17Supplying GEMS products—model not registered

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