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2008
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL MEASUREMENT AMENDMENT
BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Small Business, Independent
Contractors and the Service Economy, Minister Assisting the Finance
Minister on Deregulation, the Honourable Dr Craig Emerson MP)
Contents
OUTLINE 8
FINANCIAL IMPACT STATEMENT 8
GENERAL NOTES 9
OFFENCE PROVISIONS IN THE BILL 9
Offences requiring a fault element 9
Strict liability offences 9
Extended geographical jurisdiction 10
POWERS OF TRADE MEASUREMENT INSPECTORS 10
NOTES ON CLAUSES 12
Schedule 1: - Trade Measurement 12
Definitions Items 1 to 55 12
Technical amendments Items 56 to 64 18
Item 65 Part VA 19
Part IV - Using measuring instruments for trade 19
Division 1 - Overview of Part 19
Section 18G Overview 19
Division 2 - Requirements for use of measuring instruments for trade 19
Section 18GA Measuring instruments used for trade to be verified 19
Section 18GB Installing unverified measuring instruments 20
Section 18GC Supplying unverified measuring instruments 21
Section 18GD Inaccurate use of measuring instruments 22
Section 18GE Using or supplying inaccurate measuring instruments 23
Division 3-Verification of measuring instruments 25
Section 18GF Overview 25
Section 18GG Meaning of verification 25
Section 18GH Who is permitted to verify measuring instruments other than
utility meters? 25
Section 18GI Who is permitted to verify utility meters? 26
Section 18GJ Register of verification marks 26
Section 18GK Requirements for verification 26
Section 18GL Standards of measurements to be used for verification 26
Offence provisions in Division 3 27
Section 18GM Using a verification mark when not permitted to do so 27
Section 18GN Sale or supply of measuring instrument marked by someone
not permitted to do so 28
Section 18GO Misleading marks 28
Section 18GP Wrongful possession of an instrument for making a
verification mark 30
Section 18GQ Obligation on repair of measuring instrument 31
Part V-General provisions on using measurement in trade 32
Section 18H Overview 32
Section 18HA When is an article packed in advance ready for sale? 32
Section 18HB Certain articles must be sold by measurement-articles
packed in advance ready for sale 32
Section 18HC Certain articles must be sold by measurement-other articles
34
Section 18HD Transactions based on measurement to be in prescribed units
of measurement 35
Section 18HE Measuring instruments used in transactions to have
prescribed scale intervals 36
Section 18HF Unreliable methods of measurement 37
Section 18HG Limiting use of certain measuring instruments 37
Section 18HH Measuring instruments and methods of measurement used in
monitoring compliance with the Act 38
Section 18HI Articles sold by measurement to be sold by net measurement
39
Part VI - Articles packed in advance ready for sale 41
Division 1 - Overview of Part 41
Section 18J Overview 41
Division 2-Marking packed articles 41
Subdivision 2 - A-Required package information 41
Section 18JA Package must be marked with required package information-
packer 41
Section 18JB Package must be marked with required package information-
importer 42
Section 18JC Package must be marked with required package information-
seller 44
Section 18JD Package must be marked with required package information-
possession, offer or exposure for sale 45
18JE Package must be marked in prescribed manner 47
Subdivision 2 B-Prohibited expressions 48
Section 18JF Using prohibited expressions-packer 48
Section 18JG Using prohibited expressions-seller 49
Section 18JH Using prohibited expressions-possession, offer or exposure
for sale 51
Division 3-Average Quantity System for packed articles 52
Subdivision 3 A-Preliminary 52
Section 18JI Overview of Division 52
Subdivision 3 B-AQS marks 52
Section 18JJ What is an AQS mark? 52
Section 18JK AQS mark must be used in accordance with regulations 52
Section 18JL Using misleading marks 53
Subdivision 3 C - Shortfall 55
Section 18JM Shortfall offence-packer 55
Section 18JN Shortfall offence-importer 57
Section 18JO Shortfall offence - possession, offer or exposure for sale
59
Section 18JP Shortfall offence - sale 60
Division 4-Packed Articles not marked with AQS mark 62
Subdivision 4-A - Overview 62
Section 18JQ Overview of Division 62
Subdivision 4-B - Shortfall offences 62
Section 18JR When is there a shortfall in the measurement of a packed
article? 62
Section 18JS Shortfall offence - packer 63
Section 18JT Shortfall offence - importer 65
Section 18JU Shortfall offence - possession, offer or exposure for sale
66
Section 18JV Shortfall offence - seller 69
Division 5 - Permits 71
Section 18JW Overview 71
Section 18JX Permits for certain packed articles 71
Section 18JY Register of permits 73
Section 18JZ Evidentiary certificate 73
Part VII - Other articles 73
Section 18K Overview 73
Section 18KA Measurement must be open to scrutiny if purchaser present
73
Section 18KB Purchaser must receive invoice stating measurement if not
present at sale 74
Section 18KC Articles sold by measurement - price of packaging 75
Section 18KD Shortfall offence - sale 76
Part VIII - Enforcement of Parts IV to VII 78
Division 1 - Overview 78
Section 18L - Overview 78
Division 2 - Evidentiary matters 78
Section 18LA Evidentiary certificate - shortfall offences 78
Section 18LB Certificate not to be admitted unless copy given to
defendant 14 days before certificate to be admitted in evidence 79
Section 18LC Person giving certificate may be called to give evidence 79
Section 18LD Evidence in support or rebuttal of matters in certificate
to be considered on its merits 79
Section 18LE Evidence - matters relating to packing 79
Division 3 - Infringement Notices 80
Section 18LF When an infringement notice can be given 80
Section 18LG Matters to be included in an infringement notice 81
Section 18LH Amount of penalty 81
Section 18LI Withdrawal of an infringement notice 81
Section 18LJ What happens if a penalty is paid 81
Section 18LK Effect of this Division on criminal proceedings 81
Division 4 - Additional enforcement options 82
Section 18LL Overview 82
Section 18LM Accepting undertakings 82
Section 18LN Enforcing undertakings 82
Section 18LO Injunctions 82
Section 18LP Secretary may publicise offences 83
Section 18LQ Affected contracts are voidable 83
Part IX - Trade Measurement Inspectors 83
Division 1 - Overview of Part 83
Section 18M Overview 83
Division 2 - Appointment of trade measurement inspectors and identity
cards 83
Section 18MA Appointment of trade measurement inspectors 83
Section 18MB Identity Card 84
Section 18MC Evidentiary certificate 85
Division 3 - Powers of trade measurement inspectors 85
Section 18MD Overview 85
Section 18ME Monitoring powers 85
Section 18MF Collecting evidential material 86
Section 18MG General Powers of trade measurement inspectors 87
Section 18MH - Trade measurement inspector may request persons to answer
questions or produce documents 88
Section 18MI English translation of book, record or document requested
by a trade measurement inspector 89
Section 18MJ Power to give directions in relation to re-verification 89
Section 18MK Power to verify measuring instruments on request 90
Section 18ML Evidentiary certificate- examination and calibration under
section 18MK 90
Section 18MM Trade measurement inspector must obliterate verification
mark 90
Division 4 - Obligations of trade measurement inspectors 90
Section 18MN Trade measurement inspector must produce identity card on
request 90
Section 18MO Details of warrant to be given to controller etc 91
Section 18MP Consent to enter residential premises 91
Section 18MQ Announcement on entry or inspection 91
Section 18MR Compensation for damage to electronic equipment 91
Section 18MS Copies of seized things to be provided 91
Section 18MT Receipt for things seized 92
Section 18MU Retention of seized things 92
Section 18MV Magistrate may permit a thing to be retained 92
Division 5 - Controller's rights and responsibilities 93
Section 18MW Controller entitled to be present during search 93
Section 18MX Controller must provide trade measurement inspector with
facilities and assistance 93
Division 6 - Warrants 93
Section 18MY Overview 93
Section 18MZ Monitoring warrants 93
Section 18MZA Warrants relating to the collection of evidential material
94
Section 18MZB Urgent warrant for the collection of evidential material
94
Section 18MZC Powers conferred on magistrates in their personal capacity
95
Section 18MZD Immunity of magistrates 95
Part X Servicing licensees 95
Section 18N Overview 95
Section 18NA Application for a servicing licence 95
Section 18NB Granting a licence 95
Sections 18NC, 18ND and 18NE Circumstances in which a licence must be
refused 96
Section 18NF Register of servicing licensees 96
Section 18NG Conditions may be imposed on servicing licences 96
Section 18NH Conditions on all servicing licences 96
Section 18NI Application to amend a condition of a servicing licence 96
Section 18NJ Application to change servicing licensee due to change of
partnership 96
Sections 18NK and 18NL Application for and renewal of servicing licences
97
Section 18NM Surrender and transfer of servicing licences 97
Section 18NN Order preventing employment of certain persons 97
Section 18NO Offence - breaching a condition of a servicing licence 97
Part XI - Public weighbridges 98
Division 1 - Public weighbridge licences 98
Section 18P Overview 98
Section 18PA Application for a servicing licence 98
Section 18PB Granting a licence 98
Sections 18PC, 18PD and 18PE Circumstances in which a licence must be
refused 98
Section 18PF Register of servicing licensees 98
Section 18PG Conditions may be imposed on public weighbridge licences
99
Section 18PH Conditions on all public weighbridge licences 99
Section 18PI Application to amend a condition of a public weighbridge
licence 99
Section 18PJ Application to change public weighbridge licensee due to
change of partnership 99
Section 18PK Application to contract out the operation of the public
weighbridge 99
Sections 18PL and 18PM Renewal of public weighbridge licences 99
Section 18PN Surrender and transfer of public weighbridge licences 99
Section 18PO Effect of relocation of a licensed public weighbridge
100
Section 18PP If weighbridge no longer suitable for use as a public
weighbridge 100
Section 18PQ Order preventing employment of certain persons 100
Section 18PR Order preventing contract with certain person to operate a
public weighbridge 101
Section 18PS Order preventing employee of a public weighbridge
contractor from operating a public weighbridge 101
Division 2 - Offences in relation to public weighbridges 102
Section 18PT Offence-making a public weighbridge available as a public
weighbridge when not licensed etc. 102
Section 18PU Offence - breaching a condition of a public weighbridge
licence 102
Part XII - Disciplinary action against servicing licensees and public
weighbridge licensees 103
Section 18Q Overview 103
Section 18QA Grounds for disciplinary action 103
Section 18QB Notice to licensee of grounds for disciplinary action
104
Section 18QC Taking disciplinary action 104
Section 18QD Accepting undertakings 105
Section 18QE Enforcing undertakings 105
Section 18QF Secretary may publicise grounds on which disciplinary
action taken, etc. 106
Part XIII - Utility meter verifiers 106
Division 1 - Appointment of utility meter verifiers on application
106
Section 18R Applying to be a utility meter verifier 106
Section 18RA Appointment of utility meter verifiers 106
Section 18RB Conditions on appointment of utility meter verifiers
107
Section 18RC Secretary must allocate utility meter verifier's mark
107
Division 2-Disciplinary action against utility meter verifiers appointed
on application 107
Section 18RD Notice to utility meter verifier of intention to take
disciplinary action 107
Section 18RE Secretary may seek further information 107
Section 18RF Secretary must consider verifier's submission and
information in making a decision under section 18RG 107
Section 18RG Taking of disciplinary action against a utility meter
verifier 107
Division 3-Appointing Commonwealth or State officials etc. as utility
meter verifiers 108
Section 18RH Appointment of Commonwealth or State officials etc. as
utility meter verifiers 108
Section 18RI Secretary must allocate verification marks to utility meter
verifiers appointed under section 18RH 108
Item 66 Part VI (heading repealed) 109
Part XIV Miscellaneous 109
Item 67 Paragraph 19A(1)(d) 109
Item 68 Subsection 19A(6) 109
Item 69 At the end of section 19A 109
Item 70 Paragraph 19AAA(1)(a) 109
Item 71 Subsection 19AAB(3) 109
Item 72 After section 19B 109
Section 19C Offences committed by employees - liability of employees
109
Section 19D Offences committed by employer - liability of employer
110
Section 19E Offences committed by agents - liability of agent 110
Section 19F Offences committed by agents - liability of principal
110
Section 19G Offence committed by a body corporate - liability of
directors etc 111
Section 19H Protected information 111
Section 19J Review of Administrative Appeals Tribunal of decisions under
this Act 111
Section 19K Jurisdiction of the Federal Court of Australia and the
Federal Magistrates Court 111
Section 19L Fees recoverable as a debt due to the Commonwealth 112
Section 19M Rights may be amended, suspended or cancelled etc. 112
Section 19N Compensation for acquisition of property 112
Section 19P Evidentiary matters-signature of Secretary or trade
measurement inspector 112
Items 73 and 75 Paragraph 20(1)(a) and (e) 112
Item 74 After paragraph 20(1)(a) 112
Item 76 Paragraph 20(1)(f) 112
Item 77 Paragraph 20(1)(g) 113
Item 78 Paragraph 20(1)(i) 113
Item 79 Paragraph 20(1)(j) 113
Item 80 After paragraph 20(1)(j) 113
Item 81 Paragraph 20(1)(k) 113
Item 82 Subparagraph 20(1)(l)(ii) 113
Item 83 At the end of paragraph 20(1)(l) 113
Item 84 At the end of subsection 20(1) 113
Item 85 Subsection 20(3) 114
Schedule 2 - Application and transitional provisions 114
Part 1 - Preliminary 114
Item 1 Definitions 114
Part 2 - General application provisions 115
Item 2 Application of Part IV of new law 115
Item 3 Application of Parts V, VI and VII of new law 115
Item 4 Application of section 18LE of new law 115
Item 5 Application of 18LQ, 18PR and 18PS of new law. 115
Item 6 Licenses granted under Part X of new law 115
Item 7 Licences granted under Part XI of new law 116
Part 3 -Marks and verification generally 116
Item 8 Continued recognition of existing verification and
certification marks 116
Item 9 Continued use of existing licensee's mark 116
Part 4 Permits 116
Item 10 Permits in relation to compulsory product information 116
Item 11 Permits in relation to prohibited expressions 117
Part 5 Servicing licenses and pubic weighbridge licenses 117
Item 12 Servicing licences and public weighbridge licences continue in
force 117
Item 13 Transitional provisions-public weighbridge no longer suitable
for use 118
Item 14 Order preventing employment of certain persons 118
Item 15 Proceeding under new law if disciplinary action not yet
commenced 119
Item 16 Proceeding under earlier corresponding law if disciplinary
action commenced 119
Item 17 Disqualification continues in force 119
Part 6-Utility meters 120
Item 18 Continued recognition of existing verification marks - utility
meters 120
Item 19 Continued use of existing verifying authority's mark - utility
meters 120
Item 20 Verifying authorities under old law become verifiers under new
law 120
Item 21 Proceedings under new law if disciplinary action not yet
commenced 121
Item 22 Proceedings under earlier corresponding law if disciplinary
action commenced 121
Part 7 - Miscellaneous 121
Item 23 National instrument test procedures 121
Item 24 Definition of approved pattern 121
NATIONAL MEASUREMENT AMENDMENT BILL 2008
OUTLINE
The National Measurement Amendment Bill 2008 amends the National
Measurement Act 1960 (Cth) to introduce a national system of trade
measurement based on the current trade measurement systems of the states
and territories.
Following a review of the state and territory trade measurement systems,
Council of Australian Governments (COAG) decided that a national
(Commonwealth) system should be introduced. This Bill gives effect to that
policy decision. The Bill also introduces some measures that have been
approved by the Ministerial Council on Consumer Affairs (MCCA) for
inclusion in the uniform state and territory trade measurement legislation
but have not been introduced in all jurisdictions
The Bill repeals the current trade measurement provisions of Part VA that
are specific to utility metering and inserts general trade measurement
provisions, including:
. requirements for measuring instruments in use for trade (Part IV);
. general provisions for using measurement in trade (Part V);
. requirements for measurement of pre-packaged goods (Part VI). This
includes the introduction of the average quantity system (AQS) that
was previously approved for introduction into the National Measurement
Act 1960;
. enforcement provisions, specifying evidential material and providing
for the use of infringement notices and enforceable undertakings (Part
VIII);
. requirements for the appointment of Commonwealth trade measurement
inspectors, their powers (that replicate the current powers of state
and territory trade measurement inspectors) and their obligations
(Part IX);
. licensing provisions for the verifiers of measuring instruments (Part
X) and the operation of public weighbridges (Part XI); and
. requirements for the appointment of verifiers of utility meters (Part
XIII).
The AQS provisions in this Bill may be accessed by industry on a voluntary
basis and are intended to support the export of pre-packaged goods such as
wine from Australia by providing parity for Australian exports of packaged
goods with similar products from other countries. Australian industry
strongly supports the introduction of an AQS system.
A number of technical amendments are included to facilitate the working of
the Act.
FINANCIAL IMPACT STATEMENT
Funding of $31.65m, including $3m capital and $2.3m depreciation, was
provided to the Department for the transition to a national system of trade
measurement and its first year of its operation (2007-08 to 2010-11).
Ongoing funding of $23.653m including $2.3m depreciation will be provided
from 2011-12.
GENERAL NOTES
OFFENCE PROVISIONS IN THE BILL
The offence provisions in the Bill will apply to a wide range of entities,
from small businesses to large multinational concerns, in a wide variety of
circumstances. This makes it desirable to have a range of enforcement
options appropriate to the different circumstances to which the Bill might
apply. Consequently, the Bill provides for: different categories of
offences in relation to particular conduct; for a range of responses,
depending on the circumstances of a particular suspected offence; and for
three tiers of penalties. The Bill does this in the following ways:
. a number of provisions in the Bill create offences requiring a
fault element and corresponding strict liability offences;
. as an alternative to prosecution, the Bill enables trade
measurement inspectors to issue infringement notices to
suspected offenders; and
. the Bill provides for three tiers of penalties, with the highest
penalties being imposed for fault element offences, lower
penalties for strict liability offences, and the lowest
penalties are payable under infringement notices.
Where appropriate, the offence provisions in the Bill also extend
geographical jurisdiction for offences committed outside Australia.
These issues are discussed in further detail immediately below, and in
relation to specific provisions later in this Explanatory Memorandum.
Offences requiring a fault element
A number of provisions in proposed Parts IV, V, VI and VII create offences
requiring a fault element.
Section 3.1(1) of the Criminal Code (which is contained in a Schedule to
the Criminal Code Act 1995) explains that an offence ordinarily consists of
physical elements and fault elements. A person will be guilty of an offence
requiring a fault element if it can be proved that the relevant physical
elements for that offence exist, and one of the fault elements for each
physical element is also proved.
The physical elements for offences requiring a fault element contained in
the Bill are set out in the proposed provisions creating those offences.
The fault elements are set out in Division 5 of Part 2.2 of the Criminal
Code.
The offences requiring a fault element that are proposed to be created by
the Bill have been designed to be consistent with the principles set out in
A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers, issued by the Attorney-General's Department, and in particular
Parts 4.3 and 4.4 of that Guide.
Strict liability offences
A number of provisions in proposed Parts IV, V, VI, VII, IX, X and XI
create strict liability offences.
Section 6.1 of the Criminal Code explains what is meant by 'strict
liability'. A person will be guilty of a strict liability offence if it can
be proved that the person committed a certain prohibited act. For example,
a person will breach proposed subsection 18GA(2) if that person uses a
measuring instrument for trade and that instrument is not verified. The
person's state of mind is not relevant to their guilt. For example, it does
not matter whether the person did not intend to breach subsection 18GA(2):
the person will be guilty if it can be proved they committed the prohibited
act.
The proposed strict liability offences created in the Bill are consistent
with the principles set out in A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers. In particular:
. none of the strict liability offences is punishable by imprisonment;
. the maximum penalty for committing one of the strict liability
offences is a fine of up to 40 penalty units for an individual; and
. as explained below in relation to relevant provisions, strict
liability has been imposed to enhance the effectiveness of particular
provisions of the Act, by deterring people from committing offences,
and to encourage people to be vigilant so as to ensure they do not
breach the Act.
Reports 17/2000 and 6/2002 by the Senate Standing Committee for the
Scrutiny of Bills were also considered in relation to the strict liability
provisions of the Bill.
Extended geographical jurisdiction
Where appropriate, some offences have been extended in geographical reach,
by applying extended geographical jurisdiction - category B (as provided
for in section 15.2 of the Criminal Code). In these cases, a person will
commit an offence if a requirement for standard geographical jurisdiction
is satisfied, or the conduct constituting the offence occurs outside
Australia and the person who commits it is an Australian citizen, resident
or body corporate at the time of the alleged offence, subject to any
applicable defences.
