant if the court is satisfied that:\n (a) the applicant owned the product immediately before it was forfeited; and\n (b) either:\n (i) Part 3 of the Regulatory Powers Act, as it applies in relation to this Act, was not complied with in relation to the seizure of the product; or\n (ii) if the product was forfeited under paragraph 36(a)—no provision of Part 3 of this Act was contravened in relation to the product.\n (3) The amount of compensation must be the market value of the product at the time the product was forfeited under section 36.\n\n### Division 4—General provisions\n\n#### 38 Forfeited products become property of Commonwealth\n\n Products forfeited to the Commonwealth under section 31 or 36 become the property of the Commonwealth.\n\n#### 39 Disposal of forfeited products\n\n (1) Products forfeited under section 31 or 36 must be dealt with and disposed of in accordance with the directions of the Minister.\n (2) The forfeited products must not be sold.\n\n## Part 7—Miscellaneous\n\n#### 40 Simplified outline of this Part\n\nThis Part deals with the appointment of inspectors, the publication and disclosure of information, and the conduct of audits to ensure compliance with this Act.\n\nIt also provides for the delegation of powers, requires periodic reviews of the operation of the Act, and enables the Minister to make rules.\n\n#### 41 Inspectors\n\n (1) The Secretary may, in writing, appoint an APS employee as an inspector for the purposes of this Act.\n (2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.\n (3) An inspector must, in performing functions or exercising powers as an inspector, comply with any directions of the Secretary.\n (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.\n\n#### 42 Publication of information relating to certifications and exemptions\n\n (1) The Secretary may publish information relating to an emissions‑controlled product that is certified for the purposes of this Act, including but not limited to:\n (a) information that identifies the product and the manufacturer of the product; and\n (b) information about emissions from the product; and\n (c) information about the certification.\n (2) The Secretary may publish information relating to an exemption of an emissions‑controlled product or a person from a provision of this Act, including but not limited to:\n (a) circumstances in which the exemption applies; and\n (b) reasons for the exemption; and\n (c) the person who applied for the exemption.\n\n#### 43 Disclosure of information\n\n (1) The Secretary may disclose information obtained under this Act to:\n (a) the Australian Border Force (within the meaning of the Australian Border Force Act 2015); or\n (b) an agency, body or person prescribed by the rules;\n if the Secretary reasonably believes that the information will enable or assist the agency, body or person to exercise its powers, or perform its functions or duties.\n\n> Note: Subsection 51(6) has requirements relating to rules made for the purposes of paragraph (b).\n\n (2) This section does not limit any other powers the Secretary has to disclose information to a person.\n\n#### 44 Compliance audits\n\n (1) This section applies if the Minister:\n (a) reasonably suspects that a person has engaged or is engaging in conduct that constitutes:\n (i) an offence against this Act; or\n (ii) a contravention of a civil penalty provision; and\n (b) is satisfied that it would be in the public interest to give the person a notice under this section.\n (2) The Minister may, by written notice given to the person, require the person:\n (a) to undertake, or arrange for another person to undertake, an audit of whichever of the following is specified in the notice:\n (i) the person’s compliance with this Act;\n (ii) one or more specified aspects of the person’s compliance with this Act; and\n (b) to give the Minister a written report setting out the results of the audit.\n (3) The notice must specify:\n (a) if the notice requires the person to arrange another person to undertake the audit—requirements relating to the qualifications and independence of the other person; and\n (b) the matters to be covered by the audit; and\n (c) the period within which the audit must be undertaken; and\n (d) the form and content of the report; and\n (e) the period within which the report must be given to the Minister.\n (4) A notice under subsection (2) is not a legislative instrument.\n (5) A person contravenes this subsection if the person is subject to a requirement under subsection (2) and the person fails to comply with the requirement.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 80 penalty units.\n\n#### 45 Delegation by the Minister\n\n (1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act (except section 51) to:\n (a) the Secretary; or\n (b) an SES employee, or acting SES employee, in the Department.\n\n> Note 1: Section 51 gives the Minister power to make rules.\n\n> Note 2: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Minister.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 46 Delegation by the Secretary\n\n (1) The Secretary may, by writing, delegate all or any of his or her powers or functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act, to:\n (a) an SES employee or acting SES employee in the Department; or\n (b) an APS employee who occupies, or performs the duties of, a position not below Executive Level 2 or equivalent in the Department.\n\n> Note: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 47 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken as soon as possible after the seventh anniversary of its commencement and afterwards at intervals of no longer than 10 years.\n (2) The person undertaking a review must give the Minister a written report of the review.\n (3) The Minister must cause a copy of the report of a review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.\n\n#### 48 Physical elements of offences\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.\n (2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.\n\n> Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.\n\n#### 49 Contravening offence and civil penalty provisions\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.\n (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.\n\n#### 50 Alternative constitutional bases\n\n (1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.\n (2) To avoid doubt, no subsection of this section limits the operation of any other subsection.\n Import\n (3) This Act has the effect it would have if each reference to import were expressly confined to import in the course of trade or commerce.\n Supply\n (4) This Act has the effect it would have if each reference to supply were expressly confined to supply in the course of trade or commerce:\n (a) between Australia and places outside Australia; or\n (b) among the States; or\n (c) within a Territory, between a State and a Territory or between 2 Territories.\n Corporations power\n (5) This Act has the effect it would have if each reference to a person were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) Without limiting subsection (1), the rules may provide for:\n (a) charging fees for services provided in the performance of functions under this Act; and\n (b) the review of decisions made under this Act.\n (3) Rules setting out an emissions standard for the purposes of paragraph 10(2)(a) may apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time if the instrument or writing is produced by one or more of the following:\n (a) the International Electrotechnical Commission;\n (b) the International Organization for Standardization;\n (c) the United Nations Economic Commission for Europe;\n (d) any other organisation prescribed by the rules.\n (4) Rules specifying an emissions standard for the purposes of subparagraph 10(2)(b)(ii) may specify a standard as in force or existing from time to time.\n (5) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.\n (6) Before making rules for the purposes of paragraph 43(1)(b), the Minister must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of that consultation.\n (7) The rules may provide for the collection and recovery of charges imposed by the Product Emissions Standards (Customs) Charges Act 2017 and the Product Emissions Standards (Excise) Charges Act 2017.","sortOrder":22},{"sectionNumber":"17","sectionType":"section","heading":"Marking product that is not certified","content":"#### 17 Marking product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules require the product to be marked if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the product is not so certified.\n (2) For the purposes of paragraph (1)(f), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.","sortOrder":23},{"sectionNumber":"18","sectionType":"section","heading":"Incorrect marking of product","content":"#### 18 Incorrect marking of product\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules impose requirements for marking the product if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the mark is not in accordance with the requirements in the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.","sortOrder":24},{"sectionNumber":"Part 4","sectionType":"part","heading":"Record keeping","content":"## Part 4—Record keeping","sortOrder":25},{"sectionNumber":"19","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 19 Simplified outline of this Part\n\nImporters and suppliers of emissions‑controlled products may be required to keep records and to give the Secretary the recorded information.\n\nReports may also be required on the supply of emissions‑controlled products manufactured in Australia.","sortOrder":26},{"sectionNumber":"20","sectionType":"section","heading":"Rules may provide record‑keeping requirements","content":"#### 20 Rules may provide record‑keeping requirements\n\n (1) The rules may require a person who imports or supplies emissions‑controlled products to make and keep records in relation to the imports or supplies.\n (2) A person contravenes this subsection if:\n (a) the rules require the person to make or keep a record; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (2).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (2).\n\nCivil penalty: 80 penalty units.","sortOrder":27},{"sectionNumber":"21","sectionType":"section","heading":"Secretary may require recorded information","content":"#### 21 Secretary may require recorded information\n\n (1) The Secretary may, by notice in writing, require a person to give the Secretary information that the person is required by the rules to keep in a record, if the Secretary reasonably suspects that:\n (a) a provision of this Act has been contravened or is being contravened; and\n (b) the information is relevant to the suspected contravention.\n (2) The notice must:\n (a) identify the information that must be given to the Secretary; and\n (b) state the day the information must be given by, which must be a reasonable period after the notice is given to the person.\n (3) The Secretary may, on application by the person, change the day the information must be given by to a later day.\n (4) A person contravenes this subsection if:\n (a) the person is required to give information under this section; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (5) A person commits an offence of strict liability if the person contravenes subsection (4).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (6) A person is liable to a civil penalty if the person contravenes subsection (4).\n\nCivil penalty: 80 penalty units.","sortOrder":28},{"sectionNumber":"22","sectionType":"section","heading":"Reporting on supply of products manufactured in Australia","content":"#### 22 Reporting on supply of products manufactured in Australia\n\n (1) The rules may prescribe a reporting period for an emissions‑controlled product.\n (2) If, during a reporting period for an emissions‑controlled product that is manufactured in Australia, a person makes the first supply of the product, the person must give to the Secretary a report containing the information prescribed by the rules relating to such products that the person has so supplied during the reporting period.\n (3) The report must be given to the Secretary no later than 60 days after the end of the reporting period.\n (4) A reference to supply in subsection (2) does not include an offer to supply.\n\n> Note: For the usual definition of supply in this Act, see subsections 7(2) to (4).\n\n (5) A person contravenes this subsection if:\n (a) the person is required by subsection (2) to give a report to the Secretary for a reporting period for an emissions‑controlled product; and\n (b) the person does not give the Secretary the report in the period ending 60 days after the end of the reporting period.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 120 penalty units.","sortOrder":29},{"sectionNumber":"Part 5","sectionType":"part","heading":"Regulatory powers","content":"## Part 5—Regulatory powers","sortOrder":30},{"sectionNumber":"23","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 23 Simplified outline of this Part\n\nThis Part applies the Regulatory Powers Act to the product emissions standards framework.","sortOrder":31},{"sectionNumber":"24","sectionType":"section","heading":"Monitoring powers","content":"#### 24 Monitoring powers\n\n (1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:\n (a) a provision of this Act; or\n (b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.\n\n (2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.\n\n (3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to offences and civil penalty provisions of this Act.","sortOrder":32},{"sectionNumber":"25","sectionType":"section","heading":"Investigation powers","content":"#### 25 Investigation powers\n\n (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:\n (a) an offence provision of this Act; or\n (b) a civil penalty provision of this Act; or\n (c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.\n\n (2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to offences and civil penalty provisions of this Act.","sortOrder":33},{"sectionNumber":"26","sectionType":"section","heading":"Civil penalty provisions","content":"#### 26 Civil penalty provisions\n\n (1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.\n\n> Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\n (2) For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised applicant; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.","sortOrder":34},{"sectionNumber":"27","sectionType":"section","heading":"Infringement notices","content":"#### 27 Infringement notices\n\n (1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:\n (a) an offence provision of this Act that is an offence of strict liability;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.\n\n (2) For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an infringement officer; and\n (b) the Secretary is the relevant chief executive.","sortOrder":35},{"sectionNumber":"28","sectionType":"section","heading":"Enforceable undertakings","content":"#### 28 Enforceable undertakings\n\n (1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.\n\n (2) For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.","sortOrder":36},{"sectionNumber":"29","sectionType":"section","heading":"Injunctions","content":"#### 29 Injunctions\n\n (1) The following provisions are enforceable under Part 7 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.\n\n (2) For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.","sortOrder":37},{"sectionNumber":"Part 6","sectionType":"part","heading":"Forfeiture of emissions‑controlled products","content":"An Act to improve air quality by regulating emissions from certain products, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n This Act is the Product Emissions Standards Act 2017.\n\n#### 2 Commencement\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n```html\n

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this Act

The day after this Act receives the Royal Assent.

