Commonwealth: Greenhouse and Energy Minimum Standards Act 2012 (Cth)

Greenhouse and Energy Minimum Standards Act 2012 No. 132, 2012 Compilation No. 7 Compilation date: 14 October 2024 Includes amendments: Act No. 39, 2024 About this compilation This compilation This is a compilation of the Greenhouse and Energy Minimum Standards Act 2012 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary Division 1—Preliminary 1 Short title 2 Commencement Division 2—Guide to this Act 3 Guide to this Act Division 3—Objects of this Act 4 Objects of this Act Division 4—The Dictionary and other interpretive provisions 5 The Dictionary 6 Contravening an offence provision or a civil penalty provision Division 5—Application of this Act 7 Act binds Crown 7A Constitutional application of this Act 8 Extension to external Territories 9 Concurrent operation of State and Territory laws Part 2—Key concepts Division 1—Guide to this Part 10 Guide to this Part Division 2—Key concepts 11 GEMS products, GEMS determinations and product classes 12 Models of GEMS products to be registered in relation to product classes 13 Models to be registered against GEMS determinations 14 Supplying and offering to supply GEMS products Part 3—Requirements for suppliers and commercial users of GEMS products Division 1—Guide to this Part 15 Guide to this Part Division 2—Supplying GEMS products 16 Supplying GEMS products—complying with GEMS determinations 17 Supplying GEMS products—model not registered Division 3—Using GEMS products for commercial purposes 18 Using GEMS products for commercial purposes—complying with GEMS determinations 19 Using GEMS products for commercial purposes—model not registered 20 Exempt uses of GEMS products Part 4—GEMS determinations Division 1—Guide to this Part 22 Guide to this Part Division 2—Making GEMS determinations 23 Minister may make GEMS determinations 24 GEMS requirements—general 25 GEMS requirements—GEMS level requirements 26 GEMS requirements—GEMS labelling requirements 27 GEMS requirements—other requirements 27A GEMS requirements—deemed compliance 28 GEMS determinations—families of models 29 GEMS determinations—category A and category B products 30 GEMS determinations—models exempt from registration 31 GEMS determinations—limited grandfathering period 32 GEMS determinations—not to give preference 33 GEMS determinations—consent of participating jurisdictions 34 GEMS determinations—when a GEMS determination comes into force 34A GEMS determinations—incorporation etc. of material as in force or existing from time to time Division 3—Replacing GEMS determinations 35 Replacing GEMS determinations 36 Whether registrations affected by replacement determination Division 4—Exempting models from requirements of GEMS determinations 37 Exempting models from requirements of GEMS determinations Part 5—Registering models of GEMS products Division 1—Guide to this Part 38 Guide to this Part Division 2—GEMS Register 39 Establishment of GEMS Register 40 Information to be entered in GEMS Register Division 3—Registering models of GEMS products 41 Registration on application 42 Application requirements—contact persons and contact details 43 Registration by the GEMS Regulator 44 Relevant GEMS determination with which model must comply 45 Conditions Division 4—Varying registrations 46 Varying registration to cover additional models 47 Varying registration to change registrant Division 5—When is a registration in force 48 When is a registration in force Division 6—Suspending and cancelling registrations Subdivision A—Suspending registrations 49 Suspending a model's registration 50 Effect of suspension 51 When is a suspension in force 52 Conditions on suspension 53 GEMS Regulator may vary suspension notice Subdivision B—Cancelling registrations 54 Cancelling a model's registration Division 7—Requirements for registrants Subdivision A—Notifying GEMS Regulator of changes 55 Requirement for registrant to notify GEMS Regulator of changes Subdivision B—Giving information relating to import, manufacture etc. of products 56 Requirement for registrant to give information relating to import, manufacture etc. of products Subdivision C—Giving product of registered model to GEMS Regulator 57 Requirement for registrant to give product—determining whether model complies with GEMS determination 58 Requirement for registrant to give product—retention and return of product 59 Requirement for registrant to give product—issuing officer may permit product to be retained 60 Requirement for registrant to give product—disposal of product Subdivision D—Testing products or cancelling registration 61 Requirement for registrant—testing products or cancelling registration Subdivision E—Notifying other persons of suspension or cancellation of registration 62 Requirement for registrant to notify other persons of suspension or cancellation of registration Division 8—Miscellaneous 63 Requirements for determining whether model complies with GEMS determination 64 Applications—basic requirements 65 Applications—GEMS Regulator may request further information 66 Grounds for refusing an application 67 Notice of decisions 68 Notice given to contact person taken to be given to applicant or registrant Part 6—The GEMS Regulator Division 1—Guide to this Part 69 Guide to this Part Division 2—Who is the GEMS Regulator 70 The GEMS Regulator Division 