POWERS OF TRADE MEASUREMENT INSPECTORS
Proposed Part IX is concerned with trade measurement inspectors, who are
responsible for monitoring compliance with the Act. Part 3 of Part IX
confers powers on inspectors, for the purposes of the Act, to enter and
search business or residential premises, to inspect business vehicles, to
seize certain things, to require answers to certain questions, and to
require certain documents to be produced.
These powers are conferred on inspectors to enable them to effectively
monitor compliance and enforce the Act. The principles set out in Chapters
8 and 9 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers were carefully considered when creating these powers.
In particular, the following things were taken into account.
. There was extensive consultation with the Attorney-General's
Department and the Australian Federal Police regarding the proposed
provisions.
. It was decided that, given the large number of inspections involved,
it would not be practicable to require warrants for the exercise of
monitoring powers by inspectors in all cases.
. The powers replicate long-established equivalent powers in existing
state and territory corresponding laws. These powers are familiar to,
and accepted by, traders.
. If these powers were not available, it would not be possible to
effectively administer the Act. In particular, it would be difficult
to monitor compliance.
. The powers will only be exercisable by inspectors who are properly
selected, qualified and trained to do so.
. In the case of residential premises, inspectors may be refused entry.
NOTES ON CLAUSES
Clause 1 Short title
Clause 1 provides for the Act to be cited as the National Measurement
Amendment Act 2008.
Clause 2 Commencement
Clause 2 specifies that the Act commences on 1 July 2009. However the
Commonwealth trade measurement system will not come fully into effect until
1 July 2010 as specified in Schedule 2, Part 2.
Clause 3 Schedules
Clause 3 provides for the arrangements set out in the schedules to have
legal effect on passing of the Bill.
Schedule 1: - Trade Measurement
National Measurement Act 1960
Definitions Items 1 to 55
Item 1 Subsection 3(1) (definition of approved pattern)
This item inserts a new definition of approved pattern into the National
Measurement Act. This definition replicates the definition in the State and
Territory Trade Measurement Acts.
Items 2 to 5 refer to the average quantity system (AQS) of prepacked
articles
The AQS is an internationally agreed method of determining the quantity
contained in prepacked articles. It is used in large scale packaging plants
where articles are packed in the same quantity in large numbers such as
breakfast cereals and jams. This is being inserted as a voluntary
alternative for large scale packers in addition to the traditional method
of measuring packages currently in state and territory trade measurement
legislation.
Item 2 Subsection 3(1) (definition of AQS mark)
This item provides that the meaning of AQS mark is as given in section
18JJ. The presence of this mark on a packet indicates that the packer has
adopted the use of the AQS measurement method. The absence of this mark
indicates that the packer is using the national non-AQS measurement method.
Item 3 Subsection 3(1) (definition of AQS sampling procedures)
This item provides that AQS sampling procedures for the purposes of
Subdivision 3-C of Division 3 of Part VI of the Act are those prescribed in
regulations.
Item 4 Subsection 3(1) (definition of AQS test procedures)
This item provides that AQS testing procedures for the purposes of
Subdivision 3-C of Division 3 of Part VI of the Act are those prescribed in
regulations.
Item 5 Subsection 3(1) (definition of AQS threshold)
This item provides that the AQS threshold for the purposes of Subdivision 3-
C of Division 3 of Part VI of this Act is that prescribed in regulations.
The AQS threshold sets the minimum number of packages for which the AQS
provisions become available.
Item 6 Subsection 3(1) (definition of article)
This item proposes to replicate the provision in the state and territory
trade measurement acts by extending the meaning of article to include
substance.
Item 7 Subsection 3(1) (definition of Australian legal unit of
measurement)
This item is a minor technical amendment to correct a reference in the
definition of an Australian legal unit of measurement.
Item 8 Subsection 3(1) (definition of automated packing machine)
This item defines an automated packing machine as being a machine (most
likely on a production line) that follows a pre-determined program for
automatically measuring and packing articles to a single predetermined
quantity for each run of each commodity being packed. This class of
measuring instrument is subject to operator adjustment and is excluded by
proposed subsection 4B(2) from the application of the Act.
EXAMPLE: A machine measuring and packing 250 gram packs or tea. This
machine could be reset at a later time to measure and pack 100 gram packs
of tea. In the case of liquids, a machine could measure and fill 2 litre
bottles of soft drink and be reset at a later time to measure and fill 1
litre bottles of soft drink.
Item 9 Subsection 3(1) (definition of business premises)
This item defines the meaning of business premises. This is necessary in
order to specify the reach of monitoring and other powers that an inspector
may exercise under Part IX.
Item 10 Subsection 3(1) (definition of business vehicle)
This item defines what is meant by a 'business vehicle'. This is necessary
in order to specify the reach of monitoring and other powers that an
inspector may exercise under Part IX
Item 11 Subsection 3(1) (definition of controller)
This item identifies the person who has control over business premises or a
business vehicle.
Item 12 Subsection 3(1) (definition of earlier corresponding law)
This item defines earlier corresponding law to mean the current trade
measurement Acts and trade measurement administration Acts in the states
and territories.
Item 13 Subsection 3(1) (definition of evidential material)
This item defines the categories of material that may be found and used in
evidence to establish a breach of this Act.
Item 14 Subsection 3(1) (definition of inspector's mark)
This item defines the mark allotted to a trade measurement inspector by the
Secretary under subsection 18MA(5) to provide for the verification or
reverification of a measuring instrument in use of trade.
Item 15 Subsection 3(1) (definition of 'made available as a public
weighbridge')
This item refers to the definition in section 3A.
Item 16 Subsection 3(1) (definition of marked)
This item extends the meaning of 'marked' with respect to a prepacked
article to include when the mark is on an attached label or visible within
the package. An example of a mark on a pre-packed article is the marking of
a measurement statement, such as '1 kg' or an AQS mark.
Item 17 Subsection 3(1) (definition of marking a measuring instrument
with a verification mark)
This item refers to the definition in new subsection 3(5).
Item 18 Subsection 3(1) (definition of measurement)
This item replicates the definition of measurement in state and territory
earlier corresponding laws.
Item 19 Subsection 3(1) (definition of 'measuring instrument gives an
inaccurate measurement')
This item refers to the definition in new subsection 3(6).
Item 20 Subsection 3(1) (definition of metric system of measurement)
This item is a minor consequential amendment as a result of item 21.
Item 21 Subsection 3(1) (definition of metric system of measurement)
This item proposes to repeal paragraph (c) of the definition of metric
system of measurement as the Commonwealth has no authority over the
international metric system of measurement.
Item 22 Subsection 3(1) (definition of national group test procedures)
This item defines test procedures for non AQS prepacked articles as those
prescribed for the purposes of Subdivision 4-B of Division 4 of Part VI.
Item 23 Subsection 3(1) (definition of national instrument test
procedures)
This item defines the national test procedures for the verification of
measuring instruments in use for trade as those determined by the Minister
under 18GG(2).
Item 24 Subsection 3(1) (definition of national sampling procedures)
This item defines sampling procedures for non AQS prepacked articles as
those prescribed for the purposes of Subdivision 4-B of Division 4 of Part
VI.
Item 25 Subsection 3(1) (definition of national single article test
procedures)
This item defines test procedures for single non-AQS prepacked articles as
those prescribed for the purposes of Subdivision 4-B of Division 4 of Part
VI.
Item 26 Subsection 3(1) (definition of national test threshold)
This item defines the minimum number of packs to be tested to determine
whether there is shortfall for non AQS prepacked articles.
Item 27 Subsection 3(1) (definition of net measurement)
A definition of net measurement is included.
Item 28 Subsection 3(1) (definition of obliterate)
A definition of obliterate is included.
Item 29 Subsection 3(1) (definition of package)
This item replicates the definition of package in state and territory
earlier corresponding laws.
Item 30 Subsection 3(1) (definition of packed in advance ready for
sale)
This item defines packed in advance ready for sale by reference to section
18HA
Item 31 Subsection 3(1) (definition of premises)
This item extends the meaning of premises to include an area of land or any
other place, whether or not it is enclosed or built on. 'Any other place'
includes a marine vessel.
Item 32 Subsection 3(1) (definition of public weighbridge)
A definition of public weighbridge is included.
Item 33 Subsection 3(1) (definition of public weighbridge licence)
This item defines a public weighbridge licence as a license granted by the
Secretary under section 18PB that provides authorisation for a person to
operate a weighbridge as a public weighbridge.
Item 34 Subsection 3(1) (definition of public weighbridge licensee)
This item defines a public weighbridge licensee as a person granted a
licence by the Secretary under section 18PB to operate a weighbridge as a
public weighbridge.
Item 35 Subsection 3(1) (definition of residential premises)
This item defines the meaning of 'residential premises' so that the
monitoring and other powers that an inspector may exercise under Part IX,
with respect to residential premises, may be specified.
Item 36 Subsection 3(1) (definition of seize)
This item extends the meaning of seize to include secure against
interference.
Item 37 Subsection 3(1) (definition of sell)
This item extends the meaning of sell to include barter and exchange.
Item 38 Subsection 3(1) (definition of servicing licence)
This item defines a servicing licence as a license granted by the Secretary
under section 18NB that provides authorisation for a person to verify
measuring instruments for use for trade.
Item 39 Subsection 3(1) (definition of servicing licensee)
This defines a servicing licensee as a person granted a servicing licence
by the Secretary under section 18NB to verify measuring instruments in use
for trade.
Item 40 Subsection 3(1) (definition of servicing licensee's mark)
A definition of servicing licensee's mark is included.
Item 41 Subsection 3(1) (definition of shortfall)
This item refers the definition of shortfall for a non-AQS packed article
to section 18JR.
Item 42 Subsection 3(1) (definition of this Act)
The definition of this Act is included.
Item 43 Subsection 3(1) (definition of trade measurement inspector)
This item defines the meaning of 'trade measurement inspector'.
Item 44 Subsection 3(1) (definition of use for trade)
This item replaces the current definition of 'use for trade' to align with
that contained in earlier corresponding state and territory laws.
Item 45 Subsection 3(1) (definition of utility)
This item limits the meaning of utility to only electricity, water and gas.
Item 46 Subsection 3(1) (definition of utility meter)
This item is a consequential amendment as a result of the repeal of Part
VA.
Item 47 Subsection 3(1) (definition of utility meter verifier)
This item defines a 'utility meter verifier' as a person appointed as such
under section 18RA or 18RH.
Item 48 Subsection 3(1) (definition of utility meter verifier's mark)
This item defines the utility meter verifier's mark as the mark that is
allotted to an appointed utility verifier for use in the verification of
utility meters.
Item 49 Subsection 3(1) (definition of vehicle)
This item extends the meaning of vehicle to include vessels, aircraft and
other vehicles for conveying goods subject to provisions in this Act.
Item 50 Subsection 3(1) (definition of verification)
This item repeals the current definition and refers to section 18GG for the
new definition of verification.
Item 51 Subsection 3(1) (definition of verification mark)
This item defines the verification mark that is allotted to a utility meter
verifier, an inspector or a servicing licensee for the purpose of verifying
utility meters or other measuring instruments.
Item 52 Subsection 3(1) (definition of verifier)
This item defines a verifier as a person permitted to verify utility meters
under section 18GI or as a person permitted to verify other measuring
instruments under 18GH.
Item 53 Subsection 3(1) (definition of verifying authority)
The definition is repealed.
Item 54 Subsection 3(1) (definition of weighbridge)
A definition of weighbridge is included.
Item 55 At the end of section 3, add subsections (5), (6) and (7)
This item provides for the insertion of new subsection 3(5), which defines
the meaning of references to a person 'marking a measuring instrument with
a verification mark'.
The item also provides for a new subsection 3(6), which explains that
references in the Act to a 'measuring instrument gives an inaccurate
measurement' are to mean that the measuring instrument does not operate
within the appropriate limits of error that are permitted under the
regulations. This concept is used for the purposes of certain offence
provisions in the Act, such as proposed section 18G, which creates an
offence for the inaccurate use of a measuring instrument. It is important
for the proper administration of the Act that the regulations are able to
precisely define appropriate limits of error for particular measuring
instruments, and to do so flexibly to allow for changes in technology and
industry practices and standards. Par 4.2 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers was
considered when framing this provision.
The item also provides for a new subsection 3(7) which provides that a
reference to a particular provision or group of provisions in the Act
includes a reference to regulations made under that provision or any one or
more of the provisions of that group of provisions.
Technical amendments Items 56 to 64
Item 56 After section 3 insert 3A (meaning of made available as a
public weighbridge)
This item insert proposed section 3A, which explains when a weighbridge is
'made available as a public weighbridge,' when a weighbridge is 'not made
available as a public weighbridge', and provides that the regulations may
prescribe other circumstances in which a weighbridge is taken not to be
'made available as a public weighbridge' for the purposes of the Act.
Item 57 Repeal and replace paragraph 4(1)(e)
This item repeals paragraph 4(1)(e) and replaces it with a new object that
reflects the amendments: that the Act is to provide for a national system
of trade measurement.
Item 58 Repeal section 4(3)
This item repeals subsection 4(3), which confirmed the application of State
and Territory laws regarding trade measurement. As the Act now provides for
a national system of trade measurement, this subsection has been repealed.
Item 59 After section 4A insert 4B (application of trade measurement
provisions)
This item lists the types of measurements, or instruments used for the
purpose of a measurement, to which Parts IV to XIII of the Act do not
apply.
Item 60 Subsection 7B(1)
This item is a consequential amendment of subsection 7B(1) as a result of
item 62.
Item 61 Subsection 7B(1)
This item amends subsection 7B(1) to require that guidelines issued under
the subsection must be in the form of a legislative instrument.
Item 62 Subsection 7B(2)
This subsection is repealed as a consequence of item 61.
Item 63 Subsection 8A(1)
This item amends subsection 8A (1) to require that determinations under the
subsection are made by legislative instrument.
Item 64 Subsection 8A(3)
As a consequence of item 63, subsection 8A(3) is repealed.
Item 65 Part VA
This item repeals Part VA of the Act and substitutes new Parts IV to XIV.
Part IV - Using measuring instruments for trade
Division 1 - Overview of Part
Section 18G Overview
This section highlights the key elements of the proposed Part IV of the
Act.
Division 2 - Requirements for use of measuring instruments for trade
In proposed Part IV, measuring instruments must be verified, and used in a
way that gives an accurate measurement. Proposed Division 2 of Part IV
creates offences to deal with these matters. Some of these proposed
criminal offence provisions are strict liability offences and others are
offences requiring a fault element. For an explanation of these concepts,
see the General Note on Offence Provisions in this Bill, on page 5 of this
Explanatory Memorandum.
Section 18GA Measuring instruments used for trade to be verified
Proposed subsection 18GA(1) provides for an offence of using unverified
measuring instruments for trade. This offence requires a fault element to
be proven with respect to its physical elements (which must also be
proven). Under subsection 18GA(1), a person commits an offence if:
. the person uses a measuring instrument for trade; and
. the measuring instrument is not verified.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from using measuring
instruments that are not verified.
Proposed subsection 18GA(2) provides that a person commits an offence of
using unverified measuring instruments for trade if:
. the person uses a measuring instrument for trade; and
. the measuring instrument is not verified.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18GA(3) provides that the offence in proposed
subsection 18GA(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under proposed subsection 18GA(3) attract a lower penalty than the
corresponding offence requiring a fault element. The provision is designed
to encourage people to be vigilant in ensuring that measuring instruments
used in trade are verified and to deter people from breaching this
requirement.
Proposed subsection 18GA(4) is an evidentiary provision. Under proposed
subsection 18GA(4), if:
. a measuring instrument is on premises, or on a part of
premises or a vehicle; and
. the consideration in respect of a transaction or the amount
of a tax is determined on those premises, or that part of
those premises;
it is presumed for the purposes of proposed section 18GA that the
measuring instrument has been used for trade on the premises or that part
of the premises. This presumption may be rebutted by establishing the
contrary.
Proposed subsection 18GA(5) is an evidentiary provision that applies to
measuring instruments in or on a vehicle in essentially the same way as
subsection 18GA(4) applies to measuring instruments on premises.
The reasons for the presumptions imposed by subsections 18GA(4) and (5)
are: that in the practical circumstances the provisions are likely to apply
to, it is reasonable to assume that the measuring instrument has been used
for trade in the relevant place; it might otherwise be difficult to prove
this for the purposes of a prosecution; and whether the instrument has, in
fact, been used in this way is a matter that is likely to be peculiarly in
the knowledge of a defendant. These provisions are designed to be
consistent with par 4.6 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Section 18GB Installing unverified measuring instruments
Proposed subsection 18GB(1) provides for an offence of installing
unverified measuring instruments, which requires proof of a fault element
with respect to its physical elements (which must also be proven). Under
proposed subsection 18GB(1), a person commits an offence if:
. the person installs in or on any premises or vehicle a
measuring instrument; and
. the measuring instrument is installed for use for trade; and
. the measuring instrument is not verified.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from installing a
measuring instrument for use in trade that is not verified.
Proposed subsection 18GB(2) provides that a person commits an offence of
installing unverified measuring instruments for trade if:
. the person installs in or on any premises or vehicle a
measuring instrument; and
. the measuring instrument is installed for use for trade; and
. the measuring instrument is not verified.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GB(3) provides that the offence in proposed
subsection 18GB(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under proposed subsection 18GB(2) attract a lower penalty than the
corresponding offence requiring a fault element. The provision is designed
to encourage people to be vigilant in ensuring that measuring instruments
they install for use in trade are verified and to deter people from
breaching this requirement.
Section 18GC Supplying unverified measuring instruments
Proposed subsection 18GC(1) provides for an offence of selling or otherwise
supplying unverified measuring instruments, which requires proof of a fault
element with respect to its physical elements (which must also be proven).
Under proposed subsection 18GC(1), a person commits an offence if:
. the person sells or otherwise supplies a measuring
instrument; and
. the measuring instrument is sold or otherwise supplied for
use for trade; and
. the measuring instrument is not verified.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from selling or
otherwise supplying a measuring instrument for use in trade that is not
verified.
Proposed subsection 18GC(2) provides that a person commits an offence if:
. the person sells or otherwise supplies a measuring
instrument; and
. the measuring instrument is sold or otherwise supplied for
use for trade; and
. the measuring instrument is not verified.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GC(3) provides that the offence in proposed
subsection 18GC(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under proposed subsection 18GC(2) attract a lower penalty than the
corresponding offence requiring a fault element. The provision is designed
to encourage people to be vigilant in ensuring that measuring instruments
they sell or otherwise supply for use in trade are verified, and to deter
people from breaching this requirement.
Section 18GD Inaccurate use of measuring instruments
Proposed subsection 18GD(1) provides for an offence of inaccurate use of
measuring instruments, which requires proof of a fault element with respect
to its physical elements (which must also be proven). Under proposed
subsection 18GD(1), a person commits an offence if the person:
. uses a measuring instrument for trade; and
. does so in such a way, or under such circumstances, that the
measuring instrument gives an inaccurate measurement or gives
other information (including a statement as to price)
inaccurately.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from inaccurate use of
a measuring instrument in trade. While a measuring instrument may be
accurate, it could be used in a way that causes it to give an inaccurate
measurement.
EXAMPLE: A scale may not be zeroed by the operator before use, or an
object next to the scale may be allowed to touch the weighing platform
causing it to be off zero, or the scale may be positioned under a fan.
Proposed subsection 18GD(2) provides that a person commits an offence of
inaccurate use of measuring instruments if the person:
. uses a measuring instrument for trade; and
. does so in such a way, or under such circumstances, that the
measuring instrument gives an inaccurate measurement or gives
other information (including a statement as to price)
inaccurately.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GD(3) provides for an offence of inaccurate use of
measuring instruments by act or omission, which requires proof of a fault
element with respect to its physical elements (which must also be proven).
Under proposed subsection 18GD(3), a person commits an offence if:
. the person does, or fails to do, something in relation to a
measuring instrument; and
. the person's act or omission causes, or is likely to cause,
the measuring instrument to give an inaccurate measurement or
to give other information (including a statement as to price)
inaccurately when used for trade.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from doing, or failing
to do, the relevant things in relation to the accurate use of a measuring
instrument used in trade.
Proposed subsection 18GD(4) provides that a person commits an offence of
inaccurate use of measuring instruments by act or omission for trade if:
. the person does, or fails to do, something in relation to a
measuring instrument; and
. the person's act or omission causes, or is likely to cause,
the measuring instrument to give an inaccurate measurement or
to give other information (including a statement as to price)
inaccurately when used for trade.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GD(5) provides that the offences in proposed
subsection 18GD(2) and 18GD(4) are offences of strict liability. The
subsection contains a note referring to section 6.1 of the Criminal Code,
which explains the concept of strict liability.
