Product Emissions Standards Act 2017 No. 104, 2017
An Act to improve air quality by regulating emissions from certain products, and for related purposes
Note: An electronic version of this Act is available on the Federal Register of Legislation(https://www.legislation.gov.au/)
Product Emissions Standards Act 2017
No. 104, 2017
An Act to improve air quality by regulating emissions from certain products, and for related purposes
[Assented to 14 September 2017]
The Parliament of Australia enacts:
Part 1—Preliminary
1 Shorttitle
This Act is the Product Emissions Standards Act 2017.
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 itsterms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this Act | The day after this Act receives the Royal Assent. | 15 September 2017 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendmentsof thisAct.
(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 thisAct.
3 Objects of thisAct
The objects of this Act are:
(a) to regulate emissions from certain products by setting emissions standards;and
(b) in doing so, to achieve either or both of thefollowing:
(i) contribute to improving air quality in Australia in order to deliver associated health and environmentalbenefits;
(ii) assist in giving effect to Australia’s obligations under one or more of the Climate ChangeConventions.
Note: For Climate Change Conventions, see section7.
4 Simplified outline of thisAct
5 Extension to externalTerritories
(1) This Act extends to every externalTerritory.
(2) The Regulatory Powers Act, as it applies in relation to this Act, extends to every externalTerritory.
6 Act binds theCrown
(1) This Act binds the Crown in each of itscapacities.
(2) This Act does not make the Crown liable tobe:
(a) prosecuted for an offence;or
(b) subject to civil proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act;or
(c) given an infringement notice under Part 5 of the Regulatory PowersAct.
(3) The protection in subsection (2) does not apply to an authority of the Crown.
7 Definitions
(1) In thisAct:
Australia includes the external Territories.
certified for the purposes of this Act means certified for the purposes of this Act in accordance with the rules.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Climate Change Conventions means:
(a) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992;and
(b) the Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 11 December 1997;and
(c) the Paris Agreement, done at Paris on 12 December 2015; as amended and in force for Australia from time totime.
Note: The Convention, the Protocol and the Agreement are in Australian Treaty Series 1994 No. 2 ([1994] ATS 2), 2008 No. 2 ([2008] ATS2)
and 2016 No. 24 ([2016] ATS 24), respectively. In 2017 they could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)
emissions-controlled product means a product that is prescribed by the rules for the purposes of section 9.
emissions standard means a standard dealing with matters relating to emissions from products.
engage in conduct includes omitting to perform an act.
evidential material has the same meaning as in the Regulatory Powers Act.
forfeiture notice has the meaning given by subsection 34(2).
inspector means a person appointed under section41.
manufacture, for a product prescribed for the purposes of the definition of product, means produce by anymethod.
mark includes label.
person assistingan authorised person has the same meaning as in the Regulatory Powers Act.
product means a thing (including a substance or mixture of substances) that is:
(a) manufactured; or
(b) prescribed by the rules for the purposes of thisdefinition.
regulatory authority includes a regulatory authority of, or located in, a foreign country.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
reporting period, for an emissions-controlled product, means a period prescribed by the rules.
rules means rules made under section 51.
Secretary means the Secretary of the Department.
supply, in relation to a product, has the meaning given by subsection (2).
this Act includes instruments made under this Act.
(2) A supply of a product means a supply in the course of trading or commercialactivities.
(3) For the purposes of subsection (2), supplyincludes:
(a) an offer to supply (including making available, exposing, displaying or advertising the product);and
(b) a supply (including a resupply) by way of sale, exchange, gift, lease, loan, hire or hire-purchase;and
(c) a supply as part of the supply of anotherthing.
(4) For the purposes of subsection (2), it is irrelevant whether the supplyis:
(a) for consideration; or
(b) a wholesale or retailsupply.
Part 2—Emissions-controlled products
8 Simplified outline of thisPart
9 Emissions-controlledproducts
The rules may prescribe a product as an emissions-controlled product.
10 Certification
(1) The rules may provide for an emissions-controlled product to be certified for the purposes of thisAct.
Product must meet emissions standard
(2) However, the rules must not provide for a product to be certified for the purposes of this Actunless:
(a) the Secretary is satisfied that the product complies with an emissions standard set out in the rules for the product;or
(b) the product iscertified:
(i) by a regulatory authority specified in the rules for the product;and
(ii) as meeting an emissions standard specified in the rules for theproduct.