3—Functions of GEMS Regulator under this Act 71 Functions of the GEMS Regulator under this Act Division 4—Conferral of functions etc. on GEMS Regulator by State and Territory laws 72 Commonwealth consent to conferral of functions etc. on GEMS Regulator by State and Territory laws 73 How duty is imposed on GEMS Regulator by State and Territory laws 74 When State and Territory laws impose a duty on GEMS Regulator Division 5—General provisions relating to GEMS Regulator 75 Powers of the GEMS Regulator 76 GEMS Regulator has privileges and immunities of the Crown 77 GEMS Regulator may charge for services 78 Arrangements with other agencies 79 Consultants 80 Delegation Part 7—Monitoring and investigation Division 1—Guide to this Part 81 Guide to this Part Division 2—GEMS inspectors 82 Appointment of GEMS inspectors 83 GEMS Regulator is an inspector Division 3—Inspecting public areas of GEMS business premises 86 Inspection powers in public areas of GEMS business premises Division 4—Monitoring 87 Monitoring powers Division 5—Investigation 88 Investigation powers Division 7—Giving GEMS information to GEMS inspectors 122 Meaning of person who has GEMS information 123 GEMS Regulator may require a person to provide information 124 GEMS Regulator may require a person to appear before a GEMS inspector Division 8—Testing compliance of GEMS products 125 Authorising persons to test GEMS products 126 Testing GEMS products etc. Part 8—Enforcement Division 1—Guide to this Part 128 Guide to this Part Division 2—Civil penalties 129 Civil penalty provisions Division 3—Infringement notices 130 Infringement notices Division 4—Enforceable undertakings 131 Enforceable undertakings Division 5—Injunctions 132 Injunctions Division 6—Publicising offences, contraventions and adverse decisions 162 GEMS Regulator may publicise certain offences, contraventions and adverse decisions Part 9—Reviewing decisions Division 1—Guide to this Part 163 Guide to this Part Division 2—Reviewing decisions 164 Persons affected by reviewable decisions 165 Notification of decisions and review rights 166 Internal review 167 Review of decisions by Administrative Review Tribunal Part 10—Protecting information Division 1—Guide to this Part 168 Guide to this Part Division 2—Protecting information 169 Offence—Disclosing commercially sensitive information 170 Authorised disclosures 171 Disclosing commercially sensitive information to courts and tribunals etc. Part 11—Miscellaneous Division 1—Guide to this Part 172 Guide to this Part Division 2—Miscellaneous 173 Recovery of fees 174 Compensation for acquisition of property 175 Annual report 176 Review of operation of this Act 177 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to promote the development and adoption of products that use less energy and produce fewer greenhouse gases, and for related purposes Part 1—Preliminary Division 1—Preliminary 1 Short title This Act may be cited as the Greenhouse and Energy Minimum Standards Act 2012. 2 Commencement (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. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 21 September 2012 2. Sections 3 to 16 1 October 2012. 1 October 2012 3. Section 17 1 October 2013. 1 October 2013 4. Sections 18 to 177 1 October 2012. 1 October 2012 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. (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. Division 2—Guide to this Act 3 Guide to this Act Overview This Act is about promoting the development and adoption of products to reduce energy use and greenhouse gas production (see the objects in Division 3 of this Part). This is achieved by applying greenhouse and energy minimum standards (GEMS) in association with the supply and commercial use of products that use energy, or affect the energy used by another product. These standards are provided for by requirements in Ministerial determinations (GEMS determinations). Key concepts (Part 2) The key concepts used in this Act are unfolded in Part 2. These include GEMS products, GEMS determinations, models of GEMS products, registration of models against GEMS determinations, and supplying (or offering to supply) GEMS products. Supply and commercial use of products (Part 3) Generally speaking, a product (a GEMS product) covered by a GEMS determination can only be supplied or offered for supply, or used for a commercial purpose, if: (a) the model of the product is registered under this Act against the determination; and (b) the product complies with the determination; and (c) the supply, offer or use complies with the determination. Contravention of these rules may result in prosecution for offences or exposure to liability for civil penalties. GEMS determinations and registration (Parts 4, 5 and 6) GEMS determinations cover different product classes. They specify requirements for energy consumption, greenhouse gas production, labelling and some other matters, including the environment and human health. Generally speaking, all models of GEMS products must be registered on the GEMS Register to make sure they comply with relevant GEMS determinations. A senior officer of the Department (the GEMS Regulator) is responsible for the registration system and, more broadly, the administration of this Act. Monitoring, investigation and enforcement (Parts 7 and 8) GEMS inspectors may enter public areas of premises used