Offences under subsections 18GD(2) and 18GD(4) attract lower penalties than
the corresponding offences requiring a fault element. These provisions are
designed to encourage people to be vigilant in ensuring that they do not
do, or fail to do, the relevant things in relation to a measuring
instrument used in trade, and to deter people from breaching these
requirements.
Section 18GE Using or supplying inaccurate measuring instruments
Proposed subsection 18GE(1) provides for an offence of using inaccurate
measuring instruments, which requires proof of a fault element with respect
to its physical elements (which must also be proven). Under proposed
subsection 18GE(1), a person commits an offence if:
. the person uses a measuring instrument for trade; and
. the measuring instrument gives an inaccurate measurement or
gives other information (including a statement as to price)
inaccurately.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from using inaccurate
measuring instruments for trade.
Proposed subsection 18GE(2) provides that a person commits an offence of
inaccurately using a measuring instrument if:
. the person uses a measuring instrument for trade; and
. the measuring instrument gives an inaccurate measurement or
gives other information (including a statement as to price)
inaccurately.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GE(3) is an evidentiary provision. Under proposed
subsection 18GE(3), if:
. a measuring instrument is on premises, or on a part of
premises; and
. the consideration in respect of a transaction or the amount
of a tax is determined on those premises, or that part of
those premises;
it is presumed for the purposes of subsections 18GE(1) and(2) that
the measuring instrument has been used for trade on the premises or that
part of the premises. This presumption may be rebutted by establishing
the contrary.
Proposed subsection 18GE(4) is an evidentiary provision that applies to
measuring instruments in or on a vehicle in essentially the same way as
subsection 18GE(3) applies to measuring instruments on premises.
The reasons for the presumptions imposed by subsections 18GE(3) and (4)
are: that in the practical circumstances the provisions are likely to apply
to, it is reasonable to assume that the measuring instrument has been used
for trade in the relevant place; it might otherwise be difficult to prove
this for the purposes of a prosecution; and whether the instrument has, in
fact, been used in this way is a matter that is likely to be peculiarly in
the knowledge of a defendant. These provisions are designed to be
consistent with par 4.6 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Proposed subsection 18GE(5) provides for an offence of supplying inaccurate
measuring instruments, which requires proof of a fault element with respect
to its physical elements (which must also be proven). Under proposed
subsection 18GE(4), a person commits an offence if:
. the person sells or otherwise supplies a measuring instrument
for use for trade; and
. the measuring instrument gives an inaccurate measurement or
gives other information (including a statement as to price)
inaccurately.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from selling or
otherwise supplying inaccurate measuring instruments for use in trade.
Proposed subsection 18GE(6) provides that a person commits an offence of
supplying inaccurate measuring instruments if:
. the person sells or otherwise supplies a measuring instrument
for use for trade; and
. the measuring instrument gives an inaccurate measurement or
gives other information (including a statement as to price)
inaccurately.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GE(7) provides that the offences in proposed
subsections 18GE(2) and 18GE(6) are offences of strict liability. The
subsection contains a note referring to section 6.1 of the Criminal Code,
which explains the concept of strict liability.
Offences under subsections 18GE(2) and 18GE(6) attract lower penalties than
the corresponding offences requiring a fault element. The provisions are
respectively designed to encourage people to be vigilant in ensuring that
they do not use inaccurate measuring instruments for trade, and do not sell
or otherwise supply inaccurate measuring instruments for use in trade, and
to deter people from doing these things.
Division 3-Verification of measuring instruments
Section 18GF Overview
This section highlights the key elements of proposed Division 3 of Part IV
of the Act.
Section 18GG Meaning of verification
Proposed section 18GG defines when a measuring instrument is 'verified'.
Put simply, verification is a process of ensuring that measuring
instruments operate accurately and are of an approved pattern.
Proposed paragraphs 18GG(1) (a) and (b) specify when a measuring instrument
is verified.
Proposed subsection 18GG(2) provides that the Minister may, by legislative
instrument, determine the national test procedures, by which instruments
may be verified. Legislative instruments are made pursuant to the
procedures set out in the Legislative Instruments Act 2003.
Proposed subsection 18GG(3) provides that a re-verification period must not
be prescribed for utility meters.
Proposed subsection 18GG(4) provides that regulations may be made providing
for certain things in relation to verification: prescribing the
circumstances in which a measuring instrument tested under national
instrument test procedures may be marked with a verification mark by
someone other than the verifier; to provide for labour, facilities and
equipment for the batch testing of instruments; and prescribe circumstances
in which a measuring instrument is taken to be marked with a verification
mark. It is important for the proper operation of the Act that these
matters are precisely and comprehensively specified in the regulations, and
that the regulations may be amended to reflect changes in test procedures
and industry practice.
Section 18GH Who is permitted to verify measuring instruments other than
utility meters?
Trade measurement inspectors, servicing licensees and employees of
servicing licensees are permitted to verify measuring instruments (other
than utility meters).
Proposed paragraphs 18GH(1)(a)-(c) provide that subject to the limitations
in section 18GH, each of the following persons is permitted to verify a
measuring instrument other than a utility meter:
. a trade measurement inspector;
. a servicing licensee;
. an employee of a servicing licensee.
Proposed subsection 18GH(1) contains two notes, which are cross references
to other relevant parts of the Act. Note 1 indicates that trade measurement
inspectors are appointed under proposed Part IX. Note 2 indicates that
servicing licensees are granted servicing licences under Part X of the
National Measurement Act.
Proposed subsection 18GH(2) provides that a trade measurement inspector of
a particular class may verify any measuring instrument that an inspector of
that class is authorised to verify.
Proposed paragraphs 18GH(3)(a)-(b) provide that a servicing licensee may
personally verify a measuring instrument if:
. the measuring instrument is of a class of measuring
instruments that the licensee is licensed to verify; and
. the licensee is competent to verify the measuring instrument.
Proposed paragraphs 18GH(4)(a)-(b) provide that an employee of a servicing
licensee may verify a measuring instrument if:
. the measuring instrument is of a class of measuring
instruments that the licensee is licensed to verify; and
. the employee is competent to verify the measuring instrument.
Section 18GI Who is permitted to verify utility meters?
Proposed section 18GI provides that utility meter verifiers are permitted
to verify utility meters. A note to the section indicates that utility
meter verifiers are appointed under Part XIII of the National Measurement
Act.
Section 18GJ Register of verification marks
Proposed section 18GJ provides that the Secretary must keep a register of
prescribed particulars relating to verification marks.
Section 18GK Requirements for verification
Proposed section 18GK provides that certain requirements must be met before
a measuring instrument may be verified. The requirements for verification
of a measuring instrument are:
. the measuring instrument must operate within the appropriate
limits of error that are permitted under the regulations; and
. the measuring instrument must be of an approved pattern.
Section 18GL Standards of measurements to be used for verification
Proposed subsection 18GL(1) provides that the determination of whether the
requirements for verification under proposed section 18GK have been
complied with must be made as required by section 10 of the National
Measurement Act.
Proposed subsection 18GL(2) provides that proposed subsection 18GL(1) does
not apply if there is not an appropriate standard of measurement in respect
of which the measuring instrument is to be verified.
Offence provisions in Division 3
Division 3 contains offences for persons who:
. use a verification mark when not permitted to do so (see
proposed section 18GM); and
. sell or supply measuring instruments that have been marked
with a verification mark by a person not permitted to do so
(see proposed section 18GN); and
. mark measuring instruments in a misleading way (see proposed
section 18GO); and
. possess false verification marks (see proposed section 18GP);
and
. fail to obliterate verification marks if a measuring
instrument's metrological performance is affected by repairs
(see proposed section 18GQ)
The details of these offences are set out below.
Section 18GM Using a verification mark when not permitted to do so
Proposed subsection 18GM(1) provides for an offence of using a verification
mark when not permitted to do so. This offence requires a fault element to
be proven with respect to its physical elements (which must also be
proven). Under subsection 18GM(1), a person commits an offence if:
. the person marks a measuring instrument with a verification
mark; and
. the person is not permitted to do so.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from using a
verification mark when not permitted to do so.
Proposed subsection 18GM(2) provides that a person commits an offence of
using a verification mark when not permitted to do so if:
. the person marks a measuring instrument with a verification
mark; and
. the person is not permitted to do so.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GM(3) provides that the offence in proposed
subsection 18GM(2) is an offence of strict liability. The subsection
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18GM(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. The provision is designed
to encourage people to be vigilant in ensuring that they do not use a
verification mark when they are not permitted to do so and to deter people
from breaching this prohibition.
Section 18GN Sale or supply of measuring instrument marked by someone not
permitted to do so
Proposed subsection 18GN(1) provides for an offence of sale or supply of a
measuring instrument marked by someone not permitted to do so. This offence
requires a fault element to be proven with respect to its physical elements
(which must also be proven). Under subsection 18GN(1), a person commits an
offence if:
. the person sells or otherwise supplies a measuring instrument
for use for trade, or uses a measuring instrument for trade;
and
. the measuring instrument is marked with a verification mark;
and
. the person who marked the measuring instrument with the
verification mark was not permitted to do so.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from selling or
otherwise supplying an instrument bearing a verification mark made by a
person not permitted to do so.
Proposed subsection 18GN(2) provides that a person commits an offence of
sale or supply of a measuring instrument marked by someone not permitted to
do so if:
. the person sells or otherwise supplies a measuring instrument
for use for trade, or uses a measuring instrument for trade;
and
. the measuring instrument is marked with a verification mark;
and
. the person who marked the measuring instrument with the
verification mark was not permitted to do so.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GN(3) provides that the offence in proposed
subsection 18GN(2) is an offence of strict liability. The subsection
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18GN(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. The provision is designed
to encourage people to be vigilant in ensuring that they do not sell or
otherwise supply a measuring machine bearing a verification mark made by a
person not permitted to do so, and to deter people from breaching this
prohibition.
Section 18GO Misleading marks
Proposed subsection 18GO(1) provides for an offence of marking a measuring
instrument with a misleading mark. This offence requires a fault element to
be proven with respect to its physical elements (which must also be
proven). Under subsection 18GO(1), a person commits an offence if:
. the person marks a measuring instrument; and
. the mark is not a verification mark but is likely to give the
impression that it is a verification mark.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from making a
misleading mark on a measuring instrument.
Proposed subsection 18GO(2) provides that a person commits an offence of
marking a measuring instrument with a misleading mark if:
. the person marks a measuring instrument; and
. the mark is not a verification mark but is likely to give the
impression that it is a verification mark.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GO(3) provides for an offence of using, selling or
supplying a measuring instrument misleadingly marked. This offence requires
a fault element to be proven with respect to its physical elements (which
must also be proven). Under subsection 18GO(3), a person commits an offence
if:
. the person
- uses a measuring instrument for trade; or
- sells or otherwise supplies a measuring instrument for use for
trade; and
. the measuring instrument is marked; and
. the mark is not a verification mark but is likely to give the
impression that it is a verification mark.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from using, selling or
otherwise supplying a measuring instrument that bears a misleading mark.
Proposed subsection 18GO(4) provides that a person commits an offence of
using, selling or supplying a measuring instrument misleadingly marked if:
. the person
- uses a measuring instrument for trade; or
- sells or otherwise supplies a measuring instrument for use for
trade; and
. the measuring instrument is marked; and
. the mark is not a verification mark but is likely to give the
impression that it is a verification mark.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GO(5) provides for an offence of possessing an
instrument for making a misleading mark. This offence requires a fault
element to be proven with respect to its physical elements (which must also
be proven). Under subsection 18GO(5), a person commits an offence if:
. the person has an instrument or other thing in his or her
possession; and
. the instrument or thing is designed for making a mark on a
measuring instrument that is not a verification mark but is
likely to give the impression that it is a verification mark.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from possessing an
instrument or thing designed to make a misleading mark on a measuring
instrument.
Proposed subsection 18GO(6) provides that a person commits an offence of
possessing an instrument for making a misleading mark if:
. the person has an instrument or other thing in his or her
possession; and
. the instrument or thing is designed for making a mark on a
measuring instrument that is not a verification mark but is
likely to give the impression that it is a verification mark.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GO(7) provides that the offence in proposed
subsections 18GO(2), (4) and (6) are offences of strict liability. The
subsection contains a note referring to section 6.1 of the Criminal Code,
which explains the concept of strict liability.
Offences under subsections 18GO(2), (4) and (6) will attract a lesser
penalty than the corresponding offences requiring a fault element. These
provision are designed to encourage people to be vigilant in ensuring that
they do not engage in the relevant prohibited behaviour and to deter people
from engaging in that behaviour.
Section 18GP Wrongful possession of an instrument for making a verification
mark
Proposed subsection 18GP(1) provides for an offence of wrongful possession
of an instrument for making a verification mark. This offence requires a
fault element to be proven with respect to its physical elements (which
must also be proven). Under subsection 18GP(1), a person commits an offence
if:
. the person has an instrument or other thing in his or her
possession; and
. the instrument or thing is designed for marking a measuring
instrument with a verification mark; and
. the person is not permitted to mark a measuring instrument
with that verification mark.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Section 18GQ Obligation on repair of measuring instrument
Proposed subsection 18GQ(1) provides for an offence for persons who fail to
obliterate verification marks if a measuring instrument's metrological
performance is affected by repairs. This offence requires a fault element
to be proven with respect to its physical elements (which must also be
proven). Under subsection 18GQ(1), a person commits an offence if:
. the person uses a measuring instrument for trade; and
. the person adjusts or repairs the measuring instrument, or
causes the measuring instrument to be adjusted or repaired;
and
. in adjusting or repairing the measuring instrument, the
metrological performance of the measuring instrument is
affected; and
. if the person causes the measuring instrument to be adjusted
or repaired-the adjustment or repair of the measuring
instrument is not performed by a servicing licensee or
employee of a servicing licensee or, in the case of a utility
meter, by a utility meter verifier; and
. the person does not obliterate, or cause to be obliterated,
any verification mark that the measuring instrument bears.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18GQ(2) provides for an offence for persons who fail to
obliterate verification marks if a measuring instrument's metrological
performance is affected by repairs. Under subsection 18GQ(2), a person
commits an offence if:
. the person uses a measuring instrument for trade; and
. the person adjusts or repairs the measuring instrument, or
causes the measuring instrument to be adjusted or repaired;
and
. in adjusting or repairing the measuring instrument, the
metrological performance of the measuring instrument is
affected; and
. if the person causes the measuring instrument to be adjusted
or repaired-the adjustment or repair of the measuring
instrument is not performed by a servicing licensee or
employee of a servicing licensee or, in the case of a utility
meter, by a utility meter verifier; and
. the person does not obliterate, or cause to be obliterated,
any verification mark that the measuring instrument bears.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18GQ(3) provides that the offence in proposed
subsection 18GQ(2) is an offence of strict liability. The subsection
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18GQ(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the relevant prohibited behaviour and to deter people from engaging in that
behaviour.
Proposed subsection GQ(4) provides for a specific defence in relation to
the offences in proposed subsections 18GQ(1) and (2). Under proposed
subsection GQ(4), subsections 18GQ(1) and 18GQ(2) do not apply if the
effect on the measuring instrument can be corrected by normal operational
adjustment of the measuring instrument. The note to proposed subsection
18GQ(4) explains that a defendant bears an evidential burden in relation to
this defence, and refers to subsection 13.3(3) of the Criminal Code, which
explains the concept of an 'evidential burden'. This provision is designed
to be consistent with par 4.6 of A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers. In particular, if a defendant
wishes to avail himself or herself of this defence, it is likely to be a
matter peculiarly within his or her knowledge that his or her measuring
instrument can be corrected by normal operational adjustment.
Because of the long-standing nature of state and territory trade
measurement systems, traders are well aware of their responsibility not to
use unmarked instruments and to ensure that an instrument used for trade is
verified and marked following any repair or adjustment that affects its
metrological performance.
Part V-General provisions on using measurement in trade
Section 18H Overview
This section highlights the key elements of new Part V of the Act.
Section 18HA When is an article packed in advance ready for sale?
Proposed section 18HA sets out the circumstances when an article is packed
in advance ready for sale. Under this section, an article is packed in
advance ready for sale once the article is packed in the package in which
it will be sold, regardless of whether the package is marked with a
measurement or a representation (including a statement as to price) by
which the measurement of the article can be worked out.
Section 18HB Certain articles must be sold by measurement-articles packed
in advance ready for sale
Proposed subsection 18HB(1) provides for an offence in relation to a seller
of articles that must be sold by measurement. This offence requires a fault
element to be proven with respect to its physical elements (which must also
be proven). Under subsection 18HB(1), a person commits an offence if:
. the person sells an article that is packed in advance ready
for sale; and
. the packed article is of a class that, by regulation, must be
sold by measurement; and
. either:
- the package in which the article is sold is marked with a price
that is not determined by measurement; or
- there is a marking on or near the receptacle in which the
packed article is contained that is marked with a price
that is not determined by measurement.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18HB(2) provides for an offence in relation to a seller
of articles that must be sold by measurement. Under subsection 18HB(2), a
person commits an offence if:
. the person sells an article that is packed in advance ready
for sale; and
. the packed article is of a class that, by regulation, must be
sold by measurement; and
. either:
- the package in which the article is sold is marked with a price
that is not determined by measurement; or
- there is a marking on or near the receptacle in which the
packed article is contained that is marked with a price
that is not determined by measurement.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18HB(3) provides for an offence in relation to
possession, offer or exposure for sale of articles that must be sold by
measurement. This offence requires a fault element to be proven with
respect to its physical elements (which must also be proven). Under
subsection 18HB(3), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article has been packed in advance ready for sale; and
. the article is of a class that, by regulation, must be sold
by measurement; and
. either:
- the package in which the article is sold is marked with a price
that is not determined by measurement; or
- there is a marking on or near the receptacle in which the
packed article is contained that is marked with a price
that is not determined by measurement.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18HB(4) provides for an offence in relation to
possession, offer or exposure for sale of articles that must be sold by
measurement. Under subsection 18HB(4), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article has been packed in advance ready for sale; and
. the article is of a class that, by regulation, must be sold
by measurement; and
. either:
- the package in which the article is sold is marked with a price
that is not determined by measurement; or
- there is a marking on or near the receptacle in which the
packed article is contained that is marked with a price
that is not determined by measurement.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18HB(5) provides that the offences in proposed
subsection 18HB(2) and (4) are offences of strict liability. The subsection
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsections 18HB(2) and (4) will attract a lesser penalty
than the corresponding offences requiring a fault element. These provision
are designed to encourage people to be vigilant in ensuring that they do
not engage in the relevant prohibited behaviour and to deter people from
engaging in that behaviour.
Proposed subsection 18HB(6) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18HB(1), (2), (3) and (4). This is
because these offences could be committed outside Australia in
circumstances where it may be appropriate and practicable to take action
against the person who committed the offence. Proposed subsection 18HB(6)
is designed to be consistent with the principles discussed in par 4.8 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers.
Section 18HC Certain articles must be sold by measurement-other articles
Proposed subsection 18HC(1) contains an offence provision that also relates
to articles that must be sold by measurement. This offence requires a fault
element to be proven with respect to its physical elements (which must also
be proven). Under subsection 18HC(1), a person commits an offence if:
. the person sells an article that is not packed in advance
ready for sale; and
. the article is of a class that, by regulation, must be sold
by measurement; and
. the price of the article is not determined by measurement.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18HC(2) contains an offence provision that also relates
to articles that must be sold by measurement. Under subsection 18HC(2), a
person commits an offence if:
. the person sells an article that is not packed in advance
ready for sale; and
. the article is of a class that, by regulation, must be sold
by measurement; and
. the price of the article is not determined by measurement.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18HC(3) provides that the offence in proposed
subsection 18HC(2) is an offence of strict liability. The subsection
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18HC(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the relevant prohibited behaviour and to deter people from engaging in that
behaviour.
Section 18HD Transactions based on measurement to be in prescribed units of
measurement
Proposed subsection 18HD(1) contains an offence provision that relates to
the units of measurement that must be used for certain transactions. Under
subsection 18HD(1), a person commits an offence if:
. the person sells an article (whether packed in advance ready
for sale or otherwise) or a utility for a price determined by
reference to measurement of the article; and
. a unit of measurement is prescribed by the regulations for
that article or utility, or articles or utilities of that
class, for the purposes of this paragraph 18HD(1)(b); and
. the price is not a price determined by reference to a
measurement of the article or utility in that unit of
measurement.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
It is important for the proper operation of the Act that the regulations
may prescribe a unit of measure for a particular article or utility, or
class of articles or utilities, so that these units may be prescribed
comprehensively and precisely, and so that they may be relatively readily
amended to reflect changes in industry practice and the creation of new
types of articles.