15 September 2017

\n```\n\n> Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.\n\n (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.\n\n#### 3 Objects of this Act\n\n The objects of this Act are:\n (a) to regulate emissions from certain products by setting emissions standards; and\n (b) in doing so, to achieve either or both of the following:\n (i) contribute to improving air quality in Australia in order to deliver associated health and environmental benefits;\n (ii) assist in giving effect to Australia’s obligations under one or more of the Climate Change Conventions.\n\n> Note: For Climate Change Conventions, see section 7.\n\n#### 4 Simplified outline of this Act\n\nThis Act creates a framework for regulating emissions from products.\n\nThe Act provides for an emissions‑controlled product to be certified. To be certified, the product must meet an emissions standard.\n\nA person who imports or supplies an emissions‑controlled product that is not certified will commit an offence. There are also offences related to false or incorrect marking of products as certified. Civil penalties are included as alternatives to offences.\n\nProducts dealt with in breach of the Act are forfeited to the Commonwealth.\n\nThe rules may exempt persons or products from the operation of the Act.\n\nRecord‑keeping requirements and regulatory powers (mostly drawn from the Regulatory Powers Act) are included to assist in enforcing the Act.\n\nThe operation of the Act is to be reviewed periodically.\n\n#### 5 Extension to external Territories\n\n (1) This Act extends to every external Territory.\n (2) The Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n (1) This Act binds the Crown in each of its capacities.\n (2) This Act does not make the Crown liable to be:\n (a) prosecuted for an offence; or\n (b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act; or\n (c) given an infringement notice under Part 5 of the Regulatory Powers Act.\n (3) The protection in subsection (2) does not apply to an authority of the Crown.\n\n#### 7 Definitions\n\n (1) In this Act:\n\n> Australia includes the external Territories.\n\n> certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.\n\n> civil penalty provision has the same meaning as in the Regulatory Powers Act.\n\n> Climate Change Conventions means:\n\n (a) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992; and\n (b) the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997; and\n (c) the Paris Agreement, done at Paris on 12 December 2015;\n as amended and in force for Australia from time to time.\n\n> Note: The Convention, the Protocol and the Agreement are in Australian Treaty Series 1994 No. 2 (\\[1994\\] ATS 2), 2008 No. 2 (\\[2008\\] ATS 2) and 2016 No. 24 (\\[2016\\] ATS 24), respectively. In 2017 they could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)\n\n> emissions‑controlled product means a product that is prescribed by the rules for the purposes of section 9.\n\n> emissions standard means a standard dealing with matters relating to emissions from products.\n\n> engage in conduct includes omitting to perform an act.\n\n> evidential material has the same meaning as in the Regulatory Powers Act.\n\n> forfeiture notice has the meaning given by subsection 34(2).\n\n> inspector means a person appointed under section 41.\n\n> manufacture, for a product prescribed for the purposes of the definition of product, means produce by any method.\n\n> mark includes label.\n\n> person assisting an authorised person has the same meaning as in the Regulatory Powers Act.\n\n> product means a thing (including a substance or mixture of substances) that is:\n\n (a) manufactured; or\n (b) prescribed by the rules for the purposes of this definition.\n\n> regulatory authority includes a regulatory authority of, or located in, a foreign country.\n\n> Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.\n\n> reporting period, for an emissions‑controlled product, means a period prescribed by the rules.\n\n> rules means rules made under section 51.\n\n> Secretary means the Secretary of the Department.\n\n> supply, in relation to a product, has the meaning given by subsection (2).\n\n> this Act includes instruments made under this Act.\n\n (2) A supply of a product means a supply in the course of trading or commercial activities.\n (3) For the purposes of subsection (2), supply includes:\n (a) an offer to supply (including making available, exposing, displaying or advertising the product); and\n (b) a supply (including a resupply) by way of sale, exchange, gift, lease, loan, hire or hire‑purchase; and\n (c) a supply as part of the supply of another thing.\n (4) For the purposes of subsection (2), it is irrelevant whether the supply is:\n (a) for consideration; or\n (b) a wholesale or retail supply.\n\n## Part 2—Emissions‑controlled products\n\n#### 8 Simplified outline of this Part\n\nThe rules may prescribe a product as an emissions‑controlled product.\n\nThe rules may provide for an emissions‑controlled product to be certified. A minimum requirement for certification is that the product meets an emissions standard.\n\nThe rules may exempt persons or products from the operation of the Act.\n\n#### 9 Emissions‑controlled products\n\n The rules may prescribe a product as an emissions‑controlled product.\n\n#### 10 Certification\n\n (1) The rules may provide for an emissions‑controlled product to be certified for the purposes of this Act.\n Product must meet emissions standard\n (2) However, the rules must not provide for a product to be certified for the purposes of this Act unless:\n (a) the Secretary is satisfied that the product complies with an emissions standard set out in the rules for the product; or\n (b) the product is certified:\n (i) by a regulatory authority specified in the rules for the product; and\n (ii) as meeting an emissions standard specified in the rules for the product.\n\n> Note: For regulatory authority, see section 7.\n\n Other requirements\n (3) The rules may prescribe other requirements for, or in relation to, certifying a product for the purposes of this Act.\n (4) Without limiting subsection (3), the requirements may include requirements relating to the following:\n (a) applications for certification;\n (b) processes and criteria for certification, including testing;\n (c) processes for suspending or revoking certification;\n (d) the use of marks to indicate certification.\n\n> Note: The rules may provide for charging fees and for review of decisions: see subsection 51(2).\n\n#### 11 Exemptions\n\n (1) The rules may provide for the exemption of:\n (a) a specified emissions‑controlled product from one or more provisions of this Act; or\n (b) a specified emissions‑controlled product or person from one or more provisions of this Act in the circumstances set out in the rules.\n\n> Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.\n\n (2) Without limiting paragraph (1)(b), the circumstances may include that a person has:\n (a) applied for and been granted an exemption; or\n (b) given the Secretary specified notice or information; or\n (c) taken other action required by the rules.\n (3) The rules may provide processes for, and other requirements in relation to, obtaining, varying, suspending or revoking exemptions.\n\n> Note: The rules may provide for charging fees: see subsection 51(2).\n\n (4) The rules may provide for the Secretary to make decisions in relation to exemptions, including deciding whether to grant an exemption.\n\n> Note: The rules may provide for review of decisions: see subsection 51(2).\n\n## Part 3—Enforcing product emissions standards\n\n### Division 1—Simplified outline of this Part\n\n#### 12 Simplified outline of this Part\n\nOffences and civil penalties apply:\n\n(a) if an emissions‑controlled product is imported or supplied and the product is not certified, or marked as required; and\n\n(b) for marking a product that is not certified, and for marking a product incorrectly.\n\n### Division 2—Importing emissions‑controlled products\n\n#### 13 Import of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 14 Import of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person imports a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 3—Supplying emissions‑controlled products\n\n#### 15 Supply of product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product; and\n (c) the product is not certified for the purposes of this Act.\n (2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 16 Supply of product that is not marked as required\n\n (1) A person contravenes this subsection if:\n (a) the person supplies a product; and\n (b) the product is an emissions‑controlled product that is certified for the purposes of this Act; and\n (c) the rules impose requirements for marking the product; and\n (d) the product is not marked in the way required by the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n### Division 4—Marking emissions‑controlled products\n\n#### 17 Marking product that is not certified\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules require the product to be marked if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the product is not so certified.\n (2) For the purposes of paragraph (1)(f), a product is taken to be not certified if the certification of the product is suspended.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n#### 18 Incorrect marking of product\n\n (1) A person contravenes this subsection if:\n (a) the person applies a mark to a product; and\n (b) the product is to be imported into, or supplied in, Australia; and\n (c) the product is an emissions‑controlled product; and\n (d) the rules impose requirements for marking the product if the product is certified for the purposes of this Act; and\n (e) the mark indicates that the product is so certified; and\n (f) the mark is not in accordance with the requirements in the rules.\n Strict liability offence\n (2) A person commits an offence of strict liability if the person contravenes subsection (1).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (3) A person is liable to a civil penalty if the person contravenes subsection (1).\n\nCivil penalty: 120 penalty units.\n\n## Part 4—Record keeping\n\n#### 19 Simplified outline of this Part\n\nImporters and suppliers of emissions‑controlled products may be required to keep records and to give the Secretary the recorded information.\n\nReports may also be required on the supply of emissions‑controlled products manufactured in Australia.\n\n#### 20 Rules may provide record‑keeping requirements\n\n (1) The rules may require a person who imports or supplies emissions‑controlled products to make and keep records in relation to the imports or supplies.\n (2) A person contravenes this subsection if:\n (a) the rules require the person to make or keep a record; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (3) A person commits an offence of strict liability if the person contravenes subsection (2).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (4) A person is liable to a civil penalty if the person contravenes subsection (2).\n\nCivil penalty: 80 penalty units.\n\n#### 21 Secretary may require recorded information\n\n (1) The Secretary may, by notice in writing, require a person to give the Secretary information that the person is required by the rules to keep in a record, if the Secretary reasonably suspects that:\n (a) a provision of this Act has been contravened or is being contravened; and\n (b) the information is relevant to the suspected contravention.