in connection with the supply of GEMS products. GEMS inspectors may purchase GEMS products there (and exercise certain other powers) in order to investigate compliance with this Act. GEMS inspectors and the GEMS Regulator have powers to monitor compliance with this Act, to monitor whether information given under this Act is correct and to investigate suspected non‑compliance with this Act. Infringement notices may be issued for suspected contraventions of civil penalty provisions of this Act. Enforceable undertakings and injunctions may be used to enforce compliance with this Act. Details of offences, contraventions and adverse decisions, including the names of those involved, may also be publicised. Merits review and protection of information (Parts 9 and 10) Decisions about registration may be reviewed internally and by the Administrative Review Tribunal. The Act also protects commercially sensitive information against unauthorised disclosure. Introductory matters (Part 1) There is a Dictionary in Division 4 of this Part. The Dictionary is a list of every term that is defined in this Act. A term is either defined in the Dictionary itself, or elsewhere in this Act. If a term is defined elsewhere, the Dictionary includes a signpost. The application of this Act to the Crown and in the external Territories is dealt with in Division 5 of this Part. That Division also sets out the constitutional application of this Act and provides for when this Act is intended to operate concurrently with State and Territory laws. Division 3—Objects of this Act 4 Objects of this Act The objects of this Act are: (a) to give effect to certain obligations that Australia has under the Climate Change Convention; and (aa) to give effect to certain obligations that Australia has under the Paris Agreement; and (ab) to facilitate the operation of an intergovernmental scheme involving the Commonwealth and one or more other participating jurisdictions in relation to equipment energy efficiency; and (b) to promote the development and adoption of products that: (i) use less energy; or (ii) produce fewer greenhouse gases; or (iii) contribute to reducing the amount of energy used, or greenhouse gases produced, by other products. Division 4—The Dictionary and other interpretive provisions 5 The Dictionary In this Act: acquisition of property: see section 174. affected: (a) for when a model's registration in relation to a product class is affected by a replacement determination—see subsection 13(3); and (b) for when a person is affected by a reviewable decision—see section 164. agency means: (a) a Department of State; or (b) any agency, authority or body (whether incorporated or not) established for a public purpose by or under a law of the Commonwealth or of a State or Territory. Australia, when used in a geographical sense, includes the external Territories. authorised to test GEMS products in a product class: see section 125. category A product for a product class: see subsection 11(4) and section 29. category B product for a product class: see subsection 11(4) and section 29. civil penalty provision has the same meaning as in the Regulatory Powers Act. Climate Change Convention means the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time. Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 2 ([1994] ATS 2). In 2012, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). Commonwealth place means a place referred to in paragraph 52(i) of the Constitution. compliance obligation: each of the following is a compliance obligation: (a) an offence against this Act; (b) a civil penalty provision of this Act; (c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. constitutional trade or commerce means trade or commerce: (a) between Australia and a place outside Australia; or (b) among the States; or (c) between a State and a Territory; or (d) between 2 Territories; or (e) within a Territory. contact person, for a registration, means a contact person currently entered in the GEMS Register in relation to the registration. contravene an offence or civil penalty provision has a meaning affected by section 6. Note: The meaning of contravention is correspondingly affected (see section 18A of the Acts Interpretation Act 1901). covered by: a product class is covered by a GEMS determination if: (a) the GEMS determination specifies that it covers the product class (see subsection 11(2)); and (b) the GEMS determination is in force (see sections 34 and 35). evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. family of models: see subsection 12(3). foreign jurisdiction means a foreign country, or a part of a foreign country. GEMS is short for Greenhouse and Energy Minimum Standards. GEMS business premises means any premises that are open to the public on a regular basis and: (a) that are used for, or in connection with, the supply of one or more GEMS products; or (b) at which one or more GEMS products are used for a commercial purpose. GEMS determination: see subsection 11(2) and section 23. GEMS labelling requirements: see section 26. GEMS level requirements: see section 25. GEMS product: see subsection 11(1). GEMS Register: see section 39. GEMS Regulator: see section 70. high efficiency level for a product class: see paragraph 27(1)(a). import into Australia includes bring into Australia. issuing officer means: (a) a