Proposed subsection 18HD(2) provides that the offence in proposed
subsection 18HD(1) is an offence of strict liability. The subsection
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
The penalty imposed by subsection 18HD(1) is designed to encourage people
to be vigilant in ensuring that they comply with the subsection's
requirements and to deter them from engaging in the prohibited behaviour.
Proposed subsection 18HD(3) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsection 18HD(1). This is because these
offences could be committed outside Australia in circumstances where it may
be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18HD(3) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18HE Measuring instruments used in transactions to have prescribed
scale intervals
Proposed subsection 18HE(1) contains an offence provision that relates to
the scale intervals of measuring instruments used for certain articles.
Under subsection 18HD(1), a person commits an offence if:
. the person sells an article (whether packed in advance ready
for sale or otherwise) or a utility for a price determined by
reference to measurement of the article; and
. the regulations prescribed scale intervals for measuring
instruments used in the measurement of the article or
utility, or articles or utilities of that class; and
. the price is not a price determined by reference to a
measurement of the article or utility using a measuring
instrument of those scale intervals.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18HE(2) provides that the offence in proposed
subsection 18HE(1) is an offence of strict liability. The subsection
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
The penalty imposed by subsection 18HE(1) is designed to encourage people
to be vigilant in ensuring that they comply with the subsection's
requirements and to deter them from engaging in the prohibited behaviour.
Proposed subsection 18HE(3) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18H(1), (2), (3) and (4). This is
because these offences could be committed outside Australia in
circumstances where it may be appropriate and practicable to take action
against the person who committed the offence. Proposed subsection 18HE(3)
is designed to be consistent with the principles discussed in par 4.8 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers.
Section 18HF Unreliable methods of measurement
Proposed section 18HF deals with unreliable methods of measurement.
Subsection (1) of this proposed provision provides that the regulations
enabled by the National Measurement Act 1960 may prescribe unreliable
methods of measurement of an article or utility or a class of articles or
utilities.
Proposed subsection 18HF(2) provides that if the regulations make provision
under proposed subsection 18HF(1):
. the unreliable method of measurement must not be used in
working out the amount of any tax (however described) payable
by reference to measurement of the article or utility or an
article or utility of that class; and
. no contract, dealing or other transaction is to be made or
entered into that requires the unreliable method of
measurement to be used in measuring the article or utility or
an article or utility of that class for the purpose of
determining the consideration under that contract, dealing or
transaction; and
. to the extent that a contract is entered into requiring the
unreliable method to be used for that purpose, the contract
is null and void.
It is important that regulations may be made prescribing precisely
unreliable methods of measurement so that this information is readily
available and can be relatively readily amended to accommodate changing
business practices and practical circumstances.
EXAMPLE: When firewood is sold by volume, and is not stacked with as few
gaps as practicable, a measurement method based on the size of the stack
would be unreliable. Also, weighing a vehicle on a weighbridge using the
'end and end' method is not as reliable a method of measurement as direct
weighing of the vehicle.
Section 18HG Limiting use of certain measuring instruments
Proposed subsection 18HG(1) contains an offence provision that relates to
the use of certain measuring instruments. This offence requires a fault
element to be proven with respect to its physical elements (which must also
be proven). Under subsection 18HG(1), a person commits an offence if:
. a measuring instrument is of a class that, by regulation,
must only be used for prescribed purposes; and
. the person uses the measuring instrument for trade for
another purpose.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
It is important for the proper operation of section 18HG that the
regulations may prescribe purposes for which only certain classes of
measuring instruments may be used. This is so that the circumstances in
which certain measuring instruments may be used for certain purposes in the
course of trade can be comprehensively and precisely prescribed, and that
these prescribed purposes may be relatively readily amended to reflect
changes in technology and business practices. Par 4.2 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers was
considered when framing this provision.
Proposed subsection 18HG(1) is designed to strongly deter people from
engaging in the prohibited behaviour.
Proposed subsection 18HG(2) contains an offence provision that also relates
to the use of certain measuring instruments. Under subsection 18HG(2), a
person commits an offence if:
. a measuring instrument is of a class that, by regulation,
must only be used for prescribed purposes; and
. the person uses the measuring instrument for trade for
another purpose.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18HG(3) provides that the offence in proposed
subsection 18HG(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18HG(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour and to deter people from engaging in that
behaviour.
Section 18HH Measuring instruments and methods of measurement used in
monitoring compliance with the Act
Proposed section 18HH deals with measuring instruments and methods of
measurement used in monitoring compliance with the National Measurement
Act. Subsection (1) of this proposed provision provides that the
regulations enabled by the National Measurement Act may prescribe:
. measuring instruments, or classes of measuring instruments,
to be used by trade measurement inspectors in the measurement
of an article and utility or a class of articles or utilities
for the purpose of monitoring compliance with this Act; and
. the methods of measurement of an article or utility or an
article or utilities of a class, to be used by trade
measurement inspectors in monitoring compliance with this
Act.
It is important regulations may be made for these purposes, so that there
is a clear public document setting out these important matters, and that
the regulations prescribing these matters may be relatively readily amended
to accommodate changes in technology and business practices. This will help
ensure that inspectors discharge their duties in accordance with the best
of current standards and practices.
Proposed section 18HH(2) provides for presumptions that must be made by all
courts, judges and persons acting judicially:
. a measuring instrument or a class of measuring instrument
prescribed for an article or utility in relation to which it
is prescribed, will, if used correctly, produce an accurate
measurement of the article or utility; and
. the use of the method of measurement prescribed for an
article or utility, in relation to which the method is
prescribed will produce an accurate measurement.
This provision is designed to facilitate administration of the Act, by
avoid unnecessary collateral proceedings in relation to the Act. For
example, this provision would avoid the need to establish in a number of
different proceedings that a measuring instrument will, if used properly,
will give an accurate result.
Section 18HI Articles sold by measurement to be sold by net measurement
Proposed subsection 18HI(1) contains an offence provision relating to
sellers and trade measurement being a net measurement. This offence
requires a fault element to be proven with respect to its physical elements
(which must also be proven). Under subsection 18HI(1), a person commits an
offence if:
. the person sells an article (whether packed in advance ready
for sale or otherwise) for a price determined by reference to
measurement of the article; and
. the price is not determined by reference to the net
measurement of the article when sold or, if an alternative
time is prescribed in relation to the article, or articles of
that class, at that alternative time.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18HI(2) contains an offence provision relating to
sellers and trade measurement being a net measurement. Under subsection
18HI(2), a person commits an offence if:
. the person sells an article (whether packed in advance ready
for sale or otherwise) for a price determined by reference to
measurement of the article; and
. the price is not determined by reference to the net
measurement of the article when sold or, if an alternative
time is prescribed in relation to the article, or articles of
that class, at that alternative time.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18HI(3) contains an offence provision relating to
possession, offer or exposure for sale and trade measurement being a net
measurement. This offence requires a fault element to be proven with
respect to its physical elements (which must also be proven). Under
subsection 18HI(3), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale, at a particular time (whether packed in
advance ready for sale or otherwise) for a price determined
by reference to measurement of the article; and
. the price is not determined by reference to the net
measurement of the article at that time, or if an alternative
time is prescribed in relation to the article, or articles of
that class, at an alternative time.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18HI(4) contains an offence provision relating to
possession, offer or exposure for sale and trade measurement being a net
measurement. Under subsection 18HI(4), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale, at a particular time (whether packed in
advance ready for sale or otherwise) for a price determined
by reference to measurement of the article; and
. the price is not determined by reference to the net
measurement of the article at that time or, if an alternative
time is prescribed in relation to the article, or articles of
that class, at that alternative time.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18HI(5) provides that the offences in proposed
subsections 18HI(2) and (4) are offences of strict liability. This
provision contains a note referring to section 6.1 of the Criminal Code,
which explains the concept of strict liability.
Offences under subsections 18HI(2) and (4) will attract a lesser penalty
than the corresponding offence requiring a fault element. These provisions
are designed to encourage people to be vigilant in ensuring that they do
not engage in the prohibited behaviour and to deter people from engaging in
that behaviour.
Proposed subsection 18HI(6) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18HI(1), (2), (3) and (4). This is
because these offences could be committed outside Australia in
circumstances where it may be appropriate and practicable to take action
against the person who committed the offence. Proposed subsection 18HI(6)
is designed to be consistent with the principles discussed in par 4.8 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers.
Part VI - Articles packed in advance ready for sale
Division 1 - Overview of Part
Section 18J Overview
This section highlights the key elements of new Part VI of the Act.
Division 2-Marking packed articles
Subdivision 2 - A-Required package information
Section 18JA Package must be marked with required package information-
packer
Proposed subsection 18JA(1) provides for an offence in relation to an
article, packed in advance ready for sale, where the package is not marked
with certain information, such as the name and address of the packer. This
offence requires a fault element to be proven with respect to its physical
elements (which must also be proven). Under subsection 18JA(1), a person
commits an offence if:
. the person packs an article; and
. the article is packed in advance ready for sale; and
. the packed article is of a class for which one or more of the
following kinds of information is prescribed:
- the name and address of the person who packed the article or
on whose behalf the article was packed;
- the measurement of the article;
- any other information prescribed for the purposes of this
subparagraph; and
. the person does not mark the package with that information.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JA(2) provides for an offence in relation to an
article, packed in advance ready for sale, where the package is not marked
with certain information, such as the name and address of the packer. Under
subsection 18JA(2), a person commits an offence if:
. the person packs an article; and
. the article is packed in advance ready for sale; and
. the packed article is of a class for which one or more of the
following kinds of information is prescribed:
- the name and address of the person who packed the article or
on whose behalf the article was packed;
- the measurement of the article;
- any other information prescribed for the purposes of this
subparagraph; and
. the person does not mark the package with that information.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18JA(3) provides that the offence under proposed
subsection 18JA(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JA(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the relevant prohibited behaviour and to deter people from engaging in that
behaviour.
Proposed subsection 18JA(4) provides for a specific defence in relation to
the offences under proposed subsections 18JA(1) and (2). Under proposed
subsection 18JA(4), subsections 18JA(1) and 18JA(2) do not apply as a
result of subparagraph 18JA(1)(c)(i) or 18JA(2)(c)(i) if the person knows
that the article is to be sold on the premises on which it was packed for
the consumption or use of the purchaser. The note to proposed subsection
18JA(4) explains that a defendant bears an evidential burden in relation to
this defence, and refers to subsection 13.3(3) of the Criminal Code, which
explains the concept of an 'evidential burden'. This provision is designed
to be consistent with par 4.6 of A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers. In particular, whether a defendant
knows an article is to be sold on particular premises is likely to be a
matter peculiarly within the knowledge of that defendant.
Proposed subsection 18JA(5) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JA (1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JA(5) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18JB Package must be marked with required package information-
importer
Proposed subsection 18JB(1) provides for an offence in relation to an
importer of an article, packed in advance ready for sale, where the package
is not marked with certain information, such as the name and address of the
packer. This offence requires a fault element to be proven with respect to
its physical elements (which must also be proven). Under subsection
18JB(1), a person commits an offence if:
. the person imports an article; and
. the article is packed in advance ready for sale; and
. the packed article is of a class for which one or more of the
following kinds of information is prescribed:
- the name and address of the person who packed the article or
on whose behalf the article was packed;
- the measurement of the article;
- any other information prescribed for the purposes of this
subparagraph; and
. the package is not marked with that information (whether
before the article is imported, or by the person after the
article is imported).
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JB(2) contains an offence provision also in relation
to an importer of an article. packed in advance ready for sale, where the
package is not marked with certain information, such as the name and
address of the packer. Under subsection 18JB(2), a person commits an
offence if:
. the person imports an article; and
. the article is packed in advance ready for sale; and
. the packed article is of a class for which one or more of the
following kinds of information is prescribed:
- the name and address of the person who packed the article or
on whose behalf the article was packed;
- the measurement of the article;
- any other information prescribed for the purposes of this
subparagraph; and
. the package is not marked with that information (whether
before the article is imported, or by the person after the
article is imported).
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18JB(3) provides that the offence in proposed
subsection 18JB(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JB(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour and to deter people from engaging in that
behaviour.
Proposed subsection 18JB(4) provides for a specific defence in relation to
the offences in proposed subsections 18JB(1) and (2). Under proposed
subsection 18JB(4), subsections 18JB (1) and (2) do not apply if a permit
in relation to the packed article has been issued under section 18JX. The
note to proposed subsection 18JB(4) explains that a defendant bears an
evidential burden in relation to this defence, and refers to subsection
13.3(3) of the Criminal Code, which explains the concept of an 'evidential
burden'. This provision is designed to be consistent with par 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. In particular, a defendant is likely to be well placed to know
whether or not a permit has been issued, and should be able to readily show
if this is, in fact, the case.
Section 18JC Package must be marked with required package information-
seller
Proposed subsection 18JC(1) provides for an offence in relation to the
seller of an article that is packed in advance ready for sale, where the
package is not marked with certain information such as the name and address
of the packer. This offence requires a fault element to be proven with
respect to its physical elements (which must also be proven). Under
subsection 18JC(1), a person commits an offence if:
. the person sells an article; and
. the article has been packed in advance ready for sale; and
. the packed article is of a class for which one or more of the
following kinds of information is prescribed:
- the name and address of the person who packed the article or
on whose behalf the article was packed;
- the measurement of the article;
- the price of the article;
- any other information prescribed for the purposes of this
subparagraph; and
. the package is not marked with that information.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JC(2) contains an offence provision also in relation
to the seller of an article, packed in advance ready for sale, where the
package is not marked with certain information such as the name and address
of the packer. Under subsection 18JC(2), a person commits an offence if:
. the person sells an article; and
. the article has been packed in advance ready for sale; and
. the packed article is of a class for which one or more of the
following kinds of information is prescribed:
- the name and address of the person who packed the article or
on whose behalf the article was packed;
- the measurement of the article;
- the price of the article;
- any other information prescribed for the purposes of this
subparagraph; and
. the package is not marked with that information.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18JC(3) provides that the offence in proposed
subsection 18JC(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JC(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour and to deter people from engaging in that
behaviour.
Proposed subsection 18JC(4) provides for a specific defence in relation to
the offences in proposed subsections 18JC(1) and (2). Under proposed
subsection 18JC(4), subsections 18JC (1) and (2) do not apply if a permit
in relation to the packed article has been issued under section 18JW. The
note to proposed subsection 18JC(4) explains that a defendant bears an
evidential burden in relation to this defence, and refers to subsection
13.3(3) of the Criminal Code, which explains the concept of an 'evidential
burden'. This provision is designed to be consistent with par 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. In particular, a defendant is likely to be well placed to know
whether or not a permit has been issued, and should be able to readily show
if this is, in fact, the case.
Proposed subsection 18JC(5) provides for a specific defence in relation to
the offences in proposed subsections 18JC(1) and (2). Under proposed
subsection 18JC(4), subsections 18JC (1) and (2) do not apply as a result
of subparagraph (1)(c)(i) or (2)(c)(i) if:
. the article is sold on the premises on which it was packed
for the consumption or use of the purchaser; or
. the article was packed outside Australia.
The note to proposed subsection 18JC(5) explains that a defendant bears an
evidential burden in relation to this defence, and refers to subsection
13.3(3) of the Criminal Code, which explains the concept of an 'evidential
burden'. This provision is designed to be consistent with par 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. In particular, whether an article is sold on the premises on which
it was packed for the consumption or use of the purchaser, or the article
was packed outside Australia, are likely to be matters peculiarly within
the knowledge of a possible defendant.
Proposed subsection 18JC(6) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed new subsections 18JC(1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JC(6) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18JD Package must be marked with required package information-
possession, offer or exposure for sale
Proposed subsection 18JD(1) provides for an offence in relation to the
possession, offer or exposure for sale of an article, packed in advance
ready for sale, where the package is not marked with certain information
such as the name and address of the packer. This offence requires a fault
element to be proven with respect to its physical elements (which must also
be proven). Under subsection 18JD(1), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article has been packed in advance ready for sale; and
. the packed article is of a class for which one or more of the
following kinds of information is prescribed:
- the name and address of the person who packed the article
or on whose behalf the article was packed;
- the measurement of the article;
- the price of the article;
- any other information prescribed for the purposes of this
subparagraph; and
. the package is not marked with that information.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JD(2) contains an offence provision also in relation
to the possession, offer or exposure for sale of an article, packed in
advance ready for sale, where the package is not marked with certain
information such as the name and address of the packer. Under subsection
18JD(2), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article has been packed in advance ready for sale; and
. the packed article is of a class for which one or more of the
following kinds of information is prescribed:
- the name and address of the person who packed the article
or on whose behalf the article was packed;
- the measurement of the article;
- the price of the article;
- any other information prescribed for the purposes of this
subparagraph; and
. the package is not marked with that information.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18JD(3) provides that the offence in proposed
subsection 18JD(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JD(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour and to deter people from engaging in that
behaviour.
Proposed subsection 18JD(4) provides for a specific defence in relation to
the offences in proposed subsections 18JD(1) and (2). Under proposed
subsection 18JD(4), subsections 18JG (1) and (2) do not apply if a permit
in relation to the packed article has been issued under section 18JW. The
note to proposed subsection 18JD(4) explains that a defendant bears an
evidential burden in relation to this defence, and refers to subsection
13.3(3) of the Criminal Code, which explains the concept of an 'evidential
burden'. This provision is designed to be consistent with par 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. In particular, a defendant is likely to be well placed to know
whether or not a permit has been issued, and should be able to readily show
if this is, in fact, the case.
Proposed subsection 18JD(5) provides for a specific defence in relation to
the offences in proposed subsections 18JD(1) and (2). Under proposed
subsection 18JD(5), subsections 18JD (1) and (2) do not apply as a result
of subparagraph (1)(c)(i) or (2)(c)(i) if:
. the article is to be sold on the premises on which it was
packed for the consumption or use of the purchaser; or
. the article was packed outside Australia.
The note to proposed subsection 18JD(5) explains that a defendant bears an
evidential burden in relation to this defence, and refers to subsection
13.3(3) of the Criminal Code, which explains the concept of an 'evidential
burden'. This provision is designed to be consistent with par 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. In particular, whether an article is sold on the premises on which
it was packed for the consumption or use of the purchaser, or the article
was packed outside Australia, are likely to be matters peculiarly within
the knowledge of a possible defendant.
Proposed subsection 18JD(6) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JD(1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JD(6) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
18JE Package must be marked in prescribed manner
Proposed subsection 18JE(1) provides for an offence in relation to a person
who fails to mark a package with certain required information. This offence
requires a fault element to be proven with respect to its physical elements
(which must also be proven). Under subsection 18JE(1), a person commits an
offence if:
. the person would commit an offence under section 18JA, 18JB,
18JC or 18JD unless the person marked a package with
information; and
. the manner in which that information is to be marked on the
package is prescribed by the regulations; and
. the person does not mark the package in that manner.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
It is important for the proper operation of the Act that regulations may be
made prescribing the manner in which information is to be marked on a
package, so that this information is readily available, and the regulations
maybe relatively readily amended to accommodate changes in industry
practices and changing practical circumstances. Par 4.2 of A Guide to
Framing Commonwealth Offences, Civil Penalties and Enforcement Powers was
considered when framing this provision.
This provision is designed to strongly deter people from failing to mark
packages in the prescribed manner.
Proposed subsection 18JE(2) provides for an offence in relation to a person
who fails to mark a package with certain required information. Under
subsection 18JE(2), a person commits an offence if:
. the person would commit an offence under section 18JA, 18JB,
18JC or 18JD unless the person marked a package with
information; and
. the manner in which that information is to be marked on the
package is prescribed by the regulations; and
. the person does not mark the package in that manner.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18JE(3) provides that the offence in proposed
subsection 18JE(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JE(3) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they mark packages in
the prescribed manner and to deter people from failing to do so.
Proposed subsection 18JE(4) provides that subsections (1) and (2) do not
apply if a permit in relation to the packed article has been issued under
section 18JX.
The note to proposed subsection 18JE(4) explains that a defendant bears an
evidential burden in relation to this defence, and refers to subsection
13.3(3) of the Criminal Code, which explains the concept of an 'evidential
burden'. This provision is designed to be consistent with par 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. In particular, a defendant is likely to be well placed to know
whether or not a permit has been issued, and should be able to readily show
if this is, in fact, the case.
Subdivision 2 B-Prohibited expressions
Section 18JF Using prohibited expressions-packer
Proposed subsection 18JF(1) provides for an offence in relation to a packer
who marks a package with a prohibited expression. This offence requires a
fault element to be proven with respect to its physical elements (which
must also be proven). Under subsection 18JF(1), a person commits an offence
if:
. the person packs an article; and
. the article is packed in advance ready for sale; and
. the packed article is of a class for which a prohibited
expression in relation to the measurement of the article is
prescribed for the purposes of this paragraph; and
. the person marks the package with the prohibited expression.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
EXAMPLE: This section is designed to stop a person from placing a
statement on a package that refers to the measurement of the article in
terms such as 'jumbo kilogram' or 'giant kilogram.'