Note: For regulatory authority, see section7.
Other requirements
(3) The rules may prescribe other requirements for, or in relation to, certifying a product for the purposes of thisAct.
(4) Without limiting subsection (3), the requirements may include requirements relating to thefollowing:
(a) applications forcertification;
(b) processes and criteria for certification, includingtesting;
(c) processes for suspending or revokingcertification;
(d) the use of marks to indicatecertification.
Note: The rules may provide for charging fees and for review of decisions: see subsection51(2).
11 Exemptions
(1) The rules may provide for the exemptionof:
(a) a specified emissions-controlled product from one or more provisions of this Act; or
(b) a specified emissions-controlled product or person from one or more provisions of this Act in the circumstances set out in therules.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) Without limiting paragraph (1)(b), the circumstances may include that a person has:
(a) applied for and been granted an exemption;or
(b) given the Secretary specified notice or information;or
(c) taken other action required by therules.
(3) The rules may provide processes for, and other requirements in relation to, obtaining, varying, suspending or revokingexemptions.
Note: The rules may provide for charging fees: see subsection51(2).
(4) The rules may provide for the Secretary to make decisions in relation to exemptions, including deciding whether to grant an exemption.
Note: The rules may provide for review of decisions: see subsection51(2).
Part 3—Enforcing product emissions standards
Division 1—Simplified outline of this Part
12 Simplified outline of thisPart
Division 2—Importing emissions-controlled products
13 Import of product that is notcertified
(1) A person contravenes this subsectionif:
(a) the person imports a product;and
(b) the product is an emissions-controlled product;and
(c) the product is not certified for the purposes of thisAct.
(2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product issuspended.
Strict liabilityoffence
(3) A person commits an offence of strict liability if the person contravenes subsection(1).
Penalty: 60 penalty units.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection(1).
Civilpenalty: 120 penaltyunits.
14 Import of product that is not marked asrequired
(1) A person contravenes this subsectionif:
(a) the person imports a product;and
(b) the product is an emissions-controlled product that is certified for the purposes of this Act;and
(c) the rules impose requirements for marking the product;and
(d) the product is not marked in the way required by therules.
Strict liability offence
(2) A person commits an offence of strict liability if the person contravenes subsection(1).
Penalty: 60 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection(1).
Civilpenalty: 120 penaltyunits.
Division 3—Supplying emissions-controlled products
15 Supply of product that is notcertified
(1) A person contravenes this subsectionif:
(a) the person supplies a product;and
(b) the product is an emissions-controlled product;and
(c) the product is not certified for the purposes of thisAct.
(2) For the purposes of paragraph (1)(c), a product is taken to be not certified if the certification of the product issuspended.
Strict liabilityoffence
(3) A person commits an offence of strict liability if the person contravenes subsection(1).
Penalty: 60 penalty units.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection(1).
Civilpenalty: 120 penaltyunits.
16 Supply of product that is not marked asrequired
(1) A person contravenes this subsectionif:
(a) the person supplies a product;and
(b) the product is an emissions-controlled product that is certified for the purposes of this Act;and
(c) the rules impose requirements for marking the product;and
(d) the product is not marked in the way required by therules.
Strict liability offence
(2) A person commits an offence of strict liability if the person contravenes subsection(1).
Penalty: 60 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection(1).
Civilpenalty: 120 penaltyunits.
Division 4—Marking emissions-controlled products
17 Marking product that is not certified
(1) A person contravenes this subsectionif:
(a) the person applies a mark to a product;and
(b) the product is to be imported into, or supplied in, Australia; and
(c) the product is an emissions-controlled product;and
(d) the rules require the product to be marked if the product is certified for the purposes of this Act;and
(e) the mark indicates that the product is so certified;and
(f) the product is not socertified.
(2) For the purposes of paragraph (1)(f), a product is taken to be not certified if the certification of the product issuspended.
Strict liabilityoffence
(3) A person commits an offence of strict liability if the person contravenes subsection(1).
Penalty: 60 penalty units.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection(1).
Civilpenalty: 120 penaltyunits.
18 Incorrect marking ofproduct
(1) A person contravenes this subsectionif:
(a) the person applies a mark to a product;and
(b) the product is to be imported into, or supplied in, Australia; and
(c) the product is an emissions-controlled product;and
(d) the rules impose requirements for marking the product if the product is certified for the purposes of this Act;and
(e) the mark indicates that the product is so certified;and
(f) the mark is not in accordance with the requirements in the rules.