\n (2) The notice must:\n (a) identify the information that must be given to the Secretary; and\n (b) state the day the information must be given by, which must be a reasonable period after the notice is given to the person.\n (3) The Secretary may, on application by the person, change the day the information must be given by to a later day.\n (4) A person contravenes this subsection if:\n (a) the person is required to give information under this section; and\n (b) the person fails to comply with the requirement.\n Strict liability offence\n (5) A person commits an offence of strict liability if the person contravenes subsection (4).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (6) A person is liable to a civil penalty if the person contravenes subsection (4).\n\nCivil penalty: 80 penalty units.\n\n#### 22 Reporting on supply of products manufactured in Australia\n\n (1) The rules may prescribe a reporting period for an emissions‑controlled product.\n (2) If, during a reporting period for an emissions‑controlled product that is manufactured in Australia, a person makes the first supply of the product, the person must give to the Secretary a report containing the information prescribed by the rules relating to such products that the person has so supplied during the reporting period.\n (3) The report must be given to the Secretary no later than 60 days after the end of the reporting period.\n (4) A reference to supply in subsection (2) does not include an offer to supply.\n\n> Note: For the usual definition of supply in this Act, see subsections 7(2) to (4).\n\n (5) A person contravenes this subsection if:\n (a) the person is required by subsection (2) to give a report to the Secretary for a reporting period for an emissions‑controlled product; and\n (b) the person does not give the Secretary the report in the period ending 60 days after the end of the reporting period.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 60 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 120 penalty units.\n\n## Part 5—Regulatory powers\n\n#### 23 Simplified outline of this Part\n\nThis Part applies the Regulatory Powers Act to the product emissions standards framework.\n\n#### 24 Monitoring powers\n\n (1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:\n (a) a provision of this Act; or\n (b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.\n\n (2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.\n\n> Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.\n\n (3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to offences and civil penalty provisions of this Act.\n\n#### 25 Investigation powers\n\n (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:\n (a) an offence provision of this Act; or\n (b) a civil penalty provision of this Act; or\n (c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.\n\n> Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.\n\n (2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) there are no related provisions; and\n (b) an inspector is an authorised applicant; and\n (c) an inspector is an authorised person; and\n (d) a magistrate is an issuing officer; and\n (e) the Secretary is the relevant chief executive; and\n (f) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to offences and civil penalty provisions of this Act.\n\n#### 26 Civil penalty provisions\n\n (1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.\n\n> Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.\n\n (2) For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised applicant; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 27 Infringement notices\n\n (1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:\n (a) an offence provision of this Act that is an offence of strict liability;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.\n\n (2) For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an infringement officer; and\n (b) the Secretary is the relevant chief executive.\n\n#### 28 Enforceable undertakings\n\n (1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.\n\n (2) For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n#### 29 Injunctions\n\n (1) The following provisions are enforceable under Part 7 of the Regulatory Powers Act:\n (a) an offence provision of this Act;\n (b) a civil penalty provision of this Act.\n\n> Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.\n\n (2) For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to this Act:\n (a) an inspector is an authorised person; and\n (b) each of the following is a relevant court:\n (i) the Federal Court of Australia;\n (ii) the Federal Circuit and Family Court of Australia (Division 2);\n (iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n\n## Part 6—Forfeiture of emissions‑controlled products\n\n### Division 1—Simplified outline of this Part\n\n#### 30 Simplified outline of this Part\n\nAn emissions‑controlled product is forfeited when a provision of Part 3 (relating to the import, supply or marking of the product) is contravened in relation to the product.\n\nAn emissions‑controlled product may also be forfeited when it has been seized as part of an investigation and an inspector reasonably suspects a provision in Part 3 has been contravened. A court may order the return of a product so seized, or that compensation be paid.\n\n### Division 2—Forfeiture following conviction or making of civil penalty order\n\n#### 31 Product forfeited to Commonwealth\n\n (1) This section applies if a person is convicted of an offence, or ordered to pay a civil penalty, for contravening a provision of Part 3.\n (2) The product concerned is forfeited to the Commonwealth.\n\n#### 32 Power to seize forfeited product\n\n (1) An inspector may seize a product that is forfeited under section 31.\n (2) Without limiting subsection (1), the product may be seized by attaching to the product, or to the container in which the product is held, a notice in writing signed by the inspector that:\n (a) identifies the product; and\n (b) states that the product has been seized under this section; and\n (c) specifies the reason for the seizure.\n (3) An inspector must give a copy of the notice as soon as practicable to the owner of the product or the person from whom the product was seized.\n\n#### 33 Person must not interfere with seized product\n\n (1) A person commits an offence if:\n (a) the person engages in conduct; and\n (b) the conduct causes an emissions‑controlled product to be moved, altered or interfered with; and\n (c) the product is the subject of a notice under subsection 32(2).\n\nPenalty: Imprisonment for 6 months.\n\n (2) Subsection (1) does not apply if the person engages in the conduct in accordance with a direction given to the person by the Minister.\n\n> Note: The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.\n\n (3) A person commits an offence if:\n (a) the person is given a notice under subsection 32(3); and\n (b) the person does not take all reasonable precautions to prevent the product being moved, altered or interfered with except in accordance with a direction given by the Minister.\n\nPenalty: Imprisonment for 6 months.\n\n### Division 3—Forfeiture of seized products\n\n#### 34 Forfeiture notices\n\n (1) This section applies if:\n (a) an inspector seizes an emissions‑controlled product under Part 3 of the Regulatory Powers Act as it applies in relation to this Act; and\n (b) the inspector reasonably suspects that a provision of Part 3 of this Act was contravened in relation to the product.\n (2) The inspector may, within 7 days after the product is seized, give a written notice (the forfeiture notice) to the owner of the product.\n (3) If the owner of the product cannot be identified after reasonable inquiry, the inspector may give the forfeiture notice to the person from whom the product was seized.\n (4) The notice must:\n (a) identify the product; and\n (b) state that the product has been seized; and\n (c) specify the reason for the seizure; and\n (d) state that the product will be forfeited to the Commonwealth unless a court, on application under section 35, orders the product to be returned.\n\n#### 35 Claims for return of seized product\n\n (1) This section applies if a forfeiture notice is given in relation to an emissions‑controlled product.\n (2) The owner of the product or the person from whom the product was seized may apply to one of the following for an order that the product be returned:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) The application must be made within 60 days after the forfeiture notice is given.\n (4) The court must order that the product be returned if:\n (a) an application for the order was made in accordance with this section; and\n (b) the court is satisfied that no provision of Part 3 was contravened in relation to the product.\n (5) If the court orders that the product be returned, the Commonwealth must take reasonable steps to return the product to the applicant.\n (6) Subsection (5) does not apply if:\n (a) proceedings for which the product may provide evidence were instituted before the order was made, and have not been completed (including any appeal); or\n (b) returning the product could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or\n (c) an inspector is otherwise authorised (by a law or an order of a court) to retain, destroy or dispose of the product.\n\n#### 36 Forfeiture of seized product to the Commonwealth\n\n A product in relation to which a forfeiture notice is given is forfeited to the Commonwealth if:\n (a) no application has been made under section 35 for an order that the product be returned; or\n (b) such an application has been made, and the court decides not to so order.\n\n#### 37 Right of compensation in certain circumstances\n\n (1) The person who owned an emissions‑controlled product forfeited to the Commonwealth under section 36 may apply to one of the following for compensation:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (2) The court must order that the Commonwealth pay compensation to the applicant if the court is satisfied that:\n (a) the applicant owned the product immediately before it was forfeited; and\n (b) either:\n (i) Part 3 of the Regulatory Powers Act, as it applies in relation to this Act, was not complied with in relation to the seizure of the product; or\n (ii) if the product was forfeited under paragraph 36(a)—no provision of Part 3 of this Act was contravened in relation to the product.\n (3) The amount of compensation must be the market value of the product at the time the product was forfeited under section 36.\n\n### Division 4—General provisions\n\n#### 38 Forfeited products become property of Commonwealth\n\n Products forfeited to the Commonwealth under section 31 or 36 become the property of the Commonwealth.\n\n#### 39 Disposal of forfeited products\n\n (1) Products forfeited under section 31 or 36 must be dealt with and disposed of in accordance with the directions of the Minister.\n (2) The forfeited products must not be sold.\n\n## Part 7—Miscellaneous\n\n#### 40 Simplified outline of this Part\n\nThis Part deals with the appointment of inspectors, the publication and disclosure of information, and the conduct of audits to ensure compliance with this Act.\n\nIt also provides for the delegation of powers, requires periodic reviews of the operation of the Act, and enables the Minister to make rules.\n\n#### 41 Inspectors\n\n (1) The Secretary may, in writing, appoint an APS employee as an inspector for the purposes of this Act.\n (2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.