Proposed subsection 18JF(2) contains an offence provision also in relation
to a packer who marks a package with a prohibited expression. Under
subsection 18JF(2), a person commits an offence if:
. the person packs an article; and
. the article is packed in advance ready for sale; and
. the packed article is of a class for which a prohibited
expression in relation to the measurement of the article is
prescribed for the purposes of this paragraph; and
. the person marks the package with the prohibited expression.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JF(3) provides that the offence in proposed
subsection 18JF(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JF(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour and to deter people from engaging in that
behaviour.
Proposed subsection 18JF(4) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JF(1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JF(4) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18JG Using prohibited expressions-seller
Proposed subsection 18JG(1) provides for an offence in relation to the
seller of an article, packed in advance ready for sale, where the package
is marked with a prohibited expression. This offence requires a fault
element to be proven with respect to its physical elements (which must also
be proven). Under subsection 18JG(1), a person commits an offence if:
. the person sells an article; and
. the article has been packed in advance ready for sale; and
. the packed article is of a class for which a prohibited
expression in relation to the measurement of the article is
prescribed for the purposes of this paragraph; and
. the package is marked with the prohibited expression.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
It is important that there is power under the regulations to prescribe
prohibited expressions in relation to the measurement of an article, so
that there is a readily available document setting out prohibited
expressions and these expressions can be readily relatively amended to
accommodate changing business practices and circumstances. Par 4.2 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers was considered when framing this provision.
Subsection 18JG(1) is designed to strongly deter people from engaging in
the prohibited behaviour.
Proposed subsection 18JG(2) contains an offence provision also in relation
to the seller of an article, packed in advance ready for sale, where the
package is marked with a prohibited expression. Under subsection 18JG(2), a
person commits an offence if:
. the person sells an article; and
. the article has been packed in advance ready for sale; and
. the packed article is of a class for which a prohibited
expression in relation to the measurement of the article is
prescribed for the purposes of this paragraph; and
. the package is marked with the prohibited expression.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JG(3) provides that the offence in proposed
subsection 18JG(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JG(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour and to deter people from engaging in that
behaviour.
Proposed subsection 18JG(4) provides for a specific defence in relation to
the offences in proposed subsections 18JG(1) and (2). Under proposed
subsection 18JG(4), subsections 18JG(1) and (2) do not apply if a permit in
relation to the packed article has been issued under section 18JX. The note
to proposed subsection 18JG(4) explains that a defendant bears an
evidential burden in relation to this defence, and refers to subsection
13.3(3) of the Criminal Code, which explains the concept of an 'evidential
burden'. This provision is designed to be consistent with par 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. In particular, a defendant is likely to be well placed to know
whether or not a permit has been issued, and should be able to readily show
if this is, in fact, the case.
Proposed subsection 18JG(5) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JG(1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JG(5) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18JH Using prohibited expressions-possession, offer or exposure for
sale
Proposed subsection 18JH(1) provides for an offence in relation to the
possession, offer or exposure for sale of an article, packed in advance
ready for sale, where the package is marked with a prohibited expression.
This offence requires a fault element to be proven with respect to its
physical elements (which must also be proven). Under subsection 18JH(1), a
person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article has been packed in advance ready for sale; and
. the packed article is of a class for which a prohibited
expression in relation to the measurement of the article is
prescribed for the purposes of this paragraph; and
. the package is marked with the prohibited expression.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JH(2) contains an offence provision also in relation
to the possession, offer or exposure for sale of an article, packed in
advance ready for sale, where the package is marked with a prohibited
expression. Under subsection 18JH(2), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article has been packed in advance ready for sale; and
. the packed article is of a class for which a prohibited
expression in relation to the measurement of the article is
prescribed for the purposes of this paragraph; and
. the package is marked with the prohibited expression.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JH(3) provides that the offence in proposed
subsection 18JH(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JH(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour and to deter people from engaging in that
behaviour.
Proposed subsection 18JH(4) provides for a specific defence in relation to
the offences in proposed subsections 18JH(1) and (2). Under proposed
subsection 18JH(4), subsections 18JH(1) and (2) do not apply if a permit in
relation to the packed article has been issued under section 18JX. The note
to proposed subsection 18JH(4) explains that a defendant bears an
evidential burden in relation to this defence, and refers to subsection
13.3(3) of the Criminal Code, which explains the concept of an 'evidential
burden'. This provision is designed to be consistent with par 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. In particular, a defendant is likely to be well placed to know
whether or not a permit has been issued, and should be able to readily show
if this is, in fact, the case.
Proposed subsection 18JH(5) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JH(1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JH(5) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Division 3-Average Quantity System for packed articles
Subdivision 3 A-Preliminary
Section 18JI Overview of Division
This section highlights the key elements of new Division 3 of Part VI of
the Act.
Subdivision 3 B-AQS marks
Section 18JJ What is an AQS mark?
Proposed section 18JJ provides that an AQS mark is a mark prescribed by the
regulations as an AQS mark.
Section 18JK AQS mark must be used in accordance with regulations
Proposed section 18JK(1) provides that the regulations may prescribe where
an AQS mark is to be marked.
Proposed subsection 18JK(2) provides for an offence in relation to marking
of a package with an AQS mark where it is done otherwise in accordance with
the regulations. This offence requires a fault element to be proven with
respect to its physical elements (which must also be proven). Under
subsection 18JK(2), a person commits an offence if:
. the person marks an AQS mark on a package; and
. the marking is done otherwise than in accordance with the
regulations.
The offence is punishable by a penalty of 100 penalty units (currently
$11,000).
Regulations will be used to prescribe the proper use of an AQS mark by a
person who uses such a mark. It is important for the proper administration
of Subdivision 3B that the proper use of an AQS mark is prescribed in a
readily available document (such as the regulations), and that these
requirements may be relatively readily amended to accommodate changes in
industry practice and practical circumstances. Par 4.2 of A Guide to
Framing Commonwealth Offences, Civil Penalties and Enforcement Powers was
considered when framing this provision.
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JK(3) provides for an offence in relation to marking
of a package with an AQS mark where it is done otherwise in accordance with
the regulations. Under subsection 18JK(3), a person commits an offence if:
. the person marks an AQS mark on a package; and
. the marking is done otherwise than in accordance with the
regulations.
The offence is punishable by a penalty of 20 penalty units (currently
$2,200).
Proposed subsection 18JK(4) provides that the offence in proposed
subsection 18JK(3) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18JK(3) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour and to deter people from engaging in that
behaviour.
Section 18JL Using misleading marks
Proposed subsection 18JL(1) provides for an offence in relation to the
packer of an article, where the article bears a misleading mark. This
offence requires a fault element to be proven with respect to its physical
elements (which must also be proven). Under subsection 18JL(1), a person
commits an offence if:
. packs an article in advance ready for sale; and
. marks the article with a mark that is not an AQS mark, but
that is likely to give the impression that it is an AQS mark.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JL(2) provides for an offence in relation to the
packer of an article, where the article bears a misleading mark. Under
subsection 18JL(2), a person commits an offence if:
. packs an article in advance ready for sale; and
. marks the article with a mark that is not an AQS mark, but
that is likely to give the impression that it is an AQS mark.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JL(3) provides for an offence in relation to the
possession, offer or exposure for sale of an article, where the article
bears a misleading mark. This offence requires a fault element to be proven
with respect to its physical elements (which must also be proven). Under
subsection 18JL(3), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article has been packed in advance ready for sale; and
. the article is marked with a mark that is not an AQS mark,
but that is likely to give the impression that it is an AQS
mark.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JL(4) provides for an offence in relation to the
possession, offer or exposure for sale an article bearing a misleading
mark. Under subsection 18JL(4), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article has been packed in advance ready for sale; and
. the article is marked with a mark that is not an AQS mark,
but that is likely to give the impression that it is an AQS
mark.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JL(5) provides for an offence in relation to the
seller of an article bearing a misleading mark. This offence requires a
fault element to be proven with respect to its physical elements (which
must also be proven). Under subsection 18JL(5), a person commits an offence
if:
. the person sells an article; and
. the article has been packed in advance ready for sale; and
. the article is marked with a mark that is not an AQS mark,
but that is likely to give the impression that it is an AQS
mark.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour.
Proposed subsection 18JL(6) provides for an offence in relation to the
seller of an article that bears a misleading mark. Under subsection
18JL(6), a person commits an offence if:
. the person sells an article; and
. the article has been packed in advance ready for sale; and
. the article is marked with a mark that is not an AQS mark,
but that is likely to give the impression that it is an AQS
mark.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JL(7) provides that the offences in proposed
subsections 18JL(2), (4) and (6) are offences of strict liability. This
provision contains a note referring to section 6.1 of the Criminal Code,
which explains the concept of strict liability.
Offences under subsections 18JL(2),(4) and (6) will attract a lesser
penalty than the corresponding offence requiring a fault element. These
provisions are designed to encourage people to be vigilant in ensuring that
they do not engage in the prohibited behaviour and to deter people from
engaging in that behaviour.
Subdivision 3 C - Shortfall
Section 18JM Shortfall offence-packer
Proposed subsection 18JM(1) provides for a shortfall offence in relation to
the packer of an article packed in advance ready for sale, marked with an
AQS mark. Subject to proposed subsection 18JM(4), this offence requires a
fault element to be proven with respect to its physical elements (which
must also be proven). Under subsection 18JM(1), a person commits an offence
if:
. the person packs an article; and
. the article is packed in advance ready for sale; and
. the package is marked with an AQS mark; and
. the person:
- marks the package with a measurement or minimum measurement
of the article contained in the package; or
- marks the package with a representation (including a statement
as to price) by which the measurement of the article contained
in the package can be worked out; or
- otherwise, by any document or statement, represents the
measurement or minimum measurement of the article contained in
the package, or makes a representation (including a
statement as to price) by which the measurement of the article
contained in the package can be worked out; and
. the package is one of a group of packages of the same kind
that, once packed, are on the same premises or in the same
vehicle; and
. the number of packages in the group equals or exceeds the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, fails testing in accordance with AQS
test procedures.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from committing
shortfall offences.
Proposed subsection 18JM(2) provides for a shortfall offence in relation to
the packer of an article packed in advance ready for sale, marked with an
AQS mark. Under subsection 18JM(2), a person commits an offence if:
. the person packs an article; and
. the article is packed in advance ready for sale; and
. the package is marked with an AQS mark; and
. the person:
- marks the package with a measurement or minimum measurement
of the article contained in the package; or
- marks the package with a representation (including a statement
as to price) by which the measurement of the article contained
in the package can be worked out; or
- otherwise, by any document or statement, represents the
measurement or minimum measurement of the article contained in
the package, or makes a representation (including a
statement as to price) by which the measurement of the article
contained in the package can be worked out; and
. the package is one of a group of packages of the same kind
that, once packed, are on the same premises or in the same
vehicle; and
. the number of packages in the group equals or exceeds the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, fails testing in accordance with AQS
test procedures.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JM(3) provides that subject to proposed subsection
18JM(4), the offence in proposed subsection 18JM(2) is an offence of strict
liability. This provision contains a note referring to section 6.1 of the
Criminal Code, which explains the concept of strict liability.
Offences under subsection 18JM(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not commit a
shortfall offence and to deter people from committing such offences.
Proposed subsection 18JM(4) provides that absolute liability applies to the
physical elements set out in proposed paragraphs 18JM(1)(e), (1)(f), (2)(e)
and (2)(f). This means that there are no fault elements for the physical
elements set out in those paragraphs, and the defence of mistake of fact,
under s 9.2 of the Criminal Code, is not available in relation to those
physical elements. Proposed subsection 18JM(4) contains a note referring to
section 6.2 of the Criminal Code, which explains the concept of absolute
liability.
The application of absolute liability to these particular physical elements
of the offences created under subsections 18JM(1) and (2) is consistent
with the principles set out in A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers. Specifically, absolute liability is
being applied to jurisdictional elements of the offences (which can be
established as simple propositions of fact), rather than elements going to
the essence of the offence. Furthermore, report 6/2002 of the Senate
Standing Committee for the Scrutiny of Bills was taken into account in
relation to this provision.
Proposed subsection 18JM(5) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JM(1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JM(5) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18JN Shortfall offence-importer
Proposed subsection 18JN(1) provides for a shortfall offence in relation to
the importer of an article packed in advance ready for sale, marked with an
AQS mark. Subject to proposed subsection 18JN(4), this offence requires a
fault element to be proven with respect to its physical elements (which
must also be proven). Under subsection 18JN(1), a person commits an offence
if:
. the person imports an article into Australia; and
. the article is packed in advance ready for sale; and
. the package is marked with an AQS mark; and
. one of the following circumstances exist:
- the package is marked with a measurement or minimum
measurement of the article contained in the package;
- the package is marked with a representation (including a
statement as to price) by which the measurement of the article
contained in the package can be worked out;
- a representation is otherwise made, by any document or
statement, about the measurement or minimum measurement of
the article contained in the package;
- a representation is otherwise made (including a statement as to
price) by which the measurement of the article contained
in the package can be worked out; and
. the package is one of a group of packages of the same kind
that, once packed, are on the same premises or in the same
vehicle; and
. the number of packages in the group equals or exceeds the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, fails testing in accordance with AQS
test procedures.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from committing
shortfall offences.
Proposed subsection 18JN(2) provides for a shortfall offence in relation to
the importer of an article packed in advance ready for sale, marked with
an AQS mark. Under subsection 18JN(2), a person commits an offence if:
. the person imports an article into Australia; and
. the article is packed in advance ready for sale; and
. the package is marked with an AQS mark; and
. one of the following circumstances exist:
- the package is marked with a measurement or minimum
measurement of the article contained in the package;
- the package is marked with a representation (including a
statement as to price) by which the measurement of the article
contained in the package can be worked out;
- a representation is otherwise made, by any document or
statement, about the measurement or minimum measurement of
the article contained in the package;
- a representation is otherwise made (including a statement as to
price) by which the measurement of the article contained
in the package can be worked out; and
. the package is one of a group of packages of the same kind
that, once packed, are on the same premises or in the same
vehicle; and
. the number of packages in the group equals or exceeds the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, fails testing in accordance with AQS
test procedures.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JN(3) provides that, subject to proposed subsection
18JN(4), the offence in proposed subsection 18JN(2) is an offence of strict
liability. This provision contains a note referring to section 6.1 of the
Criminal Code, which explains the concept of strict liability.
Offences under subsection 18JN(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not commit a
shortfall offence and to deter people from committing such an offence.
Proposed subsection 18JN(4) provides that absolute liability applies to the
physical elements set out in proposed paragraphs 18JN(1)(e), (1)(f), (2)(e)
and (2)(f). This means that there are no fault elements for the physical
elements set out in those paragraphs, and the defence of mistake of fact,
under s 9.2 of the Criminal Code, is not available in relation to those
physical elements. Proposed subsection 18JN(4)contains a note referring to
section 6.2 of the Criminal Code, which explains the concept of absolute
liability.
The application of absolute liability to these particular physical elements
of the offences created under subsections 18JN(1) and (2) is consistent
with the principles set out in A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers. Specifically, absolute liability is
being applied to jurisdictional elements of the offences (which can be
established as simple propositions of fact), rather than elements going to
the essence of the offence. Furthermore, report 6/2002 of the Senate
Standing Committee for the Scrutiny of Bills was taken into account in
relation to this provision.
Section 18JO Shortfall offence - possession, offer or exposure for sale
Proposed subsection 18JO(1) provides for a shortfall offence in relation to
a person who possesses an article for sale, or offers or exposes it for
sale, where the article is packed in advance ready for sale and marked with
an AQS mark. Subject to proposed subsection 18JO(4), this offence requires
a fault element to be proven with respect to its physical elements (which
must also be proven). Under subsection 18JO(1), a person commits an offence
if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article is packed in advance ready for sale; and
. the package is marked with an AQS mark; and
. the package is marked with:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. the package is one of a group of packages of the same kind
that, at the time of possession, offer or exposure, are on
the same premises or in the same vehicle; and
. the number of packages in the group equals or exceeds the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, fails testing in accordance with AQS
test procedures.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from committing a
shortfall offence.
Proposed subsection 18JO(2) provides for a shortfall offence in relation to
a person who possesses an article for sale, or offers or exposes it for
sale, where the article is packed in advance ready for sale and is marked
with an AQS mark. Under subsection 18JO(2), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article is packed in advance ready for sale; and
. the package is marked with an AQS mark; and
. the package is marked with:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. the package is one of a group of packages of the same kind
that, once packed, are on the same premises or in the same
vehicle; and
. the number of packages in the group equals or exceeds the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, fails testing in accordance with AQS
test procedures.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JO(3) provides that, subject to proposed subsection
18JN(4), the offence in proposed subsection 18JN(2) is an offence of strict
liability. This provision contains a note referring to section 6.1 of the
Criminal Code, which explains the concept of strict liability.
Offences under subsection 18JO(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not commit a
shortfall offence and to deter people from committing such an offence.
Proposed subsection 18JO(4) provides that absolute liability applies to the
physical elements set out in proposed paragraphs 18JO(1)(e), (1)(f), (2)(e)
and (2)(f). This means that there are no fault elements for the physical
elements set out in those paragraphs, and the defence of mistake of fact,
under s 9.2 of the Criminal Code, is not available in relation to those
physical elements. Proposed subsection 18JO(4) contains a note referring to
section 6.2 of the Criminal Code, which explains the concept of absolute
liability.
The application of absolute liability to these particular physical elements
of the offences created under subsections 18JO(1) and (2) is consistent
with the principles set out in A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers. Specifically, absolute liability is
being applied to jurisdictional elements of the offences (which can be
established as simple propositions of fact), rather than elements going to
the essence of the offence. Furthermore, report 6/2002 of the Senate
Standing Committee for the Scrutiny of Bills was taken into account in
relation to this provision.
Section 18JP Shortfall offence - sale
Proposed subsection 18JP(1) provides for a shortfall offence in relation to
a person who sells an article that is packed in advance ready for sale,
marked with an AQS mark. Subject to proposed subsection 18JP(4), this
offence requires a fault element to be proven with respect to its physical
elements (which must also be proven). Under subsection 18JP(1), a person
commits an offence if:
. the sells an article; and
. the article is packed in advance ready for sale; and
. the package is marked with an AQS mark; and
. the package is marked with:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. the package is one of a group of packages of the same kind
that, at the time of possession, offer or exposure, are on
the same premises or in the same vehicle; and
. the number of packages in the group equals or exceeds the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, fails testing in accordance with AQS
test procedures.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from committing a
shortfall offence.
Proposed subsection 18JP(2) provides for a shortfall offence in relation to
a person who sells an article that is packed in advance ready for sale,
marked with an AQS mark. Under subsection 18JP(2), a person commits an
offence if:
. the person sells an article; and
. the article is packed in advance ready for sale; and
. the package is marked with an AQS mark; and
. the package is marked with:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. the package is one of a group of packages of the same kind
that, once packed, are on the same premises or in the same
vehicle; and
. the number of packages in the group equals or exceeds the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, fails testing in accordance with AQS
test procedures.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JP(3) provides that, subject to proposed subsection
18JP(4), the offence in proposed subsection 18JP(2) is an offence of strict
liability. This provision contains a note referring to section 6.1 of the
Criminal Code, which explains the concept of strict liability.
Offences under subsection 18JP(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not commit a
shortfall offence and to deter people from committing such an offence.
Proposed subsection 18JP(4) provides that absolute liability applies to the
physical elements set out in proposed paragraphs 18JP(1)(e), (1)(f), (2)(e)
and (2)(f). This means that there are no fault elements for the physical
elements set out in those paragraphs, and the defence of mistake of fact,
under s 9.2 of the Criminal Code, is not available in relation to those
physical elements. Proposed subsection 18JP(4)contains a note referring to
section 6.2 of the Criminal Code, which explains the concept of absolute
liability.
The application of absolute liability to these particular physical elements
of the offences created under subsections 18JP(1) and (2) is consistent
with the principles set out in A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers. Specifically, absolute liability is
being applied to jurisdictional elements of the offences (which can be
established as simple propositions of fact), rather than elements going to
the essence of the offence. Furthermore, report 6/2002 of the Senate
Standing Committee for the Scrutiny of Bills was taken into account in
relation to this provision.
Proposed subsection 18JP(5) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JP(1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JP(5) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Division 4-Packed Articles not marked with AQS mark
Subdivision 4-A - Overview
Section 18JQ Overview of Division
This section highlights the key elements of new Division 4 of Part VI of
the Act.