magistrate; or (b) a Judge of the Federal Circuit and Family Court of Australia (Division 2); or (c) a Judge of the Federal Court of Australia. just terms: see section 174. limited grandfathering period for a product class: see section 31. manufacture, in relation to a product, means the creation of a product essentially different from the matters or substances that go into that creation, but does not include the following activities (whether performed alone or in combination with each other): (a) restoration or renovation processes such as repairing, reconditioning, overhauling or refurbishing; (b) minimal operations of pressing, labelling, ticketing, packaging and preparation for sale, whether conducted alone or in combination with each other; (c) quality control inspections. manufacturer of a product means the person who performs, or has had performed on the person's behalf, the last process of manufacture of the product. model: see subsection 12(2). model identifier: see paragraph 12(2)(c). offer to supply: see subsection 14(3). operate: a product that uses energy operates at any time when the product is using energy. Paris Agreement means the Paris Agreement done at Paris on 12 December 2015, as amended and in force for Australia from time to time. Note: The Paris Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au) participating jurisdiction: see section 33. person who has GEMS information: see section 122. premises includes the following: (a) a structure, building, vehicle, vessel or aircraft; (b) a place (whether or not enclosed or built on); (c) a part of a thing referred to in paragraph (a) or (b). product classes: see paragraph 11(2)(a). protected information: see subsection 169(3). register a model in relation to a product class: see section 43. registered against a GEMS determination: see section 13. registrant, for a model's registration in relation to a product class, means: (a) unless paragraph (b) applies—the person who applied for the model to be registered in relation to that product class; or (b) if the GEMS Regulator, under section 47, has varied the registration to specify another person as the registrant for the registration—the person for the time being specified as the registrant for the registration in accordance with that section. Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. relevant court means: (a) the Federal Court of Australia; or (aa) the Federal Circuit and Family Court of Australia (Division 2); or (b) a Supreme Court of a State or Territory. replacement determination: see subsection 11(5) and section 35. reviewable decision has the meaning given by section 164. revoked determination: see subsection 11(5). second‑hand: a product is second‑hand at the time of supplying or offering to supply the product if, and only if, there has been a supply of the product (other than a wholesale supply) in Australia before that time. Secretary means the Secretary of the Department. supply: see subsection 14(1). suspension notice: see subsection 51(1). this Act includes regulations and GEMS determinations made under this Act. transitional GEMS labelling requirement means a GEMS labelling requirement that is expressed in the GEMS determination to be made for the purpose mentioned in paragraph 26(2)(c). 6 Contravening an offence provision or a civil penalty provision (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. Note: The expression this Act has an extended meaning (see the Dictionary in section 5). (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. Division 5—Application of this Act 7 Act binds Crown (1) This Act binds the Crown in each of its capacities. (2) However, this Act does not make the Crown liable to be prosecuted for an offence. (4) The protection in subsection (2) does not apply to an authority of the Crown. 7A Constitutional application of this Act Supplies of products (1) This Act applies to the following supplies of a product: (a) supply of the product, being a supply whose regulation is reasonably appropriate and adapted to give effect to Australia's obligations under: (i) the Climate Change Convention; or (ii) the Paris Agreement; or (iii) another agreement between Australia and one or more other countries; (b) supply of the product by or to a constitutional corporation; (c) supply of the product in the course of constitutional trade or commerce; (d) supply of the product using a postal, telegraphic, telephonic, or other like service (within the meaning of paragraph 51(v) of the Constitution); (e) supply of the product by or to the Commonwealth or a Territory, or by or to an authority or instrumentality of the Commonwealth or a Territory; (f) supply of the product occurring in a Commonwealth place or a Territory. Note: The expression this Act has an extended meaning (see the Dictionary in section 5). Offers to supply products (2) This Act applies to the following offers to supply a product: (a) an offer to supply the product, being an offer whose regulation is reasonably appropriate and adapted to give effect to Australia's obligations under: (i) the Climate Change Convention; or (ii) the Paris Agreement; or (iii) another agreement between Australia and one or more other countries; (b) an offer to supply the product made by or to a constitutional corporation; (c) an offer to supply the product made in the course of