\n (3) An inspector must, in performing functions or exercising powers as an inspector, comply with any directions of the Secretary.\n (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.\n\n#### 42 Publication of information relating to certifications and exemptions\n\n (1) The Secretary may publish information relating to an emissions‑controlled product that is certified for the purposes of this Act, including but not limited to:\n (a) information that identifies the product and the manufacturer of the product; and\n (b) information about emissions from the product; and\n (c) information about the certification.\n (2) The Secretary may publish information relating to an exemption of an emissions‑controlled product or a person from a provision of this Act, including but not limited to:\n (a) circumstances in which the exemption applies; and\n (b) reasons for the exemption; and\n (c) the person who applied for the exemption.\n\n#### 43 Disclosure of information\n\n (1) The Secretary may disclose information obtained under this Act to:\n (a) the Australian Border Force (within the meaning of the Australian Border Force Act 2015); or\n (b) an agency, body or person prescribed by the rules;\n if the Secretary reasonably believes that the information will enable or assist the agency, body or person to exercise its powers, or perform its functions or duties.\n\n> Note: Subsection 51(6) has requirements relating to rules made for the purposes of paragraph (b).\n\n (2) This section does not limit any other powers the Secretary has to disclose information to a person.\n\n#### 44 Compliance audits\n\n (1) This section applies if the Minister:\n (a) reasonably suspects that a person has engaged or is engaging in conduct that constitutes:\n (i) an offence against this Act; or\n (ii) a contravention of a civil penalty provision; and\n (b) is satisfied that it would be in the public interest to give the person a notice under this section.\n (2) The Minister may, by written notice given to the person, require the person:\n (a) to undertake, or arrange for another person to undertake, an audit of whichever of the following is specified in the notice:\n (i) the person’s compliance with this Act;\n (ii) one or more specified aspects of the person’s compliance with this Act; and\n (b) to give the Minister a written report setting out the results of the audit.\n (3) The notice must specify:\n (a) if the notice requires the person to arrange another person to undertake the audit—requirements relating to the qualifications and independence of the other person; and\n (b) the matters to be covered by the audit; and\n (c) the period within which the audit must be undertaken; and\n (d) the form and content of the report; and\n (e) the period within which the report must be given to the Minister.\n (4) A notice under subsection (2) is not a legislative instrument.\n (5) A person contravenes this subsection if the person is subject to a requirement under subsection (2) and the person fails to comply with the requirement.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 80 penalty units.\n\n#### 45 Delegation by the Minister\n\n (1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act (except section 51) to:\n (a) the Secretary; or\n (b) an SES employee, or acting SES employee, in the Department.\n\n> Note 1: Section 51 gives the Minister power to make rules.\n\n> Note 2: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Minister.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 46 Delegation by the Secretary\n\n (1) The Secretary may, by writing, delegate all or any of his or her powers or functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act, to:\n (a) an SES employee or acting SES employee in the Department; or\n (b) an APS employee who occupies, or performs the duties of, a position not below Executive Level 2 or equivalent in the Department.\n\n> Note: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.\n\n#### 47 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken as soon as possible after the seventh anniversary of its commencement and afterwards at intervals of no longer than 10 years.\n (2) The person undertaking a review must give the Minister a written report of the review.\n (3) The Minister must cause a copy of the report of a review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.\n\n#### 48 Physical elements of offences\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.\n (2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.\n\n> Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.\n\n#### 49 Contravening offence and civil penalty provisions\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.\n (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.\n\n#### 50 Alternative constitutional bases\n\n (1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.\n (2) To avoid doubt, no subsection of this section limits the operation of any other subsection.\n Import\n (3) This Act has the effect it would have if each reference to import were expressly confined to import in the course of trade or commerce.\n Supply\n (4) This Act has the effect it would have if each reference to supply were expressly confined to supply in the course of trade or commerce:\n (a) between Australia and places outside Australia; or\n (b) among the States; or\n (c) within a Territory, between a State and a Territory or between 2 Territories.\n Corporations power\n (5) This Act has the effect it would have if each reference to a person were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.\n\n#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) Without limiting subsection (1), the rules may provide for:\n (a) charging fees for services provided in the performance of functions under this Act; and\n (b) the review of decisions made under this Act.\n (3) Rules setting out an emissions standard for the purposes of paragraph 10(2)(a) may apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time if the instrument or writing is produced by one or more of the following:\n (a) the International Electrotechnical Commission;\n (b) the International Organization for Standardization;\n (c) the United Nations Economic Commission for Europe;\n (d) any other organisation prescribed by the rules.\n (4) Rules specifying an emissions standard for the purposes of subparagraph 10(2)(b)(ii) may specify a standard as in force or existing from time to time.\n (5) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.\n (6) Before making rules for the purposes of paragraph 43(1)(b), the Minister must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of that consultation.\n (7) The rules may provide for the collection and recovery of charges imposed by the Product Emissions Standards (Customs) Charges Act 2017 and the Product Emissions Standards (Excise) Charges Act 2017.","sortOrder":38},{"sectionNumber":"30","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 30 Simplified outline of this Part\n\nAn emissions‑controlled product is forfeited when a provision of Part 3 (relating to the import, supply or marking of the product) is contravened in relation to the product.\n\nAn emissions‑controlled product may also be forfeited when it has been seized as part of an investigation and an inspector reasonably suspects a provision in Part 3 has been contravened. A court may order the return of a product so seized, or that compensation be paid.","sortOrder":40},{"sectionNumber":"31","sectionType":"section","heading":"Product forfeited to Commonwealth","content":"#### 31 Product forfeited to Commonwealth\n\n (1) This section applies if a person is convicted of an offence, or ordered to pay a civil penalty, for contravening a provision of Part 3.\n (2) The product concerned is forfeited to the Commonwealth.","sortOrder":42},{"sectionNumber":"32","sectionType":"section","heading":"Power to seize forfeited product","content":"#### 32 Power to seize forfeited product\n\n (1) An inspector may seize a product that is forfeited under section 31.\n (2) Without limiting subsection (1), the product may be seized by attaching to the product, or to the container in which the product is held, a notice in writing signed by the inspector that:\n (a) identifies the product; and\n (b) states that the product has been seized under this section; and\n (c) specifies the reason for the seizure.\n (3) An inspector must give a copy of the notice as soon as practicable to the owner of the product or the person from whom the product was seized.","sortOrder":43},{"sectionNumber":"33","sectionType":"section","heading":"Person must not interfere with seized product","content":"#### 33 Person must not interfere with seized product\n\n (1) A person commits an offence if:\n (a) the person engages in conduct; and\n (b) the conduct causes an emissions‑controlled product to be moved, altered or interfered with; and\n (c) the product is the subject of a notice under subsection 32(2).\n\nPenalty: Imprisonment for 6 months.\n\n (2) Subsection (1) does not apply if the person engages in the conduct in accordance with a direction given to the person by the Minister.\n\n> Note: The defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.\n\n (3) A person commits an offence if:\n (a) the person is given a notice under subsection 32(3); and\n (b) the person does not take all reasonable precautions to prevent the product being moved, altered or interfered with except in accordance with a direction given by the Minister.\n\nPenalty: Imprisonment for 6 months.","sortOrder":44},{"sectionNumber":"34","sectionType":"section","heading":"Forfeiture notices","content":"#### 34 Forfeiture notices\n\n (1) This section applies if:\n (a) an inspector seizes an emissions‑controlled product under Part 3 of the Regulatory Powers Act as it applies in relation to this Act; and\n (b) the inspector reasonably suspects that a provision of Part 3 of this Act was contravened in relation to the product.\n (2) The inspector may, within 7 days after the product is seized, give a written notice (the forfeiture notice) to the owner of the product.\n (3) If the owner of the product cannot be identified after reasonable inquiry, the inspector may give the forfeiture notice to the person from whom the product was seized.\n (4) The notice must:\n (a) identify the product; and\n (b) state that the product has been seized; and\n (c) specify the reason for the seizure; and\n (d) state that the product will be forfeited to the Commonwealth unless a court, on application under section 35, orders the product to be returned.","sortOrder":46},{"sectionNumber":"35","sectionType":"section","heading":"Claims for return of seized product","content":"#### 35 Claims for return of seized product\n\n (1) This section applies if a forfeiture notice is given in relation to an emissions‑controlled product.\n (2) The owner of the product or the person from whom the product was seized may apply to one of the following for an order that the product be returned:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (3) The application must be made within 60 days after the forfeiture notice is given.\n (4) The court must order that the product be returned if:\n (a) an application for the order was made in accordance with this section; and\n (b) the court is satisfied that no provision of Part 3 was contravened in relation to the product.\n (5) If the court orders that the product be returned, the Commonwealth must take reasonable steps to return the product to the applicant.