Subdivision 4-B - Shortfall offences
Section 18JR When is there a shortfall in the measurement of a packed
article?
Proposed section 18JR explains the circumstances in which there will be a
shortfall in the measurement of an article that has been packed in advance
ready for sale and that is not marked with an AQS mark. There will be a
shortfall if:
. all of the following conditions are met:
- the package is one of a group of packages of the same kind
that are on the same premises or in the same vehicle;
- the number of packages in the group equals or exceeds the
national test threshold;
- a sample of the group, selected in accordance with
national sampling procedures, is tested in accordance with
national group test procedures and the sample fails; or
. the package is tested in accordance with national single
article test procedures and the package fails.
Section 18JS Shortfall offence - packer
Proposed subsection 18JS(1) provides for a shortfall offence in relation to
the packer of an article, packed in advance for sale, that is not marked
with an AQS mark. Subject to proposed subsection 18JS(4), this offence
requires a fault element to be proven with respect to its physical elements
(which must also be proven). Under subsection 18JS(1), a person commits an
offence if:
. the person packs an article; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the person:
- marks the package with a measurement or minimum measurement
of the article contained in the package; or
- marks the package with a representation (including a statement
as to price) by which the measurement of the article contained
in the package can be worked out; or
- otherwise, by any document or statement, represents the
measurement or minimum measurement of the article contained in
the package, or makes a representation (including a
statement as to price) by which the measurement of the article
contained in the package can be worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
The provision is designed to strongly deter people from committing a
shortfall offence.
Proposed subsection 18JS(2) provides for a shortfall offence in relation to
the packer of an article, packed in advance for sale, that is not marked
with an AQS mark. Under subsection 18JS(2), a person commits an offence if:
. the person packs an article; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the person:
- marks the package with a measurement or minimum measurement
of the article contained in the package; or
- marks the package with a representation (including a statement
as to price) by which the measurement of the article contained
in the package can be worked out; or
- otherwise, by any document or statement, represents the
measurement or minimum measurement of the article contained in
the package, or makes a representation (including a
statement as to price) by which the measurement of the article
contained in the package can be worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JS(3) provides that, subject to proposed subsection
18JS(4), the offence in proposed subsection 18JS(2) is an offence of strict
liability. This provision contains a note referring to section 6.1 of the
Criminal Code, which explains the concept of strict liability.
Offences under subsection 18JS(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not commit a
shortfall offence and to deter people from committing such an offence.
Proposed subsection 18JS(4) provides that absolute liability applies to the
physical elements set out in subparagraphs (a)(i) and (a)(ii)of the
definition of shortfall in section 18JR, as applied for the purposes of
paragraphs 18JS(1)(e) and (2)(e). This means that there are no fault
elements for those physical elements, as applied in section 18JS, and the
defence of mistake of fact, under s 9.2 of the Criminal Code, is not
available in relation to those physical elements. Proposed subsection
18JS(4) contains a note referring to section 6.2 of the Criminal Code,
which explains the concept of absolute liability.
The application of absolute liability to these particular physical elements
of the definition of shortfall in subparagraphs 18JR(a)(i) and (a)(ii) (as
applied for the purposes of the offence provisions set out in paragraphs
18JS(1)(e) and 18JS(2)(e)) is consistent with the principles set out in A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. Specifically, absolute liability is being applied to jurisdictional
elements of the offences (which can be established as simple propositions
of fact), rather than elements going to the essence of the offences.
Furthermore, report 6/2002 of the Senate Standing Committee for the
Scrutiny of Bills was taken into account in relation to this provision.
Proposed subsection 18JS(5) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JS(1) and (2). This is because
these offences could be committed outside Australia in circumstances where
it may be appropriate and practicable to take action against the person who
committed the offence. Proposed subsection 18JS(5) is designed to be
consistent with the principles discussed in par 4.8 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18JT Shortfall offence - importer
Proposed subsection 18JT(1) provides for a shortfall offence in relation to
the importer of an article, packed in advance for sale, that is not marked
with an AQS mark. Subject to proposed subsection 18JT(4), this offence
requires a fault element to be proven with respect to its physical elements
(which must also be proven). Under subsection 18JT(1), a person commits an
offence if:
. the person imports into Australia an article; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. one of the following circumstances exist:
- the package is marked with a measurement or minimum
measurement of the article contained in the package;
- the package is marked with a representation (including a
statement as to price) by which the measurement of the article
contained in the package can be worked out;
- a representation is otherwise made, by any document or
statement, about the measurement or minimum measurement of
the article contained in the package;
- a representation is otherwise made (including a statement as to
price) by which the measurement of the article contained
in the package can be worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
The provision is designed to strongly deter people from committing a
shortfall offence.
Proposed subsection 18JT(2) provides for a shortfall offence in relation to
the importer of an article, packed in advance for sale, that is not marked
with an AQS mark. Under subsection 18JT(2), a person commits an offence
if:
. the person imports into Australia an article; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. one of the following circumstances exist:
- the package is marked with a measurement or minimum
measurement of the article contained in the package;
- the package is marked with a representation (including a
statement as to price) by which the measurement of the article
contained in the package can be worked out; or
- a representation is otherwise made, by any document or
statement, about the measurement or minimum measurement of
the article contained in the package; or
- a representation is otherwise made (including a statement as to
price) by which the measurement of the article contained
in the package can be worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JT(3) provides that, subject to proposed subsection
18JT(4), the offence in proposed subsection 18JT(2) is an offence of strict
liability. This provision contains a note referring to section 6.1 of the
Criminal Code, which explains the concept of strict liability.
Offences under subsection 18JT(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not commit a
shortfall offence and to deter people from committing such an offence.
Proposed subsection 18JT(4) provides that absolute liability applies to the
physical elements set out in subparagraphs (a)(i) and (a)(ii)of the
definition of shortfall in section 18JR, as applied for the purposes of
paragraphs 18JT(1)(e) and (2)(e). This means that there are no fault
elements for those physical elements, as applied in section 18JT, and the
defence of mistake of fact, under s 9.2 of the Criminal Code, is not
available in relation to those physical elements. Proposed subsection
18JT(4)contains a note referring to section 6.2 of the Criminal Code, which
explains the concept of absolute liability.
The application of absolute liability to these particular physical elements
of the definition of shortfall in subparagraphs 18JR(a)(i) and (a)(ii) (as
applied for the purposes of the offence provisions set out in paragraphs
18JT(1)(e) and 18JT(2)(e)) is consistent with the principles set out in A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. Specifically, absolute liability is being applied to jurisdictional
elements of the offences (which can be established as simple propositions
of fact), rather than elements going to the essence of the offences.
Furthermore, report 6/2002 of the Senate Standing Committee for the
Scrutiny of Bills was taken into account in relation to this provision.
Section 18JU Shortfall offence - possession, offer or exposure for sale
Proposed subsection 18JU(1) provides for a shortfall offence in relation to
a person who possesses for sale, or offers or exposes for sale, an article,
packed in advance for sale, that is not marked with an AQS mark. Subject to
proposed subsection 18JU(6), this offence requires a fault element to be
proven with respect to its physical elements (which must also be proven).
Under subsection 18JU(1), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the package is marked with:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
The provision is designed to strongly deter people from committing a
shortfall offence.
Proposed subsection 18JU(2) provides for a shortfall offence in relation to
a person who possesses for sale, or offers or exposes for sale an article,
packed in advance for sale, that is not marked with an AQS mark. Under
subsection 18JU(2), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the package is marked with:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JU(3) provides for a shortfall offence in relation to
a person who possesses for sale, or offers or exposes for sale, an article,
packed in advance for sale, that is not marked with an AQS mark. Subject to
proposed subsection 18JU(6), this offence requires a fault element to be
proven with respect to its physical elements (which must also be proven).
Under subsection 18JU(3), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the packed article is contained in a receptacle; and
. either or the following is marked on or near the receptacle:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
The provision is designed to strongly deter people from committing a
shortfall offence.
Proposed subsection 18JU(4) provides for a shortfall offence in relation to
a person who possesses for sale, or offers or exposes for sale, an article,
packed in advance for sale, that is not marked with an AQS mark. Under
subsection 18JU(4), a person commits an offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the packed article is contained in a receptacle; and
. either or the following is marked on or near the receptacle:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JU(5) provides that, subject to proposed subsection
18JU(6), the offences in proposed subsections 18JU(2) and (4) are offences
of strict liability. This provision contains a note referring to section
6.1 of the Criminal Code, which explains the concept of strict liability.
Offences under subsections 18JU(2) and (4) will attract a lesser penalty
than the corresponding offences requiring a fault element. These provisions
are designed to encourage people to be vigilant in ensuring that they do
not commit a shortfall offence and to deter people from committing such an
offence.
Proposed subsection 18JU(6) provides that absolute liability applies to the
physical elements set out in subparagraphs (a)(i) and (a)(ii)of the
definition of shortfall in section 18JR, as applied for the purposes of
paragraphs 18JU(1)(e), (2)(e), (3)(f) and 4(f). This means that there are
no fault elements for those physical elements, as applied in section 18JU,
and the defence of mistake of fact, under s 9.2 of the Criminal Code, is
not available in relation to those physical elements. Proposed subsection
18JU(6) contains a note referring to section 6.2 of the Criminal Code,
which explains the concept of absolute liability.
The application of absolute liability to these particular physical elements
of the definition of shortfall in subparagraphs 18JR(a)(i) and (a)(ii) (as
applied for the purposes of the offence provisions set out in paragraphs
18JU(1)(e), (2)(e), (3)(f) and (4)(f)) is consistent with the principles
set out in A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers. Specifically, absolute liability is being applied to
jurisdictional elements of the offences (which can be established as simple
propositions of fact), rather than elements going to the essence of the
offences. Furthermore, report 6/2002 of the Senate Standing Committee for
the Scrutiny of Bills was taken into account in relation to this provision.
Proposed subsection 18JU(7) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JU(1), (2), (3) and (4). This is
because these offences could be committed outside Australia in
circumstances where it may be appropriate and practicable to take action
against the person who committed the offence. Proposed subsection 18JU(7)
is designed to be consistent with the principles discussed in par 4.8 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers.
Section 18JV Shortfall offence - seller
Proposed subsection 18JV(1) provides for a shortfall offence in relation to
a person who sells an article, packed in advance for sale, that is not
marked with an AQS mark. Subject to proposed subsection 18JV(6), this
offence requires a fault element to be proven with respect to its physical
elements (which must also be proven). Under subsection 18JV(1), a person
commits an offence if:
. the person sells an article; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the package is marked with:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
The provision is designed to strongly deter people from committing a
shortfall offence.
Proposed subsection 18JV(2) provides for a shortfall offence in relation to
a person who sells an article, packed in advance for sale, that is not
marked with an AQS mark. Under subsection 18JV(2), a person commits an
offence if:
. the person sells an article; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the package is marked with:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JV(3) provides for a shortfall offence in relation to
a person who sells an article, packed in advance for sale, that is not
marked with an AQS mark. Subject to proposed subsection 18JV(6), this
offence requires a fault element to be proven with respect to its physical
elements (which must also be proven). Under subsection 18JV(3), a person
commits an offence if:
. the person sells an article; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the packed article is contained in a receptacle; and
. either or the following is marked on or near the receptacle:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
The provision is designed to strongly deter people from committing a
shortfall offence.
Proposed subsection 18JV(4) provides for a shortfall offence in relation to
a person who sells an article, packed in advance for sale, that is not
marked with an AQS mark. Under subsection 18JV(4), a person commits an
offence if:
. the person possesses an article for sale, or offers or
exposes it for sale; and
. the article is packed in advance ready for sale; and
. the package is not marked with an AQS mark; and
. the packed article is contained in a receptacle; and
. either or the following is marked on or near the receptacle:
- a measurement or minimum measurement of the article
contained in the package; or
- a representation (including a statement as to price) by which
the measurement of the article contained in the package can be
worked out; and
. there is a shortfall in the measurement of the article
contained in the package.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18JV(5) provides that, subject to proposed subsection
18JV(6), the offences in proposed subsections 18JV(2) and (4) are offences
of strict liability. This provision contains a note referring to section
6.1 of the Criminal Code, which explains the concept of strict liability.
Offences under subsections 18JV(2) and (4) will attract a lesser penalty
than the corresponding offences requiring a fault element. These provisions
are designed to encourage people to be vigilant in ensuring that they do
not commit a shortfall offence and to deter people from committing such an
offence.
Proposed subsection 18JV(6) provides that absolute liability applies to the
physical elements set out in subparagraphs (a)(i) and (a)(ii)of the
definition of shortfall in section 18JR, as applied for the purposes of
paragraphs 18JV(1)(e), (2)(e), (3)(f) and 4(f). This means that there are
no fault elements for those physical elements, as applied in section 18JV,
and the defence of mistake of fact, under s 9.2 of the Criminal Code, is
not available in relation to those physical elements. Proposed subsection
18JV(6) contains a note referring to section 6.2 of the Criminal Code,
which explains the concept of absolute liability.
The application of absolute liability to these particular physical elements
of the definition of shortfall in subparagraphs 18JR(a)(i) and (a)(ii) (as
applied for the purposes of the offence provisions set out in paragraphs
18JV(1)(e), (2)(e), (3)(f) and (4)(f)) is consistent with the principles
set out in A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers. Specifically, absolute liability is being applied to
jurisdictional elements of the offences (which can be established as simple
propositions of fact), rather than elements going to the essence of the
offences. Furthermore, report 6/2002 of the Senate Standing Committee for
the Scrutiny of Bills was taken into account in relation to this provision.
Proposed subsection 18JV(7) provides that section 15.2 (extended
geographical jurisdiction-category B) of the Criminal Code applies to
offences against proposed subsections 18JV(1), (2), (3) and (4). This is
because these offences could be committed outside Australia in
circumstances where it may be appropriate and practicable to take action
against the person who committed the offence. Proposed subsection 18JV(7)
is designed to be consistent with the principles discussed in par 4.8 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers.
Division 5 - Permits
Section 18JW Overview
This section highlights the key elements in Division 5 of Part VI of the
Act.
Section 18JX Permits for certain packed articles
Proposed section 18JX provides for the Secretary to issue permits for the:
importation; sale; or possession for sale, or offer or exposure for sale of
an article packed in advance ready for sale, if the package does not
include certain information otherwise required under the Act or includes a
prohibited expression.
Proposed subsection 18JX(1) provides that the Secretary may issue a permit,
in writing, for the importation of an article packed in advance ready for
sale if either of the following apply:
. the package does not include information of the kind
prescribed for the purposes of section 18JB;
. the package is not marked with information of the kind
prescribed for the purposes of section 18JB in the manner
prescribed for the purposes of section 18JE.
Proposed subsection 18JX(2) provides that the Secretary may issue a permit,
in writing, for the sale of a an article packed ready for sale to which any
of the following apply:
. the package does not include information of the kind
prescribed for the purposes of section 18JC;
. the package is not marked with information of the kind
prescribed for the purposes of section 18JC in the manner
prescribed for the purposes of section 18JE;
. the package includes a prohibited expression of the kind
prescribed for the purposes of section 18JG.
Proposed subsection 18JX(3) provides that the Secretary may issue a permit,
in writing, for the possession for sale, or offer or exposure for sale, of
an article packed in advance ready for sale to which either of the
following apply:
. the package is not marked with information of the kind
prescribed for the purposes of section 18JD in the manner
prescribed for the purposes of section 18JE;
. the package includes a prohibited expression of the kind
prohibited by section 18JH.
Proposed subsection 18JX(4) requires the Secretary to be satisfied before
issuing a permit that the circumstances of the breach are minor, that the
markings on the package are not misleading and that requiring rectification
would impose unnecessary costs on business.
Proposed subsection 18JX(5) provides for the specification of terms and
conditions in the permit.
Proposed subsection 18JX(6) provides that permits are to be limited to a
specified period of no more than 6 months. Proposed subsection 18JX(7)
allows the Secretary to extend this period by notice in writing.
Proposed subsection 18JX(8) allows the Secretary to amend or cancel permits
by notice in writing.
Proposed subsection 18JX(9) provides that where a packed article, subject
to a permit, is sold to a person who intends to resell it, that person must
be provided with a copy of the permit and any notices regarding the permit,
issued under subsections 18JX(7) or (8). The penalty for contravening
subsection 18JX(9) is 50 penalty units (currently $5,500).
The purpose of proposed section 18JX is to mitigate unnecessary costs on
business where a business has imported or otherwise purchased packaged
goods for resale and the markings on the package are in breach of the
marking requirements of the Act. It is proposed that the Secretary may
issue a permit to allow the importation, sale and exposure for sale of
these goods, however, only where the Secretary is satisfied that the breach
is minor in nature, the markings on the package are not misleading and that
requiring rectification of the breach would impose an unnecessary cost on
business.
Very few permits have been issued by state and territory jurisdictions
under the current UTML and it is intended that the NMI would continue the
practice of restricting their use.
Permits may be issued subject to specified terms and conditions and are for
limited periods only, as all will contain sunset clauses.
Section 18JY Register of permits
Proposed section 18JY provides that the Secretary must establish, on the
Internet, a public register of prescribed particulars of permits that have
been issued. This is to help ensure that the process of issuing permits is
transparent, and to make the scope of permits transparent to applicants.
Section 18JZ Evidentiary certificate
Proposed section 18JZ provides that documents, certified by the Secretary,
and that purport to be permits, are admissible as prima facie evidence of:
. the fact that a permit was issued; and
. the day on which or the period during which it was in force;
and
. the conditions on the permit.
This section is designed to make it relatively easy to establish that a
permit was issued, the period it covered, and the conditions applicable to
it. These are formal matters that are not likely to be in dispute.
Paragraph 4.6 of A Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers explains that evidentiary certificates are
appropriate in such circumstances.
Part VII - Other articles
Section 18K Overview
This section highlights the key elements of new Part VII of the Act.
Section 18KA Measurement must be open to scrutiny if purchaser present
Proposed subsection 18KA(1) provides for an offence in relation to a person
who sells an unpackaged article, where the price of the article is
determined by measurement of the article, and the customer is present at
the point of sale. The offence requires a fault element to be proven with
respect to its physical elements (which must also be proven). Under
proposed subsection 18KA(1), a person commits an offence if:
. the person sells an article for a price determined by
reference to measurement of the article; and
. the article is not packed in advance ready for sale; and
. the purchaser is present at the point of sale; and
. the measurement is made in either of the following
circumstances:
- the measuring process is not readily visible to the
purchaser;
- any reading or information displayed by the measuring
instrument is not readily visible to the purchaser.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour, and to ensure that customers are given complete
information as to the measurement and price of relevant articles.
Proposed subsection 18KA(2) provides for an offence in relation to a person
who sells an unpackaged article, where the price of the article is
determined by measurement of the article, and the customer is present at
the point of sale. Under proposed subsection 18KA(2), a person commits an
offence if:
. the person sells an article for a price determined by
reference to measurement of the article; and
. the article is not packed in advance ready for sale; and
. the purchaser is present at the point of sale; and
. the measurement is made in either of the following
circumstances:
- the measuring process is not readily visible to the
purchaser;
- any reading or information displayed by the measuring
instrument is not readily visible to the purchaser.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18KA(3) provides that the offence in proposed
subsection 18KA(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18KA(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage businesses to be vigilant in ensuring that they do not engage
in the prohibited behaviour, to deter people from engaging in that
behaviour, and to ensure that customers are given complete information as
to the correct measurement and price of relevant articles.
Section 18KB Purchaser must receive invoice stating measurement if not
present at sale
Proposed subsection 18KB(1) provides for an offence in relation to a person
who sells an unpackaged article, where the price of the article is
determined by measurement of the article, and the purchaser is not present
at the point of sale. The offence requires a fault element to be proven
with respect to its physical elements (which must also be proven). Under
proposed subsection 18KB(1), a person commits an offence if:
. the person sells an article for a price determined by
reference to measurement of the article; and
. the article is not packed in advance ready for sale; and
. the purchaser is not present at the point of sale; and
. the person does not give the purchaser a written statement
of the measurement of the article at the time the article is
delivered.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour, and to ensure that customers are given complete
information as to the measurement and price of relevant articles.
Proposed subsection 18KB(2) provides for an offence in relation to a person
who sells an unpackaged article, where the price of the article is
determined by measurement of the article, and the customer is not present
at the point of sale. Under proposed subsection 18KB(2), a person commits
an offence if:
. the person sells an article for a price determined by
reference to measurement of the article; and
. the article is not packed in advance ready for sale; and
. the purchaser is not present at the point of sale; and
. the person does not give the purchaser a written statement of
the measurement of the article at the time the article is
delivered.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18KB(3) provides that the offence in proposed
subsection 18KB(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18KB(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour, to deter people from engaging in that behaviour,
and to ensure that customers are given complete information as to the
measurement and price of relevant articles.