constitutional trade or commerce; (d) an offer to supply the product made using a postal, telegraphic, telephonic, or other like service (within the meaning of paragraph 51(v) of the Constitution); (e) an offer to supply the product made by or to the Commonwealth or a Territory, or by or to an authority or instrumentality of the Commonwealth or a Territory; (f) an offer to supply the product occurring in a Commonwealth place or a Territory. Uses of products (3) This Act applies to the following uses of a product: (a) use of the product for a commercial purpose, being a use whose regulation is reasonably appropriate and adapted to give effect to Australia's obligations under: (i) the Climate Change Convention; or (ii) the Paris Agreement; or (iii) another agreement between Australia and one or more other countries; (b) use of the product for a commercial purpose by a constitutional corporation; (c) use of the product for a commercial purpose in the course of constitutional trade or commerce; (d) use of the product for a commercial purpose in providing a postal, telegraphic, telephonic, or other like service (within the meaning of paragraph 51(v) of the Constitution); (e) use of the product for a commercial purpose by the Commonwealth or a Territory, or by an authority or instrumentality of the Commonwealth or a Territory; (f) use of the product for a commercial purpose occurring in a Commonwealth place or a Territory. 8 Extension to external Territories This Act extends to every external Territory. 9 Concurrent operation of State and Territory laws (1) This Act is not intended to exclude or limit the operation of a law of a State or Territory (the State or Territory law) to the extent that: (a) the State or Territory law applies minimum requirements (however described) relating to greenhouse gas production or energy use in association with the supply and commercial use of a product that uses energy, or affects the energy used by another product; and (b) if the product is a GEMS product (in a product class covered by a GEMS determination)—those requirements are more stringent than the corresponding requirements applying to the product class under the GEMS determination; and (c) the State or Territory law is capable of operating concurrently with this Act. (2) Subject to subsection (1), this Act is not intended to exclude or limit the concurrent operation of a State or Territory law if such a law makes: (a) an act or omission that is an offence against a provision of this Act; or (b) a similar act or omission; an offence against the State or Territory law. (3) Subsection (2) applies even if the State or Territory law does any one or more of the following: (a) provides for a penalty for the offence that differs from the penalty provided for in this Act; (b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Act; (c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Act. Part 2—Key concepts Division 1—Guide to this Part 10 Guide to this Part This Part is about some of the key concepts used in this Act, and the inter‑relationships between those concepts. This Act applies to GEMS products, which are products that use energy, or affect the amount of energy used by another product, and belong to a product class for which a GEMS determination has been made (under Part 4). GEMS products may be determined to be category A products or category B products. Category B products have a higher impact on energy use or greenhouse gas production than category A products. Different penalty levels apply to contraventions of the main rules about supply and use of GEMS products in Part 3, depending on the category of the product. GEMS products belong to a particular model if they have the same technical specifications, brand name (or manufacturer) and a unique identifier. Generally speaking, all models of GEMS products must be registered under Part 5 (in the GEMS Register) against GEMS determinations. A model's registration may be affected by a replacement determination updating the GEMS determination against which the model was initially registered. This might affect whether products of the model can be supplied, or used for commercial purposes. There is a broad concept of supply and offer to supply. This affects the application of the main rules in Division 2 of Part 3 about supplying and offering to supply GEMS products. Division 2—Key concepts 11 GEMS products, GEMS determinations and product classes (1) A GEMS product is a product that: (a) uses energy or affects the amount of energy used by another product; and (b) is in a product class covered by a GEMS determination. (2) A GEMS determination is a determination made by the Minister under section 23 that: (a) specifies one or more classes of products (product classes) that it covers; and (b) specifies requirements for products in those product classes in accordance with Part 4. Note: For when a GEMS determination is in force, see sections 34 and 35. (2A) For the purposes of paragraph (2)(a), a GEMS determination may specify a class of product in any way including, but not limited to, by reference to the following: (a) the function the products perform; (b) the materials from which the products are manufactured; (c) the size or capacity of the products; (d) whether the products contain a particular feature or are capable of operating in different