\n (6) Subsection (5) does not apply if:\n (a) proceedings for which the product may provide evidence were instituted before the order was made, and have not been completed (including any appeal); or\n (b) returning the product could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or\n (c) an inspector is otherwise authorised (by a law or an order of a court) to retain, destroy or dispose of the product.","sortOrder":47},{"sectionNumber":"36","sectionType":"section","heading":"Forfeiture of seized product to the Commonwealth","content":"#### 36 Forfeiture of seized product to the Commonwealth\n\n A product in relation to which a forfeiture notice is given is forfeited to the Commonwealth if:\n (a) no application has been made under section 35 for an order that the product be returned; or\n (b) such an application has been made, and the court decides not to so order.","sortOrder":48},{"sectionNumber":"37","sectionType":"section","heading":"Right of compensation in certain circumstances","content":"#### 37 Right of compensation in certain circumstances\n\n (1) The person who owned an emissions‑controlled product forfeited to the Commonwealth under section 36 may apply to one of the following for compensation:\n (a) the Federal Court of Australia;\n (b) the Federal Circuit and Family Court of Australia (Division 2);\n (c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.\n (2) The court must order that the Commonwealth pay compensation to the applicant if the court is satisfied that:\n (a) the applicant owned the product immediately before it was forfeited; and\n (b) either:\n (i) Part 3 of the Regulatory Powers Act, as it applies in relation to this Act, was not complied with in relation to the seizure of the product; or\n (ii) if the product was forfeited under paragraph 36(a)—no provision of Part 3 of this Act was contravened in relation to the product.\n (3) The amount of compensation must be the market value of the product at the time the product was forfeited under section 36.","sortOrder":49},{"sectionNumber":"38","sectionType":"section","heading":"Forfeited products become property of Commonwealth","content":"#### 38 Forfeited products become property of Commonwealth\n\n Products forfeited to the Commonwealth under section 31 or 36 become the property of the Commonwealth.","sortOrder":51},{"sectionNumber":"39","sectionType":"section","heading":"Disposal of forfeited products","content":"#### 39 Disposal of forfeited products\n\n (1) Products forfeited under section 31 or 36 must be dealt with and disposed of in accordance with the directions of the Minister.\n (2) The forfeited products must not be sold.","sortOrder":52},{"sectionNumber":"Part 7","sectionType":"part","heading":"Miscellaneous","content":"## Part 7—Miscellaneous","sortOrder":53},{"sectionNumber":"40","sectionType":"section","heading":"Simplified outline of this Part","content":"#### 40 Simplified outline of this Part\n\nThis Part deals with the appointment of inspectors, the publication and disclosure of information, and the conduct of audits to ensure compliance with this Act.\n\nIt also provides for the delegation of powers, requires periodic reviews of the operation of the Act, and enables the Minister to make rules.","sortOrder":54},{"sectionNumber":"41","sectionType":"section","heading":"Inspectors","content":"#### 41 Inspectors\n\n (1) The Secretary may, in writing, appoint an APS employee as an inspector for the purposes of this Act.\n (2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.\n (3) An inspector must, in performing functions or exercising powers as an inspector, comply with any directions of the Secretary.\n (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.","sortOrder":55},{"sectionNumber":"42","sectionType":"section","heading":"Publication of information relating to certifications and exemptions","content":"#### 42 Publication of information relating to certifications and exemptions\n\n (1) The Secretary may publish information relating to an emissions‑controlled product that is certified for the purposes of this Act, including but not limited to:\n (a) information that identifies the product and the manufacturer of the product; and\n (b) information about emissions from the product; and\n (c) information about the certification.\n (2) The Secretary may publish information relating to an exemption of an emissions‑controlled product or a person from a provision of this Act, including but not limited to:\n (a) circumstances in which the exemption applies; and\n (b) reasons for the exemption; and\n (c) the person who applied for the exemption.","sortOrder":56},{"sectionNumber":"43","sectionType":"section","heading":"Disclosure of information","content":"#### 43 Disclosure of information\n\n (1) The Secretary may disclose information obtained under this Act to:\n (a) the Australian Border Force (within the meaning of the Australian Border Force Act 2015); or\n (b) an agency, body or person prescribed by the rules;\n if the Secretary reasonably believes that the information will enable or assist the agency, body or person to exercise its powers, or perform its functions or duties.\n\n> Note: Subsection 51(6) has requirements relating to rules made for the purposes of paragraph (b).\n\n (2) This section does not limit any other powers the Secretary has to disclose information to a person.","sortOrder":57},{"sectionNumber":"44","sectionType":"section","heading":"Compliance audits","content":"#### 44 Compliance audits\n\n (1) This section applies if the Minister:\n (a) reasonably suspects that a person has engaged or is engaging in conduct that constitutes:\n (i) an offence against this Act; or\n (ii) a contravention of a civil penalty provision; and\n (b) is satisfied that it would be in the public interest to give the person a notice under this section.\n (2) The Minister may, by written notice given to the person, require the person:\n (a) to undertake, or arrange for another person to undertake, an audit of whichever of the following is specified in the notice:\n (i) the person’s compliance with this Act;\n (ii) one or more specified aspects of the person’s compliance with this Act; and\n (b) to give the Minister a written report setting out the results of the audit.\n (3) The notice must specify:\n (a) if the notice requires the person to arrange another person to undertake the audit—requirements relating to the qualifications and independence of the other person; and\n (b) the matters to be covered by the audit; and\n (c) the period within which the audit must be undertaken; and\n (d) the form and content of the report; and\n (e) the period within which the report must be given to the Minister.\n (4) A notice under subsection (2) is not a legislative instrument.\n (5) A person contravenes this subsection if the person is subject to a requirement under subsection (2) and the person fails to comply with the requirement.\n Strict liability offence\n (6) A person commits an offence of strict liability if the person contravenes subsection (5).\n\nPenalty: 40 penalty units.\n\n Civil penalty provision\n (7) A person is liable to a civil penalty if the person contravenes subsection (5).\n\nCivil penalty: 80 penalty units.","sortOrder":58},{"sectionNumber":"45","sectionType":"section","heading":"Delegation by the Minister","content":"#### 45 Delegation by the Minister\n\n (1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act (except section 51) to:\n (a) the Secretary; or\n (b) an SES employee, or acting SES employee, in the Department.\n\n> Note 1: Section 51 gives the Minister power to make rules.\n\n> Note 2: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Minister.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.","sortOrder":59},{"sectionNumber":"46","sectionType":"section","heading":"Delegation by the Secretary","content":"#### 46 Delegation by the Secretary\n\n (1) The Secretary may, by writing, delegate all or any of his or her powers or functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act, to:\n (a) an SES employee or acting SES employee in the Department; or\n (b) an APS employee who occupies, or performs the duties of, a position not below Executive Level 2 or equivalent in the Department.\n\n> Note: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.\n\n (2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n> Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.","sortOrder":60},{"sectionNumber":"47","sectionType":"section","heading":"Review of operation of Act","content":"#### 47 Review of operation of Act\n\n (1) The Minister must cause a review of the operation of this Act to be undertaken as soon as possible after the seventh anniversary of its commencement and afterwards at intervals of no longer than 10 years.\n (2) The person undertaking a review must give the Minister a written report of the review.\n (3) The Minister must cause a copy of the report of a review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.","sortOrder":61},{"sectionNumber":"48","sectionType":"section","heading":"Physical elements of offences","content":"#### 48 Physical elements of offences\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.\n (2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.\n\n> Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.","sortOrder":62},{"sectionNumber":"49","sectionType":"section","heading":"Contravening offence and civil penalty provisions","content":"#### 49 Contravening offence and civil penalty provisions\n\n (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.\n (2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.","sortOrder":63},{"sectionNumber":"50","sectionType":"section","heading":"Alternative constitutional bases","content":"#### 50 Alternative constitutional bases\n\n (1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.\n (2) To avoid doubt, no subsection of this section limits the operation of any other subsection.\n Import\n (3) This Act has the effect it would have if each reference to import were expressly confined to import in the course of trade or commerce.\n Supply\n (4) This Act has the effect it would have if each reference to supply were expressly confined to supply in the course of trade or commerce:\n (a) between Australia and places outside Australia; or\n (b) among the States; or\n (c) within a Territory, between a State and a Territory or between 2 Territories.\n Corporations power\n (5) This Act has the effect it would have if each reference to a person were expressly confined to a corporation to which paragraph 51(xx) of the Constitution applies.","sortOrder":64},{"sectionNumber":"51","sectionType":"section","heading":"Rules","content":"#### 51 Rules\n\n (1) The Minister may, by legislative instrument, make rules prescribing matters:\n (a) required or permitted by this Act to be prescribed by the rules; or\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n (2) Without limiting subsection (1), the rules may provide for:\n (a) charging fees for services provided in the performance of functions under this Act; and\n (b) the review of decisions made under this Act.\n (3) Rules setting out an emissions standard for the purposes of paragraph 10(2)(a) may apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time if the instrument or writing is produced by one or more of the following:\n (a) the International Electrotechnical Commission;\n (b) the International Organization for Standardization;\n (c) the United Nations Economic Commission for Europe;\n (d) any other organisation prescribed by the rules.\n (4) Rules specifying an emissions standard for the purposes of subparagraph 10(2)(b)(ii) may specify a standard as in force or existing from time to time.