Document ID: chunk:federal_register_of_legislation:F2024C00514:clause:5_16:p1
Version: federal_register_of_legislation:F2024C00514
Segment Type: clause
Provision Reference: sch 5 cl 16 (pt 1/2)
Character Range: 20060–22728

16  Prohibition – possession and the EMC standard
 (1) A person must not possess a device that does not comply with the EMC standard, if the possession is for the purpose of operation.
 (2) For the purposes of subsection (1), if:
 (a) at a particular time, a person has a device in the person's possession, otherwise than for the purpose of supplying the device to another person; and
 (b) the device can be operated;
  it must be presumed that the person has the device in the person's possession for the purpose of operating the device, unless the person adduces or points to evidence that suggests a reasonable possibility that, at that time, the person did not have the device in the person's possession for the purpose of operating the device.
 (3) For the purposes of subsection (2), it is immaterial whether the device can be operated:
 (a) immediately; or
 (b) after taking one or more steps (for example, the connection of the device to a power supply).
 (4) A reference in this section to a person having a device in the person's possession includes a reference to the person having it under control in any place whatever, whether for the use or benefit of that person or another person, and although another person has the physical possession or custody of it.
 (5) Subsection (1) does not apply where:
 (a) a person holds a permit that authorises the person to possess a device; and
 (b) the permit specifies the EMC standard; and
 (c) the person possesses a device that does not comply with the EMC standard; and
 (d) the possession occurs in accordance with the permit.
 (6) Subsection (1) does not apply in relation to possession of a device unless:
 (a) the person mentioned in subsection (1) is a constitutional corporation; or
 (b) the operation mentioned in subsection (1) is, or would be, in the course of, or in relation to:
 (i) trade or commerce between Australia and places outside Australia; or
 (ii) trade or commerce among the States; or
 (iii) trade or commerce within a Territory, between a State and a Territory, or between two Territories; or
 (iv) the supply of goods or services to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory; or
 (v) the defence of Australia; or
 (vi) the operation of lighthouses, lightships, beacons or buoys; or
 (vii) astronomical or meteorological observations; or
 (viii) an activity of a constitutional corporation; or
 (ix) banking, other than State banking; or
 (x) insurance, other than State insurance; or
 (xi) weighing or measuring; or
 (c) the operation mentioned in subsection (1) was, or would be, likely to interfere with the operation