modes; (e) the intended or expected end use of the products. (3) A single product may be in more than one product class (whether or not specified in the same GEMS determination). Note: If a single product is in more than one product class, the product must comply with requirements under this Act for each of those product classes. For example, a product that operates both as a washing machine and as a clothes dryer would need to comply with separate requirements for washing machines (where washing machines are a product class) and clothes dryers (where clothes dryers are a product class). (4) A GEMS product in a product class covered by a GEMS determination is either a category A product or a category B product for that product class, as specified in the determination (see section 29). Note: Different penalty levels apply for certain offences under this Act, depending on whether a product is a category A product or a category B product for a product class. (5) A replacement determination is a GEMS determination made in accordance with section 35 that specifies that it replaces another GEMS determination (a revoked determination). 12 Models of GEMS products to be registered in relation to product classes (1) A model of a GEMS product in a particular product class must be registered under Part 5 in relation to that product class, unless the model is exempt from registration in relation to that product class as specified in a GEMS determination (see section 30). Note 1: If the model is in more than one product class, the model will need to be registered under Part 5 in relation to each of those product classes. Note 2: Offences apply in relation to supplying a GEMS product, or using a GEMS product for a commercial purpose, if the model of the product is not registered (see Part 3). (2) Two or more GEMS products are of the same model if, and only if: (a) the products have the same technical specifications, in so far as those specifications relate to the extent to which the products comply with the requirements of this Act; and (b) either: (i) there is a single brand or trade mark used in supplying or offering to supply the products; or (ii) if there is no such brand or trade mark—the products have the same manufacturer; and (c) there is a single unique identifier (the model identifier) used in supplying or offering to supply the products, or manufacturing the products, to identify the products as being of that model. Note 1: The expression this Act has an extended meaning (see the Dictionary in section 5). Note 2: A model may be registered in relation to a product class even if there is only one product of that model (see subsection 41(2)). (3) A single registration may cover 2 or more models in relation to a product class only if those models are in the same family of models in accordance with the GEMS determination for that product class (see section 28). (4) A model cannot be covered by more than one registration in relation to a particular product class. 13 Models to be registered against GEMS determinations (1) Under Part 5, a model of a GEMS product is registered against a GEMS determination in relation to a product class. (2) The GEMS determination against which the model is registered in relation to the product class is either: (a) the GEMS determination against which the model is registered under section 43 (registration by the GEMS Regulator); or (b) a replacement determination against which the model is taken to be registered because of subsection 36(2) (registration not affected by replacement determination). (3) A model's registration in relation to a product class is, or is not, affected by a replacement determination as specified in the replacement determination (see section 36). Note: If a model's registration is affected by a replacement determination: (a) the registration will cease to be in force under section 48 on the day the replacement determination comes into force; and (b) products of the model imported into, or manufactured in, Australia after the replacement determination comes into force might not be able to be supplied, or used for a commercial purpose, unless the model is registered against the replacement determination (see Part 3). 14 Supplying and offering to supply GEMS products (1) A supply of a GEMS product includes a supply of the product by way of sale, exchange, gift, lease, loan, hire or hire‑purchase. (2) For the purposes of subsection (1), it is irrelevant whether the supply is: (a) for consideration; or (b) a wholesale or retail supply. Note: Offences under this Act relating to supplying, or offering to supply, GEMS products do not apply in relation to second‑hand products. (3) Offer to supply a GEMS product includes make available, expose, display or advertise the product for supply. Part 3—Requirements for suppliers and commercial users of GEMS products Division 1—Guide to this Part 15 Guide to this Part This Part sets out the main rules that govern supplying and offering to supply GEMS products and using GEMS products for commercial purposes. Division 2 permits a GEMS product to be supplied or offered for supply only if certain GEMS determination requirements and registration requirements have been complied with. Division 3 permits a GEMS product to be used for a commercial purpose only if certain GEMS determination requirements and