Section 18KC Articles sold by measurement - price of packaging
Proposed subsection 18KC(1) provides for an offence in relation to a person
who sells an article for a price determined by measurement of the article,
and charges a price for packaging of the article based on the unit price of
the article, even where the customer is informed of this practice. The
offence requires a fault element to be proven with respect to its physical
elements (which must also be proven). Under proposed subsection 18KC(1), a
person commits an offence if:
. the person sells an article for a price determined by
reference to measurement of the article; and
. the article is not packed in advance ready for sale; and
. the person makes packaging available when the article is
sold; and
. the price per unit of measurement of the packaging is
determined in the same way as, or directly or indirectly by
reference to, the price per unit of measurement of the
article.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour of, in effect, gross weighing, that would normally
contravene section 18HI, by charging for packaging material at the same
unit price as the article being sold.
EXAMPLE: A person ('the trader') sells a range of non-packaged fruit and
vegetables at various prices per kilogram, depending on the type of article
(eg. potatoes at $2.50/kg and tomatoes at $4.00/kg). The trader tells a
customer that the trader will charge for packaging of articles at the same
unit price as the article being sold. For example, if the customer buys
potatoes, and puts them in a bag supplied by the vendor, the bag will be
weighed and charged for at the same rate as the potatoes ($2.50/kg). If the
customer buys tomatoes, and puts them in a bag supplied by the vendor, he
or she will be charged at the rate of $4.00/kg for the bag. This means the
customer would be charged variable and unreasonable prices for the
packaging containing the produce, and the sale would be by gross
measurement of the article including the paper bag.
Proposed subsection 18KC(2) provides for an offence in relation to a person
who sells an article for a price determined by measurement of the article,
and charges a price for packaging of the article. Under proposed subsection
18KC(2), a person commits an offence if:
. the person sells an article for a price determined by
reference to measurement of the article; and
. the article is not packed in advance ready for sale; and
. the person makes packaging available when the article is
sold; and
. the price per unit of measurement of the packaging is
determined in the same way as, or directly or indirectly by
reference to, the price per unit of measurement of the
article.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18KC(3) provides that the offence in proposed
subsection 18KC(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
Offences under subsection 18KC(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour, to deter people from engaging in that behaviour,
and to ensure that packaging for relevant articles is properly priced.
Section 18KD Shortfall offence - sale
Proposed subsection 18KD(1) provides for a shortfall offence in relation to
a person who sells an article and makes a representation as to the
measurement of that article, before or at the time of the sale, and the
measurement of the article sold is less than the measurement represented.
This offence requires a fault element to be proven with respect to its
physical elements (which must also be proven). Under subsection 18KD(1), a
person commits an offence if:
. the person sells an article; and
. the article has not been packed in advance ready for sale;
and
. before or at the time of the sale, the person:
- makes a representation about the measurement of the
article; or
- makes a representation (including a statement as to the
price) by which the measurement of the article can be worked
out; and
. the measurement of the article sold is less than represented;
and
. in the case where the representation is made before the time
of the sale - the representation is not corrected before or
at the time of sale.
The offence is punishable by a penalty of 200 penalty units (currently
$22,000).
This provision is designed to strongly deter people from engaging in the
prohibited behaviour, and to help ensure that customers receive the correct
measurement of articles, as represented by the seller.
Proposed subsection 18KD(2) provides for a shortfall offence in relation to
a person who sells an article and makes a representation as to the
measurement of that article before or at the time of the sale. Under
subsection 18KD(2), a person commits an offence if:
. the person sells an article; and
. the article has not been packed in advance ready for sale;
and
. before or at the time of the sale, the person:
- makes a representation about the measurement of the
article; or
- makes a representation (including a statement as to the
price) by which the measurement of the article can be worked
out; and
. the measurement of the article sold is less than represented;
and
. in the case where the representation is made before the time
of the sale - the representation is not corrected before or
at the time of sale.
The offence is punishable by a penalty of 40 penalty units (currently
$4,400).
Proposed subsection 18KD(3) provides that the offence in proposed
subsection 18KD(2) is an offence of strict liability. This provision
contains a note referring to section 6.1 of the Criminal Code which
explains the concept of strict liability.
Offences under subsection 18KD(2) will attract a lesser penalty than the
corresponding offence requiring a fault element. This provision is designed
to encourage people to be vigilant in ensuring that they do not engage in
the prohibited behaviour, to deter people from engaging in that behaviour,
and to help ensure that customers receive the correct measurement of
articles, as represented by the seller.
Part VIII - Enforcement of Parts IV to VII
Division 1 - Overview
Section 18L - Overview
This section highlights the key elements of new Part VIII of the Act.
Division 2 - Evidentiary matters
Section 18LA Evidentiary certificate - shortfall offences
Proposed subsection 18LA(1) provides for evidentiary certificates, signed
by trade measurement inspectors, to be admitted, in offence proceedings
under Subdivision 3-C of Division 3 of Part IV, as prima facie evidence
that:
. a particular package is one of a group of packages of the
same kind that were in the same premises or same vehicle at a
specified time; and
. the number of packages equalled or exceeded the AQS
threshold; and
. a sample of the group, selected in accordance with AQS
sampling procedures, failed AQS test procedures.
Proposed subsection 18LA(2) provides for evidentiary certificates, signed
by trade measurement inspectors, to be admitted in offence proceedings
under Subdivision 4-B of Division 4 of Part VI as prima facie evidence
that:
. a particular package is one of a group of packages of the
same kind that were on the same premises or in the same
vehicle at a specified time;
. the number of packages in the group equalled or exceeded the
national test threshold; and
. a sample of the group, selected in accordance with national
sampling procedures, failed testing in accordance with
national group test procedures.
Proposed subsection 18LA(3) provides for evidentiary certificates, signed
by trade measurement inspectors, to be admitted in offence proceedings
under Subdivision 4-B of Division 4 of Part VI as prima facie evidence that
a package failed testing in accordance with the national single article
test.
Subsection 18LA(4) provides that a document purporting to be a certificate
referred to in subsections 18LA(1), (2) and (3) is, unless the contrary is
established, taken to be such a certificate and to have been properly
given.
Subsections 18LA(1), (2) and (3) are subject to section 18LB. Subject to
section 18LB, after one of these evidentiary certificates is signed by a
trade measurement inspector, the onus is on the defendant to prove that the
contents of the certificate are incorrect.
Section 18LA is designed to be consistent with the principles set out in A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. The section does this by operating so that: certificates are given
by trade measurement inspectors who are independent of the prosecutor in
any particular case; certificates are used to provide evidence of formal
matters, such as whether a package is one of a group of packages of the
same kind that were on the same premises or in the same vehicle at a
certain time; certificates are used to provide evidence of technical
matters, such as whether the number of packages in a group exceeded an AQS
or national test threshold, and whether a sample of the group passed AQS
testing or testing in accordance with national testing procedures; and
certificates are issued in a manner consistent with section 13.6 of the
Criminal Code.
Section 18LB Certificate not to be admitted unless copy given to defendant
14 days before certificate to be admitted in evidence
Proposed section 18LB requires evidentiary certificates to be given to
defendants or their legal representatives by a certain time before
proceedings occur. This is so that defendants are given an opportunity to
respond to the contents of a certificate.
Section 18LC Person giving certificate may be called to give evidence
Proposed section 18LC provides that, if an evidentiary certificate is
admitted into evidence, the defendant may require the person who gave the
certificate to be called as a witness and be cross-examined. However, this
can only occur if the prosecution is given at least 4 days' notice that the
person is to be called, or the court orders that the person may be called.
This is so that defendants are given an adequate opportunity to test the
evidence given in a certificate.
Section 18LD Evidence in support or rebuttal of matters in certificate to
be considered on its merits
Proposed section 18LD provides that evidence in support or rebuttal of an
evidentiary certificate must be considered on its own merits, and its
credibility and probative value are not affected by reason of Division 2.
This provision helps to ensure that defendants are given an adequate
opportunity to challenge evidence presented in a certificate.
Section 18LE Evidence - matters relating to packing
Proposed subsection 18LE(1) provides that if a package in which an article
is packed ready for sale is marked with the name of a person or business,
that marking is evidence that the person or, in the case of a business, the
persons in relation to whom the business's name is registered, packed the
article.
Proposed subsection 18LE(2) provides that if a package containing an
article, packed in advance ready for sale, is marked with an address, that
marking is evidence the package was packed at that address.
Proposed subsection 18LE(3) provides that if a package containing an
article, packed in advance ready for sale, is marked with a date, that
marking is evidence of the date on which the article was packed.
Proposed subsection 18LE(4) provides that if a package containing an
article, packed in advance ready for sale, is marked with any combination
of numbers, letters or symbols to indicate where, when or by whom the
article was packed, that marking is evidence of those matters.
Section 18LE provides an exception to the usual rule of evidence that an
out of court statement cannot be used to prove the thing it asserts. The
section is designed to facilitate evidence of certain things that would
otherwise be difficult to prove, in circumstances where it is unlikely that
the relevant out of court statements (i.e. the markings on the packages)
would be untruthful.
Division 3 - Infringement Notices
Section 18LF When an infringement notice can be given
Proposed section 18LF provides that trade measurement officers may issue
infringement notices where they reasonably suspect a person has committed a
strict liability offence under the Act. A notice must be given within 12
months of the day on which the alleged offence comes to the knowledge of an
inspector.
Consistently with the requirements of Part 6 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers:
. notices may only be issued by specified officials, being
trade measurement officers;
. notices are only issued in relation to strict liability
offences;
. the offences for which notices may be issued are clearly
identified;
. notices are only issued in relation to offences that carry
physical elements that can be readily assessed by a trade
measurement officer, and do not require an assessment of any
fault elements;
. subsection 18LF(2) provides that notices must be issued
within 12 months of discovery of the alleged offence, so that
recipients have a reasonable chance to defend the charge if
required by not having to retrieve details of a very old
event; and
. notices may be issued by a trade measurement officer where he
or she reasonably suspects an offence has occurred - that is,
the officer has discretion in deciding when to issue notices.
As explained above, subsection 18LF(2) is designed to limit the issue of
infringement notices to relatively recent alleged offences. However, the
time limit only begins to run from the day on which a trade measurement
inspector discovers the alleged contravention. This is to allow for cases
in which alleged offences can only be discovered some time after the
alleged offence is committed: for example where an inspector discovers a
breach of the Act when inspecting articles packed a long time ago and
stored in a warehouse for some years. Also, articles may be imported some
years after being packed. Accordingly, to have a fixed period, beginning at
the time of the alleged offence, could frustrate the operation of the Act.
Section 18LG Matters to be included in an infringement notice
Proposed section 18LG provides that an infringement notice must set out
certain details of the officer issuing the notice, the person it is given
to, and the alleged offence. The notice must also explain that criminal
proceedings will not be brought if the penalty specified in the notice is
paid within a certain time.
Section 18LG is designed to be consistent with the content requirements
specified in par 6.5 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Section 18LH Amount of penalty
Proposed section 18LH specifies that the penalty imposed by a notice must
be a pecuniary penalty equal to 5 penalty units (currently $550).
This rate of penalty is consistent with the requirements of par 6.3 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers.
Section 18LI Withdrawal of an infringement notice
Proposed section 18LI provides that an inspector may, by written notice,
withdraw an infringement notice within 28 days of issuing it. If the
penalty has already been paid under the notice, it must be refunded.
This provision is consistent with par 6.6 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18LJ What happens if a penalty is paid
Proposed section 18LJ provides that if a person pays a penalty imposed
under a penalty notice, and the notice is not withdrawn, the person's
liability for the alleged offence is discharged. Also, criminal proceedings
may not be brought against the person for the alleged contravention.
This is consistent with par 6.7 of A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.
Section 18LK Effect of this Division on criminal proceedings
Proposed section 18LK provides as follows.
. That Division 3 of Part VIII does not require infringement
notices to be issued. In other words, consistently with A
Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers, it is at the discretion of trade
measurement officers (acting consistently with the
requirements of the Division) whether or not to issue a
notice in a particular case.
. That Division 3 of Part VIII does not affect a person's
liability to have criminal proceedings brought against him or
her for alleged contraventions of the provisions mentioned in
section 18LF.
. That Division 3 of Part VIII does not limit a court's
discretion to determine the amount of a penalty imposed on a
person found to have breached the Act. This is consistent
with par 6.7 of A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers.
Division 4 - Additional enforcement options
Section 18LL Overview
Section 18LL highlights the key provisions in Division 4 of Part VIII, and
explains that the Division contains alternative means of ensuring
compliance with Parts IV, V, VI and VII of the Act.
Section 18LM Accepting undertakings
Proposed section 18LM will enable the Secretary to accept a written
undertaking from a person in connection with a matter relating to
compliance under Parts IV, V, VI and VII of the Act. A person may vary or
withdraw an undertaking at any time, but only with the consent of the
Secretary. This allows undertakings to be administered flexibly, yet with a
reasonable degree of certainty.
The willingness of persons to provide, and comply with, undertakings should
assist in administering the Act and reduce the need for more severe
sanctions to be applied to obtain compliance.
Section 18LN Enforcing undertakings
Proposed section 18LN provides that if the Secretary considers a person has
breached an undertaking, the Secretary may apply to the Federal Court of
Australia or the Federal Magistrates Court for a variety of orders
regarding the breach, including orders that the person comply with the
undertaking, disgorge any financial benefit from the breach, compensate
others harmed by the breach, and any other orders the court thinks
appropriate.
This section is designed to give practical effect to undertakings, so that
they may effectively operate as an alternative to the imposition of
penalties and other enforcement action under the Act, and to deter breaches
of undertakings.
Section 18LO Injunctions
Proposed section 18LO empowers the Federal Court of Australia or the
Federal Magistrates Court to, on the application of the Secretary, grant
injunctions preventing proposed or current breaches of the Act, subject to
certain conditions.
The section is designed to assist in preventing breaches of the Act and,
where they are occurring, to stop them.
Section 18LP Secretary may publicise offences
Proposed subsection 18LP(1) provides that the Secretary may publicise
breaches of Parts IV, V, VI or VII for which a person has been convicted.
This section is designed to strongly deter people from breaching the Act.
For example, a business's reputation may suffer severely if it is publicly
revealed to have breached the Act and charged too much for certain
articles.
Proposed subsection 18LP(2) confirms that the section does not limit the
Secretary's powers to publicise offences, prevent any anyone else from
doing so, or affect any obligation (however imposed) on anyone to publicise
an offence under the Act.
Section 18LQ Affected contracts are voidable
Proposed section 18LQ provides that if a person is a party to a contract,
dealing or other transaction and, in relation to the execution of that
contract, dealing or other transaction the person commits an offence
against Part IV, V, VI or VII, the contract, dealing or other transaction
is voidable at the option of the other party or parties to it.
This section is designed to help protect innocent parties to a contract,
dealing or other transaction against the consequences of a breach of the
Act by the other party or parties. The section is also designed to be
flexible in its application, so the innocent party can choose to continue
with the contract, dealing or other transaction. For example, if X Pty
Limited breaches Part IV, V, VI or VII of the Act in performing a contract
with Y Pty Limited, Y Pty Limited may choose to void the contract.
Alternatively, Y Pty Limited may choose to keep the contract on foot.
Part IX - Trade Measurement Inspectors
Division 1 - Overview of Part
Section 18M Overview
Proposed section 18M highlights the key elements of new Part IX of the Act.
Part IX is generally concerned with the appointment of trade measurement
inspectors, the entry, search and seizure powers those officers may
exercise, and limits on those powers. Reports 4/2000 and 12/2006 of the
Senate Standing Committee for the Scrutiny of Bills, as well as A Guide to
Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, were
considered in relation to these provisions.
Division 2 - Appointment of trade measurement inspectors and identity cards
Section 18MA Appointment of trade measurement inspectors
Proposed section 18MA provides for the appointment of trade measurement
inspectors. Subsection 18MA(1) confers power on the Secretary to appoint an
APS employee, an employee (whether or not an APS employee) of a
Commonwealth authority, or the holder of an office established under a law
of the Commonwealth to be a trade measurement inspector. As inspectors have
search and entry powers, the people eligible to be inspectors are limited
to Commonwealth employees.
Proposed subsection 18MA(2) provides that persons must not be appointed as
trade measurement inspectors unless they have the prescribed
qualifications. It is anticipated that the Regulations will require
qualifications of certificate IV in government investigation under the
Australian Qualifications Framework or equivalent qualifications in state
or territory administrations. A significant proportion of the state and
territory trade measurement inspectors, who will transfer to the
Commonwealth, already hold the certificate IV qualification. The National
Measurement Institute will also develop suitable training courses and
qualifications for inspectors.
Proposed subsections 18MA(3), (4) and (5) provide for regulations to create
different classes of inspectors, with different powers, functions and
duties, and for the Secretary to appoint inspectors to these different
classes. Proposed subsection 18(6) confers power on the Secretary to give
directions to inspectors. These provisions are designed to ensure that
appropriately qualified inspectors perform particular functions and remain
subject to the control of the Secretary.
Proposed subsection 18MA(7) provides that the Secretary must not appoint a
person to be an inspector unless satisfied the person has the appropriate
competencies. Proposed subsections 18MA(2) and (7) are designed to ensure
that inspectors are able to perform their duties effectively, and that only
people with the appropriate skills, experience and competency are
authorised to exercise the powers and perform the functions of inspectors.
This is consistent with par 9.2 of A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.
Section 18MB Identity Card
Subsection 18MB(1) requires the Secretary to issue an identity card to
trade measurement inspectors that incorporates certain details as to the
identity of the inspector and the class to which he or she is appointed, as
well as a recent photograph of the inspector. Subsection 18MB(2) provides
that a person commits an offence if he or she does not immediately return
his or her identity card after ceasing to be an inspector.
This section is designed to ensure that only properly appointed trade
measurement inspectors exercise the powers and perform the functions of
inspectors, that inspectors are readily identifiable, and that inspectors
only do things appropriate to the class to which they belong. It is also
designed to ensure inspectors are properly and easily identified. On this
point, see par 1.66 of report 4/2000 of the Senate Standing Committee for
the Scrutiny of Bills.
Section 18MC Evidentiary certificate
Proposed subsections 18MC(1) and (2) provide for certificates, signed by
the Secretary, that state that a person was a trade measurement inspector
of a particular class at a specified time. These certificates are
admissible in proceedings (including disciplinary action) as prima facie
evidence of the matters stated in them.
This section is designed to make it relatively easy to establish that a
person was an inspector at a particular time. Such an appointment is a
formal matter that is not likely to be in dispute. Paragraph 4.6 of A Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers
explains that evidentiary certificates are appropriate in such
circumstances.
Division 3 - Powers of trade measurement inspectors
Section 18MD Overview
Proposed section 18MD highlights the key elements of Division 3 of new Part
IX of the Act.
Section 18ME Monitoring powers
Proposed section 18ME confers monitoring powers on trade measurement
inspectors. Subsection 18ME(1) provides that a trade measurement inspector
may enter any business premises or inspect any business vehicle at any
reasonable time of day and exercise powers under section 18MG for the
purposes of:
. finding out whether Part IV, V, VI or VII has been complied
with; or
. finding whether a condition of a servicing licence (under
Part X) or a public weighbridge licence (under Part XI) has
been complied with; or
. finding out whether a condition of an appointment of a
utility meter verifier (under Part XIII) has been complied
with.
Proposed subsection 18ME(2) confers the same powers in relation to
residential premises. However, subsection 18ME(3) provides that the
inspector is not authorised to enter residential premises unless the
controller of those premises consents or a warrant has been issued.
Subsection 18ME(4) provides that, if entry is under consent, and consent is
withdrawn, the inspector must leave.
These monitoring powers are conferred on trade measurement inspectors so
that compliance with the Act may effectively monitored. The principles in
Chapters 8 and 9 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers were carefully considered when creating
the monitoring powers. In particular, the following things were taken into
account.
. There was extensive consultation between the National
Measurement Institute, the Attorney-General's Department and
the Australian Federal Police regarding the proposed
provisions, and these parties agreed to the provisions.
. Consideration was given to requiring warrants for the
exercise of all monitoring powers, but it was recognised this
would be impracticable. This is because of the extent,
diversity and geographical reach of trade measurement
inspection activities. These activities comprise tens of
thousands of visits to trading premises per annum throughout
all regions of Australia.
. The powers replicate long-established equivalent powers under
state and territory laws regarding trade measurement. This
means these powers are familiar to, and accepted by, traders.
. If these powers were not available, it would be difficult to
effectively monitor compliance with the Act. In particular,
if businesses had the power to refuse or delay entry to
inspectors, this could frustrate effective monitoring of
their compliance.