Strict liability offence
(2) A person commits an offence of strict liability if the person contravenes subsection(1).
Penalty: 60 penalty units.
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection(1).
Civilpenalty: 120 penaltyunits.
Part 4—Record keeping
19 Simplified outline of thisPart
20 Rules may provide record-keepingrequirements
(1) The rules may require a person who imports orsupplies
emissions-controlled products to make and keep records in relation to the imports or supplies.
(2) A person contravenes this subsectionif:
(a) the rules require the person to make or keep a record;and
(b) the person fails to comply with therequirement.
Strict liability offence
(3) A person commits an offence of strict liability if the person contravenes subsection(2).
Penalty: 40 penalty units.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection(2).
Civilpenalty: 80 penaltyunits.
21 Secretary may require recordedinformation
(1) The Secretary may, by notice in writing, require a person to give the Secretary information that the person is required by the rules to keep in a record, if the Secretary reasonably suspectsthat:
(a) a provision of this Act has been contravened or is being contravened; and
(b) the information is relevant to the suspectedcontravention.
(2) The noticemust:
(a) identify the information that must be given to the Secretary; and
(b) state the day the information must be given by, which must be a reasonable period after the notice is given to theperson.
(3) The Secretary may, on application by the person, change the day the information must be given by to a laterday.
(4) A person contravenes this subsectionif:
(a) the person is required to give information under this section; and
(b) the person fails to comply with therequirement.
Strict liability offence
(5) A person commits an offence of strict liability if the person contravenes subsection(4).
Penalty: 40 penalty units.
Civil penalty provision
(6) A person is liable to a civil penalty if the person contravenes subsection(4).
Civilpenalty: 80 penaltyunits.
22 Reporting on supply of products manufactured inAustralia
(1) The rules may prescribe a reporting period for an emissions-controlledproduct.
(2) If, during a reporting period for an emissions-controlled product that is manufactured in Australia, a person makes the first supply of the product, the person must give to the Secretary a report containing the information prescribed by the rules relating to such products that the person has so supplied during the reporting period.
(3) The report must be given to the Secretary no later than 60 days after the end of the reportingperiod.
(4) A reference to supply in subsection (2) does not include an offer to supply.
Note: For the usual definition of supplyin this Act, see subsections 7(2) to (4).
(5) A person contravenes this subsectionif:
(a) the person is required by subsection (2) to give a report to the Secretary for a reporting period for an emissions-controlled product;and
(b) the person does not give the Secretary the report in the period ending 60 days after the end of the reportingperiod.
Strict liability offence
(6) A person commits an offence of strict liability if the person contravenes subsection(5).
Penalty: 60 penalty units.
Civil penalty provision
(7) A person is liable to a civil penalty if the person contravenes subsection(5).
Civilpenalty: 120 penaltyunits.
Part 5—Regulatory powers
23 Simplified outline of thisPart
24 Monitoringpowers
(1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if itis:
(a) a provision of this Act; or
(b) an offence against the Crimes Act 1914 or the CriminalCode
that relates to this Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry andinspection.
(2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory PowersAct.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry andinspection.
(3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to thisAct:
(a) there are no related provisions;and
(b) an inspector is an authorised applicant;and
(c) an inspector is an authorised person;and
(d) a magistrate is an issuing officer;and
(e) the Secretary is the relevant chief executive;and
(f) each of the following is a relevantcourt:
(i) the Federal Court ofAustralia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under thisAct.
(4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to offences and civil penalty provisions of thisAct.
25 Investigation powers
(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if itis:
(a) an offence provision of this Act;or
(b) a civil penalty provision of this Act;or
(c) an offence against the Crimes Act 1914 or the CriminalCode
that relates to this Act.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search andseizure.
(2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to thisAct:
(a) there are no related provisions;and
(b) an inspector is an authorised applicant;and
(c) an inspector is an authorised person;and
(d) a magistrate is an issuing officer;and
(e) the Secretary is the relevant chief executive;and
(f) each of the following is a relevantcourt:
(i) the Federal Court ofAustralia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under thisAct.
(3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to offences and civil penalty provisions of thisAct.
