16Supplying GEMS products—complying with GEMS determinations

16 Supplying GEMS products—complying with GEMS determinations

(1) A person must not supply, or offer to supply, a GEMS product if: (a) the product is in a product class covered by a GEMS determination; and (b) either or both of the following apply: (i) the product does not comply with a requirement of the GEMS determination; (ii) a requirement of the GEMS determination is not complied with in supplying, or offering to supply, the product. (2) Subsection (1) does not apply if: (a) the product is a second‑hand product at the time of the supply or offer; or (b) the following conditions are satisfied: (i) the model of the product is exempt under section 37 from the requirement; (ii) any conditions of the exemption (see subsection 37(2)) are complied with in connection with the supply or offer; or (c) the following conditions are satisfied: (i) the product is imported into, or the product’s last process of manufacture is performed in, Australia at a time (the earlier time) before the GEMS determination comes into force; (ii) if there is a limited grandfathering period under the GEMS determination for the product class (see section 31)—the supply or offer occurs before the end of that period; (iii) all transitional GEMS labelling requirements of the GEMS determination are complied with in supplying or offering to supply the product; (iv) the product currently complies with any pre‑existing GEMS determination that was in force at the earlier time; (v) if there was no such pre‑existing GEMS determination—the supply of the product (or an offer to supply the product) in a State or Territory at the earlier time would not have contravened a law of the State or Territory relating to energy use by products, or greenhouse gases resulting from operating products. Strict liability offence—category A products (3) A person commits an offence of strict liability if the person contravenes subsection (1) and the product is a category A product for the product class.

Penalty: 60 penalty units.

Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Note 2: See subsection (7) (evidential burden for matters in subsection (2)).

Strict liability offence—category B products (4) A person commits an offence of strict liability if the person contravenes subsection (1) and the product is a category B product for the product class.

Penalty: 120 penalty units.

Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Note 2: See subsection (7) (evidential burden for matters in subsection (2)).

Civil penalty provision—category A products (5) A person is liable to a civil penalty if the person contravenes subsection (1) and the product is a category A product for the product class.