\n (5) To avoid doubt, the rules may not do the following:\n (a) create an offence or civil penalty;\n (b) provide powers of:\n (i) arrest or detention; or\n (ii) entry, search or seizure;\n (c) impose a tax;\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n (e) directly amend the text of this Act.\n (6) Before making rules for the purposes of paragraph 43(1)(b), the Minister must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of that consultation.\n (7) The rules may provide for the collection and recovery of charges imposed by the Product Emissions Standards (Customs) Charges Act 2017 and the Product Emissions Standards (Excise) Charges Act 2017.","sortOrder":65}],"analysis":{"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"The text provided appears to be the original enacted structure. The Act's scope is the regulation of emissions from specified products through certification, marking, record keeping, enforcement and forfeiture. Nothing in the version supplied indicates a substantial expansion beyond that original purpose: the Act deliberately leaves detailed scope and technical standards to rules (s51), but that is a design choice rather than a later scope creep."},"complexity_factors":["Multiple cross‑references to the Regulatory Powers (Standard Provisions) Act 2014 for monitoring, investigation and enforcement (ss24–29) — enforcement mechanics are partly external to this Act","Extensive delegation of substantive detail to rules made by the Minister (s51) — rules determine which products are covered, emissions standards, testing, marking, fees and review processes","Numerous strict liability offence provisions with parallel civil penalty provisions (ss13–18, ss20–22, s44), creating dual enforcement pathways","Forfeiture and seizure regime with time limits, forfeiture notices, court review and compensation mechanics (Part 6, ss31–39) — multi‑step procedural pathways","Multiple delegation and delegation‑related conditions (Minister to Secretary, Secretary to SES/EL2 positions) (ss45–46) increasing administrative layers","Defined terms and operational definitions that materially affect scope (e.g. \"product\", \"supply\", \"emissions‑controlled product\", \"certified\") (s7) — affects reach and application","Options to incorporate external instruments and international standards by reference (s51(3)–(4)), which can change technical content without amending the Act","Exceptions and exemptions handled in rules (s11) create conditional logic and potential nested exceptions"],"plain_english_summary":"**What this law does (mechanics)\n\n- Creates a regulatory framework for \"emissions‑controlled products\". The Minister makes rules that: (a) list which products are covered; (b) set emissions standards; and (c) set how products are certified and marked (see s9, s10, s51).\n\n- Certification requirement (s10): a product may be certified under the rules only if the Secretary is satisfied it meets the emissions standard in the rules, or it is certified by a named regulatory authority (for example, an overseas authority) to a standard specified in the rules.\n\n- Offences and civil penalties (Part 3, especially ss13–18): importing or supplying an emissions‑controlled product that is not certified, failing to mark a certified product as required, or applying marks that falsely claim certification are offences of strict liability. The Act provides parallel civil penalty liabilities as alternatives to criminal prosecution. Typical penalties in the Act are 60 penalty units for strict liability offences and 120 penalty units for corresponding civil penalty provisions.\n\n- Record‑keeping and reporting (Part 4, ss20–22): the rules may impose requirements on importers and suppliers to make and keep records and to report (including specific reporting on first supplies of products manufactured in Australia). Failure to comply carries penalties (40 or 60 penalty units depending on the rule).\n\n- Enforcement powers and procedures (Part 5 and ss24–29): enforcement, monitoring, investigation, civil penalty enforcement, infringement notices, enforceable undertakings and injunctions are carried out using the machinery of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act). The Act specifies that inspectors, the Secretary and courts under that Act operate for this scheme.\n\n- Seizure and forfeiture (Part 6, ss31–39): a product can be forfeited to the Commonwealth if a person is convicted or ordered to pay a civil penalty for contravening Part 3. Inspectors may seize forfeited products; products seized during investigations may also be forfeited after a forfeiture notice and court process. The Act provides for limited compensation where seizure or forfeiture procedures were not followed or no contravention occurred.\n\n- Administrative roles and review (Part 7): the Secretary appoints inspectors (s41) and may publish information about certifications and exemptions (s42). The Minister delegates many powers (ss45–46) and must cause a statutory review of the Act after seven years and at least every ten years thereafter (s47).\n\n- Rule‑making limits and international standards (s51): rules are legislative instruments and may adopt international standards (IEC, ISO, UNECE or others prescribed). Rules may set fees and review processes, but they may not create offences, give powers of arrest or seizure, impose taxes, appropriate money from Consolidated Revenue Fund, or directly amend the Act.\n\n\nWho is affected and who decides\n\n- Who pays / bears the costs: importers, suppliers and manufacturers of products designated as \"emissions‑controlled\" will carry most direct compliance costs (testing, certification, marking, record keeping, responding to audits) and risk penalties or forfeiture if they fail to comply (see ss13–16, 20–22, 31–39). The Commonwealth bears administrative costs of enforcement and running the certification/exemption processes.\n\n- Who decides: the Minister (by rules) decides which products are covered and the substance of standards and processes (s51). The Secretary decides certification in individual cases (s10(2)(a)) and appoints inspectors (s41). The Secretary also publishes and may disclose information about certifications and exemptions (ss42–43).\n\n\nWhy it matters (official purpose and practical trade‑offs)\n\n- The Act expressly aims to regulate product emissions to improve air quality and to assist Australia meet obligations under the international climate instruments listed (s3). Those are the policy goals stated in the Act.\n\n- Practical trade‑offs and implementation risks to note:\n - The Act delegates a lot of detail to rules (s51). That concentrates substantive discretion in the rule‑making process rather than the Act itself; implementation therefore depends on the content of subsequent rules (which may adopt international standards). That speeds technical alignment but shifts important policy detail out of primary legislation.\n - Compliance costs are concentrated on specific market participants (manufacturers, importers, suppliers of prescribed products) while the benefits the Act claims (improved air quality, treaty obligations) are diffuse across the population (s3). The statutory design therefore creates concentrated private costs and diffuse public benefits.\n - Because rules can set fees, exempt products or persons, and allow use of foreign regulatory certifications (s51, s10(2)(b)), affected firms have incentives to engage with the rule‑making and exemption processes. The Act therefore creates opportunities for stakeholder influence over rule content — a normal feature of delegated regulation, but one that raises lobbying and capture risk in practice.\n - Enforcement is backed by strict liability offences, civil penalties and forfeiture (Parts 3 and 6). Strict liability reduces prosecutors’ burden to prove fault but increases regulatory risk for businesses that rely on supply chains for compliance information. Forfeiture (ss31–39) removes offending goods from the market and may increase the commercial loss to a supplier beyond monetary penalties.\n - The Act links enforcement powers to the Regulatory Powers Act (ss24–29). That imports particular monitoring, investigative and civil enforcement tools but also means procedural protections and powers are not set out in this Act but in the referenced instrument.\n\n\nKey implementation details to check when applying the law\n\n- Which products are actually prescribed under the rules (s9).\n- The exact emissions standards and whether rules adopt international standards (s51(3)–(4)).\n- Certification processes, fees and whether the rules recognise particular foreign regulatory authorities (s10(2)(b), s51).\n- Marking specifications in the rules (ss14, 16, 17, 18) and related labelling compliance costs.\n- Record‑keeping and reporting obligations in the rules and the timing for reports (ss20–22).\n- How inspectors (appointed under s41) and enforcement under the Regulatory Powers Act will be used in practice (ss24–29).\n\n(References: objects s3; certification and delegation of standards s10, s51; offences and penalties ss13–18, ss20–22; enforcement / Regulatory Powers Act ss24–29; forfeiture ss31–39; inspectors s41; publication and disclosure ss42–43; audits s44; review s47.)"},"kimi_summary":{"_metrics":{"completionTokens":730},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The legislation appears consistent with its original intent. The Act establishes a framework for regulating product emissions through certification, with enforcement via offences, civil penalties, and forfeiture. The scope remains focused on emissions‑controlled products as prescribed by rules, with no evident expansion beyond the original air quality and climate change objectives."},"complexity_factors":["Extensive cross‑referencing to the Regulatory Powers (Standard Provisions) Act 2014 for enforcement mechanisms","Multiple overlapping penalty structures (criminal offences, civil penalties, infringement notices, forfeiture)","Rules‑based architecture where critical details (which products, what standards, marking requirements) are left to delegated legislation","Conditional logic throughout — e.g., certification requirements depend on rules, which depend on Secretary satisfaction or foreign regulatory authority recognition","Nested definitions and deeming provisions (e.g., 'supply' defined broadly to include offers, gifts, leases; 'certified' includes suspended certification)","Constitutional safety net provisions (section 50) with multiple alternative heads of power","Forfeiture and compensation scheme with multiple procedural steps and time limits (60‑day application windows)","Record‑keeping and reporting obligations triggered by rules‑prescribed reporting periods"],"plain_english_summary":"This Act creates a national system to control pollution from certain products sold in Australia. Here's what it does:\n\n**Core purpose**\n- Sets up a framework where the government can prescribe specific products as \"emissions‑controlled products\" (through rules made by the Minister)\n- Requires these products to meet emissions standards and be certified before they can be imported or sold\n- Aims to improve air quality and help Australia meet its climate change commitments\n\n**Who it affects**\n- **Importers and suppliers** of emissions‑controlled products — they face penalties if they bring in or sell uncertified products, or products that aren't properly marked\n- **Manufacturers** — may need to get products certified and keep records\n- **The Secretary of the Department** — makes decisions about certification and exemptions\n- **Inspectors** — appointed officials who enforce the Act\n\n**Key requirements**\n- Products must be **certified** (meeting emissions standards set in rules) before import or supply\n- Products must be **marked** according to rules if certification is required\n- **Record‑keeping** — importers and suppliers may need to keep records and provide reports\n\n**Penalties and enforcement**\n- **Criminal offences** (strict liability) with fines up to 60 penalty units for importing/supplying uncertified products, or 40 penalty units for record‑keeping failures\n- **Civil penalties** (double the criminal fines) as an alternative enforcement tool\n- **Forfeiture** — products breaching the Act can be seized and become Commonwealth property\n- **Regulatory powers** — inspectors can monitor, investigate, issue infringement notices, and seek court orders\n\n**Flexibility built in**\n- The Minister can make **rules** to prescribe which products are covered, set emissions standards, create exemptions, and charge fees\n- Rules can adopt international standards from bodies like the International Electrotechnical Commission\n- **Exemptions** can be granted for specific products or circumstances\n\n**Why it matters**\nThis is Australia's mechanism for regulating product‑level emissions — think vehicle exhaust standards, small engine emissions, or other polluting products. It creates a certification and compliance system similar to energy rating labels, but for pollution."