26 Civil penaltyprovisions
(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory PowersAct.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of theprovision.
(2) For the purposes of Part 4 of the Regulatory Powers Act as it applies in relation to thisAct:
(a) an inspector is an authorised applicant;and
(b) each of the following is a relevantcourt:
(i) the Federal Court ofAustralia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under thisAct.
27 Infringementnotices
(1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory PowersAct:
(a) an offence provision of this Act that is an offence of strict liability;
(b) a civil penalty provision of thisAct.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation toprovisions.
(2) For the purposes of Part 5 of the Regulatory Powers Act as it applies in relation to thisAct:
(a) an inspector is an infringement officer;and
(b) the Secretary is the relevant chiefexecutive.
28 Enforceableundertakings
(1) The following provisions are enforceable under Part 6 of the Regulatory PowersAct:
(a) an offence provision of thisAct;
(b) a civil penalty provision of thisAct.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance withprovisions.
(2) For the purposes of Part 6 of the Regulatory Powers Act as it applies in relation to thisAct:
(a) an inspector is an authorised person;and
(b) each of the following is a relevantcourt:
(i) the Federal Court ofAustralia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under thisAct.
29 Injunctions
(1) The following provisions are enforceable under Part 7 of the Regulatory PowersAct:
(a) an offence provision of thisAct;
(b) a civil penalty provision of thisAct.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforceprovisions.
(2) For the purposes of Part 7 of the Regulatory Powers Act as it applies in relation to thisAct:
(a) an inspector is an authorised person;and
(b) each of the following is a relevantcourt:
(i) the Federal Court ofAustralia;
(ii) the Federal Circuit Court of Australia;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under thisAct.
Part 6—Forfeiture of emissions-controlled products
Division 1—Simplified outline of this Part
30 Simplified outline of thisPart
Division 2—Forfeiture following conviction or making of civil penalty order
31 Product forfeited to Commonwealth
(1) This section applies if a person is convicted of an offence, or ordered to pay a civil penalty, for contravening a provision of Part3.
(2) The product concerned is forfeited to theCommonwealth.
32 Power to seize forfeitedproduct
(1) An inspector may seize a product that is forfeited under section31.
(2) Without limiting subsection (1), the product may be seized by attaching to the product, or to the container in which the product is held, a notice in writing signed by the inspectorthat:
(a) identifies the product;and
(b) states that the product has been seized under this section;and
(c) specifies the reason for theseizure.
(3) An inspector must give a copy of the notice as soon as practicable to the owner of the product or the person from whom the product wasseized.
33 Person must not interfere with seizedproduct
(1) A person commits an offenceif:
(a) the person engages in conduct;and
(b) the conduct causes an emissions-controlled product to be moved, altered or interfered with;and
(c) the product is the subject of a notice under subsection 32(2). Penalty: Imprisonment for 6months.
(2) Subsection (1) does not apply if the person engages in the conduct in accordance with a direction given to the person by theMinister.
Note: The defendant bears an evidential burden in relation to the matterin subsection (2): see subsection 13.3(3) of the CriminalCode.
(3) A person commits an offenceif:
(a) the person is given a notice under subsection 32(3);and
(b) the person does not take all reasonable precautions to prevent the product being moved, altered or interfered with except in accordance with a direction given by theMinister.
Penalty: Imprisonment for 6months.
Division 3—Forfeiture of seized products
34 Forfeiturenotices
(1) This section appliesif:
(a) an inspector seizes an emissions-controlled product under Part 3 of the Regulatory Powers Act as it applies in relation to this Act; and
(b) the inspector reasonably suspects that a provision of Part 3 of this Act was contravened in relation to theproduct.
(2) The inspector may, within 7 days after the product is seized, give a written notice (the forfeiture notice) to the owner of theproduct.
(3) If the owner of the product cannot be identified after reasonable inquiry, the inspector may give the forfeiture notice to the person from whom the product wasseized.
(4) The noticemust:
(a) identify the product;and
(b) state that the product has been seized; and
(c) specify the reason for the seizure;and
(d) state that the product will be forfeited to the Commonwealth unless a court, on application under section 35, orders the product to bereturned.
35 Claims for return of seizedproduct
(1) This section applies if a forfeiture notice is given in relation to an emissions-controlledproduct.