registration requirements have been complied with. Generally speaking, a product imported into, or manufactured in, Australia before the relevant GEMS determination comes into force may continue indefinitely to be supplied (or offered for supply), or used for a commercial purpose, without complying with the requirements of the GEMS determination or being registered against it (unless there is a limited grandfathering period (see section 31)). The rules in Division 2 governing supplying, and offering to supply, GEMS products do not apply to second‑hand products. The rules in Division 3 governing use of GEMS products for commercial purposes do not apply to products supplied to the user in Australia. A particular model of a GEMS product may be exempt (under section 37) from particular requirements of GEMS determinations on certain conditions. In addition, models of products in a particular product class may be exempt (under section 30) from registration requirements in relation to that product class. Furthermore, certain kinds of customised GEMS products may be offered for supply without being registered (see subsection 17(2A)). A particular use of a GEMS product may also be exempt from the application of the rules in Division 3 if it is personal use, for testing purposes or is prescribed by the regulations (see section 20). Contravening the rules in Division 2 or 3 may result in prosecution for offences or exposure to liability for civil penalties. All offences are strict liability. Different penalties apply depending on whether the relevant GEMS product is a category A or a category B product. Division 2—Supplying GEMS products 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. 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)(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). 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). Division 3—Using GEMS products for commercial purposes 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). 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). 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). 20 Exempt uses of GEMS products The following uses of a product are exempt for the purposes of this Division: (a) personal use by an individual; (b) use for the purpose of testing the product (whether the testing is to determine whether the product complies with requirements of GEMS determinations, or for any other purpose); (c) a use specified in regulations made for the purposes of this paragraph. Part 4—GEMS determinations Division 1—Guide to this Part 22 Guide to this Part This Part is about how GEMS determinations are made, and the requirements (GEMS requirements) which are imposed by the determinations. Division 2 provides for GEMS determinations to be made by Ministerial determination, subject to the consent of a certain number of States and Territories to the making and replacement of GEMS determinations. GEMS determinations must contain requirements relating to energy use or greenhouse gas production (GEMS level requirements) or requirements about labelling (GEMS labelling requirements). They may also contain other requirements relating to efficiency levels, performance, the environment and human health. Division 3 provides for GEMS determinations to be updated by replacement determinations. Replacement determinations must specify whether they affect the registration of models of GEMS products. If a replacement determination affects a model's registration, the registration ceases to be in force under Part 5 from the time the replacement determination comes into force. This might affect a person's ability to supply or use for a commercial purpose products of the model imported into, or manufactured in, Australia after that time (see Part 3). If a replacement determination does not affect a model's registration, the model is taken to continue to be registered against the replacement determination, and may continue to be supplied (or offered for supply) and used for commercial purposes relying on that registration. Division 4 allows product models to be exempted from requirements, or aspects of requirements, of GEMS determinations. Division 2—Making GEMS determinations 23 Minister may make GEMS determinations (1) The Minister may, by legislative instrument, make a determination that specifies one or more classes of products that it covers, if the products in those classes: (a) use energy; or (b) affect the amount of energy used by other products. Note: A determination under this subsection is referred to in this Act as a GEMS determination and classes of product covered by GEMS determinations are referred to as product classes (see section 11). (2) A GEMS determination may specify one or more classes of product that are not covered by the determination. 24 GEMS requirements—general (1) A GEMS determination must specify either or both of the following for each product class covered by the determination: (a) GEMS level requirements in accordance with section 25; (b) GEMS labelling requirements in accordance with section 26. (2) A GEMS determination may also specify other requirements, in accordance with section 27, for a product class covered by the determination. Note: Offences apply in relation to supplying a GEMS product, or using a GEMS product for a commercial purpose, if requirements of a GEMS determination are not complied with (see Part 3). 