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"},"summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"The Act as presented is internally consistent with its stated objects. It sets up exactly what it says it will: a certification and enforcement framework for product emissions standards aimed at air quality and climate obligations. The scope has not visibly drifted from the original intent — the flexible 'rules' mechanism was clearly by design to allow the scheme to expand over time, and that flexibility is explicitly built into the Act's structure from the outset."},"complexity_factors":["Two-tier legislative structure: the Act creates the framework but key operative details (which products are covered, what the emissions standards actually are, certification processes, fees) are all delegated to subordinate 'rules' made by the Minister — readers must consult both the Act and the rules to understand their obligations","Heavy reliance on the Regulatory Powers (Standard Provisions) Act 2014 — the enforcement, monitoring, investigation, civil penalty, infringement notice, undertakings and injunctions regimes are all imported by reference from that separate Act, requiring readers to cross-reference another piece of legislation","Dual enforcement track: each prohibited conduct triggers both a criminal offence (strict liability) and a civil penalty provision, with different penalty amounts, creating complexity about which pathway applies in a given situation","Strict liability offences mean intent is irrelevant — businesses may be liable even without knowledge of a breach, which is a legally significant and counterintuitive concept for non-lawyers","Constitutional 'belt and braces' provision (section 50) provides alternative bases for the Act's operation under the trade and commerce power and the corporations power — a legal complexity largely invisible to ordinary readers but important for constitutional validity","Forfeiture regime operates via two distinct pathways (post-conviction under Division 2, and administrative forfeiture notice under Division 3), each with different procedural requirements and timeframes","Rules can incorporate international standards (from bodies like ISO, UN Economic Commission for Europe) 'as in force from time to time' — meaning the operative standard can change without any Australian legislative action","Significant document duplication in the provided text (the Act appears repeated multiple times) adds confusion, though this is a formatting issue rather than a legal complexity"],"plain_english_summary":"## What This Law Does\n\nThe **Product Emissions Standards Act 2017** sets up a national system to control how much pollution certain products can emit — think small engines, outdoor power equipment, or other manufactured goods that produce exhaust or other emissions. The goal is to improve Australia's air quality and meet Australia's international climate commitments (including the Paris Agreement).\n\n## Who Does It Affect?\n\n- **Importers**: If you bring a regulated product into Australia, it must be officially approved (\"certified\") as meeting emissions limits before you can do so.\n- **Suppliers and retailers**: If you sell, lease, hire, display, advertise or otherwise deal in regulated products commercially, the same certification rules apply to you.\n- **Manufacturers**: If you make regulated products in Australia, you may need to keep records and report your sales to the government.\n- **General public**: Largely unaffected directly, but benefits from cleaner air as a result of the scheme.\n\n## How It Works — The Key Steps\n\n1. **A product gets \"listed\"**: Government rules (called \"legislative instruments\" — basically secondary laws the Minister can make without a full Act of Parliament) decide which products are regulated.\n2. **Certification**: A product must be officially approved — either because the government department is satisfied it meets an emissions standard, or because it's been approved by a recognised overseas regulator.\n3. **Labelling**: Certified products may need to carry a specific mark or label to show they're approved.\n4. **Enforcement**: If you import or sell a product that isn't certified, or is incorrectly labelled, you can be fined or prosecuted — even if you didn't know (this is called \"strict liability,\" meaning you don't have to intend to break the law to be found guilty).\n\n## Penalties for Breaking the Rules\n\n- Importing or selling an uncertified product: up to **60 penalty units** (criminal fine) or **120 penalty units** (civil fine — like a big infringement notice). As of 2024, one penalty unit = $330, so this can be up to ~$39,600.\n- Falsely labelling a product as certified: same penalties.\n- Failing to keep records or comply with an audit: up to 40–60 penalty units.\n- Interfering with a seized product: up to **6 months imprisonment**.\n\n## What Happens to Non-Compliant Products?\n\nProducts imported or sold in breach of the Act can be **seized and forfeited** (permanently taken) by the government. If you believe your product was wrongly seized, you have 60 days to apply to a court for its return. If the government made a mistake in seizing it, you can claim compensation at market value.\n\n## Government Powers\n\nInspectors (government-appointed officials) can enter premises, inspect goods, and investigate suspected breaches. The Minister can require businesses to conduct their own compliance audits and report back.\n\n## Important Nuance: The Rules Do the Heavy Lifting\n\nThe Act itself is a framework — it doesn't name specific products or set specific emissions numbers. Those details are all set out in **separate rules** made by the Minister. This means the scheme can be expanded or changed without going back to Parliament each time, but it also means businesses need to watch for changes to those rules."},"issue_detection":{"absurdities":[{"type":"circular_definition","section":"7(1) - definition of 'certified'","severity":"high","reasoning":"A definition that reads 'X means X in accordance with Y' is logically circular. The term 'certified' is not independently defined anywhere in the Act — its entire substantive content is outsourced to rules made under s51. While deferral to rules is common, wrapping it in a self-referential definition creates a formal circularity: you cannot know what 'certified' means from the Act alone, yet the Act imposes criminal liability (ss13, 15) for dealing with products that are 'not certified'. The offence provisions are thus parasitic on a definition that contains no independent meaning.","confidence":0.88,"description":"Circular definition: 'certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.' The definition defines the term using the term itself, providing no independent meaning whatsoever. The only additional content is that it must be 'in accordance with the rules', making the primary definitional work entirely dependent on subordinate legislation."},{"type":"other","section":"7(1) - definition of 'product' and definition of 'manufacture'","severity":"low","reasoning":"The restricted scope of the 'manufacture' definition means it does not govern the use of 'manufactured' in paragraph (a) of the 'product' definition. This is internally inconsistent drafting that could cause interpretive confusion about whether 'produced by any method' applies to the core limb of the product definition.","confidence":0.65,"description":"The definition of 'manufacture' is artificially restricted: it only applies 'for a product prescribed for the purposes of the definition of product'. However, 'product' in paragraph (a) already includes anything 'manufactured' — using the ordinary meaning of that word. The definition of 'manufacture' as 'produce by any method' therefore only activates for products brought in under paragraph (b) of the 'product' definition. This creates an anomaly where the word 'manufactured' in paragraph (a) of the product definition carries its ordinary meaning while 'manufacture' elsewhere may carry a different statutory meaning, producing inconsistent application."},{"type":"impossible_compliance","section":"39(2)","severity":"medium","reasoning":"Section 39(1) grants the Minister broad discretion over disposal but s39(2) absolutely prohibits sale. For certain emissions-controlled products (e.g. machinery or vehicles that could be remediated to comply with standards), destruction when sale was possible is both economically absurd and potentially environmentally counterproductive — contrary to the Act's own environmental objectives in s3. There is no mechanism to convert forfeited goods to value even where a compliant buyer exists.","confidence":0.78,"description":"Forfeited products must not be sold, yet they must be disposed of in accordance with the Minister's directions. This creates a practical impossibility in circumstances where destruction of hazardous or valuable goods would be wasteful or impractical, and sale would be the only economically or environmentally rational disposition. The absolute prohibition on sale with no exception (not even for proceeds to fund remediation) is logically inconsistent with the broad disposal discretion otherwise granted to the Minister."},{"type":"impossible_compliance","section":"10(2)","severity":"high","reasoning":"The Act commenced 15 September 2017. If rules prescribed a product as emissions-controlled before establishing a certification pathway and emissions standard, importers and suppliers of that product would face strict liability offences with no means of compliance. The temporal bootstrapping problem — product prescribed before certification rules exist — is a genuine structural flaw.","confidence":0.82,"description":"The certification precondition in s10(2) is structured as a constraint on what the rules may provide, but the rules are also the instrument that would set the emissions standard against which compliance is measured. This means the rules cannot provide for certification unless a standard exists in the rules — but the standard only exists if the rules create it. Before any rules are made, no emissions standard exists, no certification is possible, yet s13 and s15 impose strict liability offences for importing or supplying uncertified emissions-controlled products. In the gap between commencement and the making of substantive rules, no product can be certified, making compliance with ss13/15 logically impossible for any product prescribed as emissions-controlled."