(2) The owner of the product or the person from whom the product was seized may apply to one of the following for an order that the product be returned:
(a) the Federal Court ofAustralia;
(b) the Federal Circuit Court of Australia;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under thisAct.
(3) The application must be made within 60 days after the forfeiture notice isgiven.
(4) The court must order that the product be returnedif:
(a) an application for the order was made in accordance with this section; and
(b) the court is satisfied that no provision of Part 3 was contravened in relation to theproduct.
(5) If the court orders that the product be returned, the Commonwealth must take reasonable steps to return the product to theapplicant.
(6) Subsection (5) does not applyif:
(a) proceedings for which the product may provide evidence were instituted before the order was made, and have not been completed (including any appeal);or
(b) returning the product could cause an imminent risk of death, serious illness, serious injury or serious damage to the environment; or
(c) an inspector is otherwise authorised (by a law or an order of a court) to retain, destroy or dispose of theproduct.
36 Forfeiture of seized product to theCommonwealth
A product in relation to which a forfeiture notice is given is forfeited to the Commonwealth if:
(a) no application has been made under section 35 for an order that the product be returned;or
(b) such an application has been made, and the court decides not to soorder.
37 Right of compensation in certaincircumstances
(1) The person who owned an emissions-controlled product forfeited to the Commonwealth under section 36 may apply to one of the following forcompensation:
(a) the Federal Court ofAustralia;
(b) the Federal Circuit Court of Australia;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under thisAct.
(2) The court must order that the Commonwealth pay compensation to the applicant if the court is satisfiedthat:
(a) the applicant owned the product immediately before it was forfeited; and
(b) either:
(i) Part 3 of the Regulatory Powers Act, as it applies in relation to this Act, was not complied with in relation to the seizure of the product;or
(ii) if the product was forfeited under paragraph 36(a)—no provision of Part 3 of this Act was contravened in relation to theproduct.
(3) The amount of compensation must be the market value of the product at the time the product was forfeited under section36.
Division 4—General provisions
38 Forfeited products become property ofCommonwealth
Products forfeited to the Commonwealth under section 31 or 36 become the property of the Commonwealth.
39 Disposal of forfeitedproducts
(1) Products forfeited under section 31 or 36 must be dealt with and disposed of in accordance with the directions of theMinister.
(2) The forfeited products must not besold.
Part 7—Miscellaneous
40 Simplified outline of thisPart
41 Inspectors
(1) The Secretary may, in writing, appoint an APS employee as an inspector for the purposes of thisAct.
(2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.
(3) An inspector must, in performing functions or exercising powers as an inspector, comply with any directions of theSecretary.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislativeinstrument.
42 Publication of information relating to certifications and exemptions
(1) The Secretary may publish information relating toan
emissions-controlled product that is certified for the purposes of this Act, including but not limited to:
(a) information that identifies the product and the manufacturer of the product;and
(b) information about emissions from the product;and
(c) information about thecertification.
(2) The Secretary may publish information relating to an exemption of an emissions-controlled product or a person from a provision of this Act, including but not limitedto:
(a) circumstances in which the exemption applies;and
(b) reasons for the exemption;and
(c) the person who applied for theexemption.
43 Disclosure ofinformation
(1) The Secretary may disclose information obtained under this Actto:
(a) the Australian Border Force (within the meaning ofthe
Australian Border Force Act 2015); or
(b) an agency, body or person prescribed by therules;
if the Secretary reasonably believes that the information will enable or assist the agency, body or person to exercise its powers, or perform its functions or duties.
Note: Subsection 51(6) has requirements relating to rules made for the purposes of paragraph(b).
(2) This section does not limit any other powers the Secretary has to disclose information to aperson.
44 Complianceaudits
(1) This section applies if theMinister:
(a) reasonably suspects that a person has engaged or is engaging in conduct thatconstitutes:
(i) an offence against this Act;or
(ii) a contravention of a civil penalty provision;and
(b) is satisfied that it would be in the public interest to give the person a notice under thissection.
(2) The Minister may, by written notice given to the person, require the person:
(a) to undertake, or arrange for another person to undertake, an audit of whichever of the following is specified in thenotice:
(i) the person’s compliance with thisAct;
(ii) one or more specified aspects of the person’s compliance with this Act;and
(b) to give the Minister a written report setting out the results of theaudit.
