19Using GEMS products for commercial purposes—model not registered

19 Using GEMS products for commercial purposes—model not registered

(1) A person must not use a GEMS product for a commercial purpose if: (a) the GEMS product is in a product class covered by a GEMS determination; and (b) the model of the GEMS product is not registered against that GEMS determination in relation to that product class; and (c) that is the person’s first use of the GEMS product. (2) Subsection (1) does not apply if: (a) the product was supplied to the person in Australia; or (b) the use of the product is exempt under section 20; or (c) the model of the product is exempt under section 30 from registration in relation to that product class; or (d) the following conditions are satisfied: (i) the product is imported into, or the product’s last process of manufacture is performed in, Australia at a time (the earlier time) before the GEMS determination comes into force; (ii) if there is a limited grandfathering period under the GEMS determination for the product class (see section 31)—the use of the product occurs before the end of that period; (iii) the product currently complies with any pre‑existing GEMS determination that was in force at the earlier time; (iv) if there was no such pre‑existing GEMS determination—the use of the product for a commercial purpose in a State or Territory at the earlier time would not have contravened a law of the State or Territory relating to energy use by products, or greenhouse gases resulting from operating products. Strict liability offence—category A products (3) A person commits an offence of strict liability if the person contravenes subsection (1) and the product is a category A product for the product class.

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).