},{"type":"self_contradicting","section":"22(2) and 22(4)","severity":"medium","reasoning":"The phrase 'the first supply' as the trigger, combined with a reporting obligation covering the whole reporting period, creates an ambiguity: does 'first' mean chronologically first ever, or first during the reporting period? If the former, a person who first supplied years before the reporting period began has no trigger and no obligation, which would defeat the section's purpose. If the latter, the drafting is redundant. Either reading produces an anomaly.","confidence":0.72,"description":"Section 22(2) triggers the reporting obligation when 'a person makes the first supply of the product' during a reporting period, but s22(4) carves out offers to supply from the definition of 'supply' for this section. This means the reporting obligation turns on an actual supply (not an offer), yet the report must cover 'such products that the person has so supplied during the reporting period' — which, read literally, means a person who makes a single first supply triggers an obligation to report on ALL supplies during the entire reporting period, including supplies made before the first supply. This is temporally incoherent: you cannot make supplies before the first supply."},{"type":"impossible_compliance","section":"33(3)","severity":"high","reasoning":"Once an inspector seizes a product under s32, it is in Commonwealth custody. The person served with the s32(3) notice — the former owner or person from whom it was seized — cannot physically prevent interference with property they no longer possess. Imposing a criminal obligation (6 months imprisonment) for failing to prevent something you have no capacity to prevent is a classic impossible compliance absurdity.","confidence":0.85,"description":"Section 33(3) imposes a criminal offence on a person who 'is given a notice under subsection 32(3)' if they fail to take all reasonable precautions to prevent the product being interfered with. However, s32(3) requires the inspector to give the notice to 'the owner of the product or the person from whom the product was seized.' If the product has already been physically seized by the inspector, it is in the inspector's possession — making it logically impossible for the recipient of the notice (who no longer has the product) to take 'reasonable precautions' to prevent interference with it. The criminal obligation is imposed on a person who has no physical control over the relevant product."},{"type":"other","section":"44(1) and 44(2)","severity":"medium","reasoning":"Requiring a suspect to audit and report their own suspected criminal conduct, on pain of a further strict liability offence for non-compliance, creates a coercive self-incrimination mechanism. The person is trapped: comply and produce evidence of their own offending, or commit a further offence by not complying.","confidence":0.75,"description":"Section 44 permits the Minister to compel a person reasonably suspected of committing an offence to conduct an audit of their own compliance and report the results to the Minister. This effectively requires a person to self-incriminate and produce evidence against themselves, despite the privilege against self-incrimination being a fundamental common law right. While the Act does not expressly abrogate this privilege, compelling production of an audit report that documents non-compliance creates a logical tension with basic procedural fairness principles, particularly given that failure to comply is itself a strict liability offence under s44(6)."},{"type":"self_contradicting","section":"35(4) and 35(6)","severity":"high","reasoning":"The mandatory court order in s35(4) ('the court must order') is rendered hollow by s35(6), which permits the Commonwealth to retain the product notwithstanding the order. The combination of a compulsory judicial order and a statutory licence to disobey it is self-contradictory and creates an unenforceable right.","confidence":0.8,"description":"Section 35(4) mandates that a court MUST order return of a product if no Part 3 contravention is established, but s35(6) then provides that the Commonwealth is not required to actually return the product in three specified circumstances — including where ongoing proceedings exist. This means a court can make a mandatory return order that the Commonwealth is lawfully entitled to ignore. A court order that need not be obeyed is a logical absurdity and undermines the rule of law premise on which the section is built."},{"type":"other","section":"Structural - entire document","severity":"high","reasoning":"The document submitted for analysis contains the Act's full text repeated multiple times with inconsistent heading structures. While this is most likely a document extraction/rendering error rather than a legislative drafting error in the enrolled bill, it is flagged as a high-severity structural issue in the document as presented.","confidence":0.95,"description":"The legislation as presented contains the entire Act reproduced in full at least three times within the one document (Parts 1-7 appear in full, then again from 'An Act to improve air quality...', then again). This structural duplication, while likely a formatting/extraction error, means the document as presented contains conflicting structural headings (e.g. 'Part 3 Enforcing product emissions standards' appears as a heading at one point, then immediately after is headed 'An Act to improve air quality...' restarting Part 1). If this reflects the published instrument, it creates genuine legal uncertainty about which version of each provision prevails."}],"contradictions":[{"severity":"medium","section_a":"6(1) - Act binds the Crown","section_b":"6(2) - Crown not liable to prosecution or civil penalty","confidence":0.7,"description":"Section 6(1) states the Act binds the Crown 'in each of its capacities', which would logically include liability for offences and civil penalties created by the Act. Section 6(2) immediately negates this by exempting the Crown from prosecution, civil penalty orders, and infringement notices. The Act thus purports to bind the Crown but then removes every enforcement mechanism against it, rendering the binding largely illusory for the Crown itself (though not for Crown authorities per s6(3))."},{"severity":"high","section_a":"13(1) - strict liability offence for importing uncertified product","section_b":"10(1) - rules MAY provide for certification","confidence":0.85,"description":"Section 13 imposes a strict liability criminal offence for importing an emissions-controlled product that is 'not certified', but s10(1) provides that the rules MAY (not must) provide for certification. If the Minister never makes rules providing for certification, no product can ever become certified, yet the strict liability offence for importing uncertified products would still apply — making all importation of any emissions-controlled product a criminal act with no legal avenue for compliance."},{"severity":"high","section_a":"15(1) - strict liability offence for supplying uncertified product","section_b":"10(1) - rules MAY provide for certification","confidence":0.85,"description":"The same contradiction as between ss13 and 10(1) applies to supply: s15 criminalises supply of uncertified products, but certification is discretionary under s10(1). If no certification pathway is established by rules, no product can be certified and all supply of emissions-controlled products is criminal. The 'may' in s10(1) is irreconcilable with the mandatory prohibition in s15."},{"severity":"low","section_a":"3(b)(i) - object to improve air quality and health/environmental benefits","section_b":"39(2) - forfeited products must not be sold","confidence":0.55,"description":"The Act's object includes delivering environmental benefits. Section 39(2) absolutely prohibits the sale of forfeited products. Where a forfeited product is non-compliant because it exceeds emissions standards, the prohibition on sale prevents it from being sold to an operator who could modify it to comply — potentially resulting in destruction of a product that could have been remediated. This is environmentally counterproductive and contradicts the Act's own stated environmental objectives."},{"severity":"medium","section_a":"34(2) - inspector MAY give forfeiture notice within 7 days","section_b":"36 - product forfeited if no application made under s35","confidence":0.78,"description":"Section 34(2) gives the inspector a discretion ('may') to issue a forfeiture notice within 7 days. Section 36 then automatically forfeits the product if no s35 application is made. However, if the inspector does not give a forfeiture notice at all, s36 cannot be triggered (as it requires a forfeiture notice to have been given), but s34(4)(d) requires the notice to state the product will be forfeited unless a court orders return. The product therefore sits in legal limbo — seized but not formally forfeited — with no statutory mechanism to resolve its status if the inspector elects not to issue a forfeiture notice."},{"severity":"low","section_a":"37(2)(b)(ii) - compensation available where no Part 3 contravention","section_b":"36(a) - forfeiture where no s35 application made","confidence":0.6,"description":"Section 36(a) forfeits a product where no court application for return was made within 60 days. Section 37(2)(b)(ii) then allows compensation where the product was forfeited under s36(a) and no Part 3 contravention occurred. This creates an incentive paradox: a person with an innocent product might strategically not apply for return under s35 (allowing forfeiture under s36(a)) in order to then claim compensation under s37. The compensation route may in some circumstances be more financially attractive than seeking return of a damaged or depreciated product — rewarding procedural inaction."},{"severity":"low","section_a":"45(1) - Minister may delegate all powers except s51","section_b":"44(1)-(2) - compliance audit power vested in Minister","confidence":0.55,"description":"Section 45(1) allows the Minister to delegate all powers except rule-making under s51. This means the compliance audit power in s44 — which includes requiring suspects to self-audit — can be delegated to SES employees. However, s44(4) states audit notices are not legislative instruments, and the notice-giving power is expressed in personal terms ('the Minister may'). Delegation of the coercive audit power to relatively junior departmental officers without additional safeguards creates a potential inconsistency with the personal nature of the obligation as drafted."}]}},"importantCases":[],"_links":{"self":"/api/acts/product-emissions-standards-act-2017","history":"/api/acts/product-emissions-standards-act-2017/history","analysis":"/api/acts/product-emissions-standards-act-2017/analysis","conflicts":"/api/acts/product-emissions-standards-act-2017/conflicts","importantCases":"/api/acts/product-emissions-standards-act-2017/important-cases","documents":"/api/acts/product-emissions-standards-act-2017/documents"}}