25 GEMS requirements—GEMS level requirements The GEMS level requirements for a product class are as follows: (a) requirements relating to one or more of the following: (i) the amount of energy used by operating products in that product class; (ii) the amount of greenhouse gases resulting from operating products in that product class; (iii) the effect of those products on the amount of energy used by operating other products; (b) requirements for conducting tests in relation to products in that product class, using the methods specified in the determination, in order to determine whether products in that product class meet the requirements referred to in paragraph (a). 26 GEMS requirements—GEMS labelling requirements (1) The GEMS labelling requirements for a product class are as follows: (a) requirements relating to the information that must be communicated in connection with supplying or offering to supply products in that product class (see subsection (2)); (b) requirements relating to the manner in which that information must be communicated (see subsection (2)); (c) requirements for conducting tests in relation to products in that product class, using the methods specified in the determination, in order to rate them against criteria specified for the product class in the determination for the purposes of complying with a requirement under paragraph (a). Note: Requirements under paragraph (a) or (b) may relate, for example, to one or more of the following: (a) the characteristics, contents, placement and quality of labels or marks attached or applied to products or displayed on packaging for products; (b) documents or other material used for, or provided in connection with, the supply of products; (c) advertising products. (2) A requirement may only be specified under paragraph (1)(a) or (b) in relation to a product class for the purpose of: (a) ensuring that products in that product class can be compared with other products in relation to a matter that is, or could be, the subject of a requirement of the GEMS determination for that product class; or (b) assisting with monitoring compliance with this Act; or (c) providing a transition to regulation of products in the product class under the GEMS determination (including because the products were not previously covered by a GEMS determination or because the GEMS determination is a replacement determination); or (d) ensuring that, if the product class is specified by reference to the intended or expected end use of the products, the intended or expected end use is communicated in connection with supplying or offering to supply products in that product class. Note 1: The expression this Act has an extended meaning (see the Dictionary in section 5). Note 2: A requirement specified for the purpose of paragraph (2)(c) is a transitional GEMS labelling requirement. 27 GEMS requirements—other requirements (1) A GEMS determination may specify any or all of the following for any one or more product classes covered by the determination: (a) requirements for products in that product class to meet a specified level (the high efficiency level) at a particular time (see subsection (2)); (b) requirements relating to the performance of products in that product class (see subsection (3)); (c) requirements relating to the impact of products in that product class on the environment or the health of human beings (see subsection (3)); (d) requirements of a kind specified in the regulations for the purposes of this paragraph; (e) requirements for conducting tests in relation to products in that product class, using the methods specified in the determination, in relation to a requirement mentioned in paragraph (a), (b), (c) or (d). (2) The requirements referred to in paragraph (1)(a) (high efficiency level) must relate to one or more of the following: (a) the amount of energy used by operating products in that product class; (b) the amount of greenhouse gases resulting from operating products in that product class; (c) the effect of those products on the amount of energy used by operating other products that use energy. (3) Requirements may be specified in relation to a product class under paragraph (1)(b) (product performance) or (c) (impact of products on environment or human health) only if: (a) the GEMS determination also specifies GEMS level requirements for the product class; or (b) all of the following apply: (i) the GEMS determination also specifies GEMS labelling requirements for the product class; (ii) the requirements specified under paragraph (1)(b) or (c) enhance the efficacy of the specified GEMS labelling requirements; (iii) the specified GEMS labelling requirements relate to one or more of the matters specified in any of the paragraphs in subsection (2). 27A GEMS requirements—deemed compliance (1) The GEMS Regulator may, by legislative instrument, declare that specified classes of products or specified models of GEMS products are taken, for the purposes of this Act, to comply with one or more requirements, or one or more aspects of one or more requirements, of a specified GEMS determination: (a) in specified circumstances; or (b) if specified conditions are complied with. (2) Without limiting subsection (1), if a GEMS determination specifies requirements for conducting tests using methods specifie