18Using GEMS products for commercial purposes—complying with GEMS determinations

#### 18 Using GEMS products for commercial purposes—complying with GEMS determinations (1) A person must not use a GEMS product for a commercial purpose if: (a) the GEMS product is in a product class covered by a GEMS determination; and (b) the GEMS product does not comply with a requirement of the GEMS determination; and (c) that is the person’s first use of the GEMS product. (2) Subsection (1) does not apply if: (a) the product was supplied to the person in Australia; or (b) the use of the product is exempt under section 20; or (c) the 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 use of the product; or (d) the following conditions are satisfied: (i) the product is imported into, or the product’s last process of manufacture is performed in, Australia at a time (the earlier time) before the GEMS determination comes into force; (ii) if there is a limited grandfathering period under the GEMS determination for the product class (see section 31)—the use of the product occurs before the end of that period; (iii) the product currently complies with any pre‑existing GEMS determination that was in force at the earlier time; (iv) if there was no such pre‑existing GEMS determination—the use of the product for a commercial purpose in a State or Territory at the earlier time would not have contravened a law of the State or Territory relating to energy use by products, or greenhouse gases resulting from operating products. Strict liability offence—category A products (3) A person commits an offence of strict liability if the person contravenes subsection (1) and the product is a category A product for the product class. 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)). Civil penalty provision—category B products (6) A person is liable to a civil penalty if the person contravenes subsection (1) and the product is a category B product for the product class. Civil penalty: 120 penalty units. > Note 1: It is generally not necessary to prove a person’s state of mind in proceedings for a contravention of a civil penalty provision (see section 94 of the Regulatory Powers Act). > Note 2: See subsection (8) (evidential burden for matters in subsection (2)). Evidential burden for matters in subsection (2) (7) In a prosecution for an offence against subsection (3) or (4), the prosecution bears an evidential burden in relation to the matters in paragraphs (2)(c) and (d), despite subsection 13.3(3) of the Criminal Code. > Note: However, a defendant still bears an evidential burden in relation to a matter in paragraph (2)(a) or (b), because subsection 13.3(3) of the Criminal Code still applies in relation to those paragraphs. (8) In proceedings for a civil penalty order under the Regulatory Powers Act for a contravention of subsection (5) or (6): (a) a person who wishes to rely on paragraph (2)(a) or (b) bears an evidential burden in relation to a matter in that paragraph; and (b) the person applying for the order bears an evidential burden in relation to the matters in paragraphs (2)(c) and (d).