(3) The notice mustspecify:
(a) if the notice requires the person to arrange another person to undertake the audit—requirements relating to the qualifications and independence of the other person;and
(b) the matters to be covered by the audit;and
(c) the period within which the audit must be undertaken;and
(d) the form and content of the report;and
(e) the period within which the report must be given to the Minister.
(4) A notice under subsection (2) is not a legislativeinstrument.
(5) A person contravenes this subsection if the person is subject to a requirement under subsection (2) and the person fails to comply with therequirement.
Strict liability offence
(6) A person commits an offence of strict liability if the person contravenes subsection(5).
Penalty: 40 penalty units.
Civil penalty provision
(7) A person is liable to a civil penalty if the person contravenes subsection(5).
Civilpenalty: 80 penaltyunits.
45 Delegation by the Minister
(1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act (except section 51)to:
(a) the Secretary; or
(b) an SES employee, or acting SES employee, in the Department.
Note 1: Section 51 gives the Minister power to makerules.
Note 2: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act1901.
(2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of theMinister.
Note: See also sections 34AA and 34AB of the Acts Interpretation Act1901.
46 Delegation by the Secretary
(1) The Secretary may, by writing, delegate all or any of his or her powers or functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act,to:
(a) an SES employee or acting SES employee in the Department; or
(b) an APS employee who occupies, or performs the duties of, a position not below Executive Level 2 or equivalent in the Department.
Note: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.
(2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of theSecretary.
Note: See also sections 34AA and 34AB of the Acts Interpretation Act1901.
47 Review of operation of Act
(1) The Minister must cause a review of the operation of this Act to be undertaken as soon as possible after the seventh anniversary of its commencement and afterwards at intervals of no longer than 10 years.
(2) The person undertaking a review must give the Minister a written report of the review.
(3) The Minister must cause a copy of the report of a review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to theMinister.
48 Physical elements ofoffences
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits anoffence.
(2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct ruleprovision.
Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
49 Contravening offence and civil penaltyprovisions
(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 civilpenalty.
(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 conductprovision.
50 Alternative constitutionalbases
(1) Without limiting the effect of this Act apart from this section, this Act also has effect as provided by thissection.
(2) To avoid doubt, no subsection of this section limits the operation of any othersubsection.
Import
(3) This Act has the effect it would have if each reference to import were expressly confined to import in the course of trade or commerce.
34 Product Emissions StandardsAct2017 No. 104, 2017
Supply
(4) This Act has the effect it would have if each reference to supply were expressly confined to supply in the course of trade or commerce:
(a) between Australia and places outside Australia;or
(b) among the States;or
(c) within a Territory, between a State and a Territory or between 2Territories.
Corporations power
(5) This Act has the effect it would have if each reference to a person were expressly confined to a corporation towhich
paragraph 51(xx) of the Constitution applies.
51Rules
(1) The Minister may, by legislative instrument, make rules prescribingmatters:
(a) required or permitted by this Act to be prescribed by the rules;or
(b) necessary or convenient to be prescribed for carrying out or giving effect to thisAct.
(2) Without limiting subsection (1), the rules may providefor:
(a) charging fees for services provided in the performance of functions under this Act;and
(b) the review of decisions made under thisAct.
(3) Rules setting out an emissions standard for the purposes of paragraph 10(2)(a) may apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time if the instrument or writing is produced by one or more of thefollowing:
(a) the International Electrotechnical Commission;
(b) the International Organization forStandardization;
(c) the United Nations Economic Commission forEurope;
(d) any other organisation prescribed by therules.
No.104,2017 Product Emissions StandardsAct2017 35
(4) Rules specifying an emissions standard for the purposes of subparagraph 10(2)(b)(ii) may specify a standard as in force or existing from time totime.
(5) To avoid doubt, the rules may not do thefollowing:
(a) create an offence or civilpenalty;
(b) provide powersof:
(i) arrest or detention;or
(ii) entry, search orseizure;
(c) impose atax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in thisAct;
(e) directly amend the text of thisAct.
(6) Before making rules for the purposes of paragraph 43(1)(b), the Minister must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of thatconsultation.
(7) The rules may provide for the collection and recovery of charges imposed by the Product Emissions Standards (Customs) Charges Act 2017 and the Product Emissions Standards (Excise) Charges Act 2017.
[Minister’s second reading speech made in— House of Representatives on 10 August 2017 Senate on 7 September 2017]
(152/17)
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