. It will not ordinarily be possible for inspectors to
determine whether or not a person is complying with the Act
until the inspector has access to that person's premises.
. These monitoring powers are only conferred on trade
measurement officers who are qualified to monitor compliance,
and who will be properly selected and trained to carry out
this role.
. In the case of residential premises, inspectors may be
refused entry.
. In the case of meter verifiers, and servicing and weighbridge
licensees, these people can be taken to have agreed to accept
entry onto their business premises for the purpose of
monitoring compliance with the Act under which they are being
accorded statutory privileges.
Subsection 18ME(5) provides that if an inspector is on residential premises
under a warrant issued under sections 18MZ or 18MZA for the purposes
described above, and believes on reasonable grounds that there is
evidential material on the premises, he or she may secure the material
pending obtaining a warrant to seize it. This is to ensure that evidence is
not destroyed before the inspector has an opportunity to seize it: if the
inspector had to obtain a warrant before securing the evidence, it is
possible that the proper operation of the Act would be frustrated.
Section 18MF Collecting evidential material
Proposed subsections 18MF(1) and (2) provide that, if a trade measurement
inspector has reasonable grounds for suspecting that there may be
evidential material on premises or in a business vehicle, her or she may:
. in the case of business premises or a business vehicle, enter
the premises or inspect the vehicle;
. in the case of residential premises, enter the premises with
the consent of the controller or under a warrant issued under
sections 18MZ or 18MZA; and
. exercise the powers set out in section 18MG in relation to
the premises or vehicle and seize any evidential material he
or she finds.
'Evidential material' is defined in proposed subsection 3(1).
Proposed subsections 18MF(3), (4) and (5) provide for an inspector to
operate equipment to see if evidential material is stored on a disk, tape
or other device, and to take steps to seize or reduce that material into a
written form.
Proposed subsection 18MF(6) provides that if, in the course of searching
for a particular thing, an inspector finds another thing he or she
reasonably suspects of being evidential material, and he or she believes on
reasonable grounds it is necessary to seize the thing in order to preserve
it, the inspector may seize the thing.
Proposed subsection 18MF(7) provides that, if the inspector is on
residential premises with the controller's consent, he or she must leave if
that consent is withdrawn.
Proposed section 18MF is designed to comply with the principles set out in
Chapters 8 and 9 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers. Details of the things taken into account
in creating the section are set out above in relation to proposed section
18ME.
Section 18MG General Powers of trade measurement inspectors
Proposed subparagraphs 18MG(1) (a) to (h) set out the powers that a trade
measurement inspector may exercise in finding out whether any breach of the
Act has occurred and collecting evidential material in business premises.
Proposed subparagraphs 18MG(2) (a) to (h) set out the equivalent powers
that a trade measurement inspector may exercise with respect to a business
vehicle.
These powers replicate the long-standing powers that state and territory
inspectors currently have under the Uniform Trade Measurement Legislation
(UTML). These powers are familiar to, and accepted, by traders. It is
necessary to replicate these powers for Commonwealth trade measurement
inspectors because of the extent, diversity and geographical reach of trade
measurement inspection activities. These activities comprise tens of
thousands of visits to trading premises per annum throughout all regions of
the country.
As explained earlier, the NMI has consulted extensively on this matter with
both the Attorney General's Department and the Australian Federal Police
(AFP). The use of warrants for all entry, search and seizure was considered
and rejected as impracticable. For a full explanation of the issues taken
into account when creating proposed section 18MG, see the discussion above
regarding proposed section 18ME.
The Bill does not provide for the use of force by trade measurement
inspectors. It is intended that the NMI would obtain police assistance if
necessary. Warrants will always be required for the search of residential
premises if consent is not given.
Proposed subsection 18MG(3) provides that the powers of an inspector extend
to the sampling and testing of packages to determine if they comply with
AQS or national requirements for articles packed in advance ready for sale.
Proposed subsections 18MG(4) and (5) provide for an inspector to exercise
the above powers with respect to an article or a package even though this
may result in damage to, reduction in value of, or destruction of an
article or package.
Proposed subsection 18MG(6) provides that a trade measurement inspector
must not be more destructive than is reasonable in exercising trade
measurement powers.
The issue of compensation of businesses for the loss of their property from
investigation activities has been considered. However, the extent of any
loss to the trader is likely to be small. For example, testing packages for
short measure is carried out by weighing the package. The sampling and
testing of breakfast cereal packages will require the destruction of one or
two packages to enable the weight of the packaging material to be measured.
This can then be tared off measurements of full packages so that the weight
of the contents of all packages in the sample can be determined. Throughout
the history of trade measurement in Australia there has never been any
compensation for the packages that have been destroyed for this purpose.
The trade measurement activity is a normal cost of doing business for
traders.
Investigation activity should not result in an acquisition of property for
the purposes of section 51(xxxi) of the Constitution, for which just terms
must be provided. Nevertheless proposed section 19N has been included in
the Bill to cover that eventuality, if it ever arises.
The policy intent of introducing some form of compensation would be to
assist small business. However, in most cases the cost of providing the
compensation would be many times the amount of the compensation. Where more
valuable product is being sampled every attempt is made to minimise cost to
business. For example, in the case of frozen prawns, the measurements are
taken when the product is being thawed and there is no loss to the owner.
An unintended consequence of introducing a provision for compensation may
be to convert currently good compliance behaviour from large businesses
into poor compliance behaviour. Accordingly the Bill does not include any
general provision for compensation.
Section 18MH - Trade measurement inspector may request persons to answer
questions or produce documents
Proposed subsection 18MH(1) empowers a trade measurement inspector who has
entered residential premises with consent to ask the controller to answer
questions and produce any book, record or document.
Proposed subsection 18MH(2) empowers a trade measurement inspector who was
authorised to enter business premises under section 18ME or 18MF, or to
enter residential premises under a warrant, to require any person in or on
the premises to answer questions and produce any book, record or document.
Proposed subsection 18MH(3) confers an essentially similar power in
relation to the controller of a business vehicle.
Proposed subsection 18MH(4) provides that a person commits an offence if he
or she refuses or fails to comply with a requirement under subsections
18MH(2) or (3), for which the penalty is 200 penalty units (currently
$22,000). Proposed subsection 18MH(5) creates an equivalent strict
liability offence, with a penalty of 40 penalty units (currently $4,400).
Both provisions are intended to deter people from refusing or failing to
comply with the section.
There is an exception (under subsection 18MH(6)) from the requirement to
answer a question or produce a document where to do so might tend to
incriminate a person. This is to protect a person's common law right not to
incriminate himself or herself. This provision is designed to be consistent
with the principles discussed in par 10.5 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18MI English translation of book, record or document requested by a
trade measurement inspector
Proposed subsections 18MI(1) and (2) provide that a trade measurement
inspector:
. may ask a person who has provided a book, record or document
under section 18MH(1); or
. require a person who has provided a book, record or document
under section 18MH(2) or (3),
to provide an English translation of the thing provided.
This provision is designed to assist with the efficient administration of
the Act.
Proposed subsection 18MI(3) provides it is an offence not to comply, for
which a penalty of 200 penalty units applies (currently $22,000). Proposed
subsection 18MI(4) creates an equivalent strict liability offence, with a
penalty of 40 penalty units (currently $4,400). Both provisions are
intended to deter people from refusing or failing to comply with the
section.
There is an exception (under subsection 18MI(6)) from the requirement to
translate a book, record or document where this might tend to incriminate a
person. This is to protect a person's common law right not to incriminate
himself or herself. This provision is designed to be consistent with the
principles discussed in par 10.5 of A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.
Section 18MJ Power to give directions in relation to re-verification
Proposed section 18MJ confers power on a trade measurement inspector to
give reasonable directions to a person in possession of a measuring
instrument to facilitate re-verification of the instrument. This is to
ensure that people comply with Division 2 of Part IV of the Act. Proposed
subsection 18MJ(3) provides that, if a person fails to comply with a
direction by a specified time, the instrument is taken not to be verified.
Section 18MK Power to verify measuring instruments on request
Proposed section 18MK provides that a trade measurement inspector may
verify a measurement instrument for the purposes of another Act or on
request, and may charge the prescribed fee for this.
Section 18ML Evidentiary certificate- examination and calibration under
section 18MK
Proposed section 18ML provides that a certificate signed by a trade
measurement inspector or servicing licensee that he or she has examined a
measuring instrument or tested its calibration under section 18MK, and
setting out the results of that examination and testing, is admissible in
any proceedings (including disciplinary proceedings) as prima facie
evidence of the matters stated in the certificate.
This section is designed to make it relatively easy to establish that
examination or testing have occurred and the results of that examination or
testing. These are technical matters that are not likely to be in dispute.
If the certificate were not admissible, it might be difficult to establish,
for example, that a particular instrument was properly calibrated at a
particular time. Paragraph 4.6 of A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers explains that evidentiary
certificates are appropriate in such circumstances.
Section 18MM Trade measurement inspector must obliterate verification mark
Proposed section 18MM requires a trade measurement inspector to obliterate
verification marks in certain circumstances. The section provides that a
trade measurement inspector must obliterate a verification mark if (in the
course of exercising powers or performing functions or duties) the
inspector becomes aware that:
. a measuring instrument bearing the mark no longer complies
with the requirements for verification set out in section
18GK when tested in accordance with national instrument test
procedures; or
. a measuring instrument bearing the mark is treated as one of
a batch under the national instrument test procedures, and
the batch no longer complies with the requirements for
verification set out in section 18GK when tested in
accordance with those procedures.
This provision is designed to help ensure that only properly verified
measuring instruments are marked as such.
Division 4 - Obligations of trade measurement inspectors
Section 18MN Trade measurement inspector must produce identity card on
request
Proposed section 18MN provides that a trade measurement inspector is not
entitled to exercise any of the powers under Division 3 if the controller
of the relevant premises or vehicle requires the inspector to produce his
or her identity card and the inspector fails to do so. This requirement is
designed to give effect to the principles set out in Part 9.2 of A Guide to
Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 18MO Details of warrant to be given to controller etc
Proposed section 18MO requires an inspector to produce a warrant to the
controller of residential premises or that person's representative when
executing the warrant, and must identify himself of herself to that person.
This requirement is designed to give effect to the principles set out in
Part 9.4 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.
Section 18MP Consent to enter residential premises
Proposed section 18MP requires a trade measurement inspector to inform a
controller of residential premises of his or her right to refuse to consent
to the inspector coming on to the premises. This is to ensure the
controller is properly informed of his or her right to refuse consent and
to ensure informed consent is freely given. This requirement is designed to
give effect to the principles set out in Part 9.3 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. On this
point, also see pars 1.37 to 1.39 of report 200/4 of the Senate Standing
Committee for the Scrutiny of Bills.
Section 18MQ Announcement on entry or inspection
Proposed section 18MQ provides that when a trade measurement inspector
enters business premises or residential premises, or inspects a business
vehicle without consent, the inspector must announce that he or she is
authorised to do so and give an opportunity to be allowed access to the
premises or vehicle. This provision is designed to give effect to the
principles in Part 9.4 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Section 18MR Compensation for damage to electronic equipment
Proposed section 18MR provides for compensation to owners of electronic
equipment that is damaged in the exercise of powers under section 18MF.
Section 18MS Copies of seized things to be provided
Proposed section 18MS provides that the where a trade measurement inspector
seizes documents, film, computer files, any other than that can be readily
copied, or a storage device from which information can be readily copied
from premises or a vehicle, the controller of the premises or vehicle can
require a copy of the thing seized. However, a controller cannot require a
copy of a print-out or copy made under paragraph 18MF(4)(b) or (c), or any
thing the possession of which is an offence.
This provision is designed to be consistent with the principles discussed
in par 9.9 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.
Section 18MT Receipt for things seized
Proposed section 18MT requires a trade measurement inspector to provide a
receipt for all things seized.
This provision is designed to be consistent with the principles discussed
in par 9.9 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.
Section 18MU Retention of seized things
Proposed section 18MU provides, subject to a court order to the contrary,
for return of seized items on the earlier of when the reason for seizure
ceases to exist or it is decided not to use the seized item in evidence, or
after 6 months, unless the item is forfeit or forfeitable to the
Commonwealth.
The section also requires the inspector to take reasonable steps after 6
months to arrange for this return, unless proceedings in the matter are
continuing, the inspector is authorised to keep the thing under section
18MV or the inspector is otherwise legally authorised to retain, destroy or
dispose of the thing. Return of items may be unconditional or on such terms
and conditions as the Secretary sees fit.
This provision is designed to be consistent with the principles discussed
in par 9.9 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers. A retention period of 6 months has been specified in
order to ensure that suspected breaches of the Act may be properly
investigated and dealt with. If it is decided that a seized item is not
needed for these purposes, the section requires it to be returned.
Section 18MV Magistrate may permit a thing to be retained
Proposed section 18MV provides that a trade measurement officer may apply
to a magistrate for extension of the period for which seized goods may be
retained. The section requires that a magistrate may only order an
extension if satisfied that it is necessary for the inspector to retain the
thing for the purpose of investigating whether an offence has been
committed or to enable evidence of an offence to be secured for a
prosecution. The section also requires the inspector to take reasonable
steps to notify interested parties of the application for extension.
The section is designed to balance the rights of parties with an interest
in seized items with the need to properly investigate and prosecute
suspected offences. To ensure proper accountability, the power to grant an
extension has been conferred on a third party not involved in the
investigation.
Division 5 - Controller's rights and responsibilities
Section 18MW Controller entitled to be present during search
Proposed section 18MW provides that the controller of premises or a
business vehicle (or person who apparently represents the controller) is
present when a search or inspection is conducted by a trade measurement
inspector, the controller is entitled to observe the search or inspection
being conducted. However, this right ceases if the person impedes the
search or inspection, and does not prevent two areas being searched at
once.
Section 18MX Controller must provide trade measurement inspector with
facilities and assistance
Proposed section 18MX provides that where an inspector enters premises or
inspects a business vehicle under compulsive powers (i.e. where the consent
of the controller is not required) the controller of the premises or
vehicle must provide the inspector, or any person assisting the inspector,
with all reasonable facilities and assistance for the effective execution
of the inspector's powers. Proposed subsection 18MX(3) provides that it is
an offence for a person to engage in conduct that contravenes these
requirements, for which the penalty is 30 penalty units (currently $3,300).
The section, including the penalty, is designed to be consistent with the
principles set out in Par 9.4 of A Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers.
Division 6 - Warrants
Section 18MY Overview
Proposed section 18MY outlines the key elements in Division 6 of Part IX of
the Act.
Section 18MZ Monitoring warrants
Proposed section 18MZ sets out a procedure under which a trade measurement
inspector may apply to a magistrate for a monitoring warrant in relation to
residential premises. The magistrate may issue a warrant if, satisfied by
information on oath or affirmation, that it is reasonably necessary that
one or more inspectors have access to the premises for: finding out whether
Parts IV, V, VI or VII has been complied with, finding out whether a
condition of a licence issued under Parts X or XI has been complied with,
or finding out whether a condition of an appointment of a meter verifier
under Part XIII has been complied with.
Subsection 18MZ(3) specifies that the magistrate must not issue the warrant
unless the inspector or some other person has given such further
information (if any) the magistrate requires concerning the grounds on
which the warrant is sought.
Subsection 18MZ(4) specifies that the warrant must:
. authorise one or more trade measurement inspectors
(whether named or not) to enter the premises and exercise the
powers set out in section 18MG in relation to the premises;
. state whether entry is only authorised at a particular
time or during specified hours;
. specify the day (not more than 6 months later) on which
the warrant ceases to have effect; and
. state the purpose for which the warrant was issued.
Proposed section 18MZ is designed to be consistent with the principles set
out in pars 9.7 and 9.11 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers. The section is also consistent with well-
established principles for the issue of monitoring warrants under
Commonwealth Acts. For a detailed description of the matters taken into
account, and consultation undertaken, when creating this and related
provisions, see the earlier discussion regarding sections 18ME and 18MG.
Section 18MZA Warrants relating to the collection of evidential material
Proposed section 18MZA sets out a procedure under which a trade measurement
inspector may apply to a magistrate for a warrant to seize evidential
material in residential premises. The magistrate may issue a warrant if
satisfied, by information on oath or affirmation, that there are reasonable
grounds for suspecting that there is, or may be within the next 72 hours,
evidential material in or on the premises.
Subsection 18MZA(3) specifies that the magistrate must not issue the
warrant unless the inspector or some other person has given such further
information (if any) the magistrate requires concerning the grounds on
which the warrant is sought.
Subsection 18MZA(4) specifies that the warrant must:
. name one or more trade measurement inspectors to enter the
premises, exercise the powers set out in sections 18MF and 18MG
in relation to the premises, and seize the evidential material;
. state whether entry is only authorised at a particular
time or during specified hours;
. specify the day (not more than 6 months later) on which
the warrant ceases to have effect; and
. state the purpose for which the warrant was issued.
Proposed section 18MZA is designed to be consistent with the principles set
out in pars 9.6 and 9.7 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers. For a detailed description of the matters
taken into account, and consultation undertaken, when creating this and
related provisions, see the earlier discussion regarding sections 18ME and
18MG.
Section 18MZB Urgent warrant for the collection of evidential material
Proposed section 18MZB provides that, in an urgent case, a trade
measurement inspector may obtain a warrant from a magistrate by telephone,
fax or other electronic means. The section generally requires the inspector
to provide the magistrate the same information required under section
18MZA, for the magistrate to consider this information in essentially the
same way as required by section 18MZA before issuing the warrant, and for
the warrant to contain the same information as required under section
18MZA. The section further requires the inspector to fill out and return a
form of warrant specified by the magistrate.
Proposed section 18MZB is designed to be consistent with the principles set
out in par 9.5 of A Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
Section 18MZC Powers conferred on magistrates in their personal capacity
Proposed section 18MZC specifies that powers conferred on a magistrate
under Part IX are conferred on the magistrate in his or her personal
capacity.
Powers to issue warrants have been conferred on magistrates to ensure that
warrants are issued with due rigour and independence. These powers have
been conferred on magistrates in their personal capacity in order to remove
the risk of a conflict between the exercise of the magistrate's judicial
functions and his or her non-judicial functions (such as issuing warrants).
Section 18MZC is designed to be consistent with the principles set out in
par 9.7 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.
Section 18MZD Immunity of magistrates
Proposed section 18MZD provides that a magistrate exercising a power
mentioned in subsection 18MZD(1) has the same protection and immunity as if
he or she were exercising that power as, or as a member of, the court. This
section is designed to ensure that, when making decisions regarding
warrants, magistrates act independently.
Part X Servicing licensees
Section 18N Overview
Proposed section 18N highlights the key elements of proposed Part X of the
Act.
Section 18NA Application for a servicing licence
Proposed section 18NA provides for people to apply to the Secretary for a
servicing licence, and requires application to be in the prescribed form,
contain prescribed material and for the prescribed application fee to be
paid. The section also empowers the Secretary to require further
information by notice.
Section 18NB Granting a licence
Proposed section 18NB provides that the Secretary must grant an application
for a licence unless there are grounds for refusal under the Act. The
section requires the Secretary to notify the applicant of the decision
within a certain time, to approve a mark for use by the licensee, and to
specify the period for which the licence is granted.
Sections 18NC, 18ND and 18NE Circumstances in which a licence must be
refused
Proposed section 18NC sets out the circumstances in which the Secretary
must refuse an application for a licence. Proposed sections 18ND and 18NE
respectively explain how certain provisions in section 18NC apply in
relation to a body corporate or a partnership.
Proposed section 18NC is designed to ensure that licences are only issued
to appropriate persons who are also competent and fit and proper.
Section 18NF Register of servicing licensees
Proposed section 18NF requires the Secretary to keep a register of
prescribed particulars relating to servicing licences.
Section 18NG Conditions may be imposed on servicing licences
Proposed section 18NG provides that the Secretary may impose conditions on
a servicing licence, provides for amendment and revocation of licences, and
notification of these matters. This provision is designed to ensure that
the Secretary has continuing power to regulate in detail the conditions on
which licences are held.
Section 18NH Conditions on all servicing licences
Proposed section 18NH sets out conditions that apply to all servicing
licences. These conditions are broadly intended to ensure that verification
of measuring instruments is only done by competent people, and that it is
done effectively and in a manner consistent with the requirements of the
Act.
Section 18NI Application to amend a condition of a servicing licence
Proposed section 18NI provides for a servicing licensee to apply to the
Secretary for amendment of a condition of a servicing licence imposed under
section 18NG.
Section 18NJ Application to change servicing licensee due to change of
partnership
Proposed section 18NJ provides for a partnership to apply to the Secretary
to amend the partnership's servicing licence to reflect a partner leaving
or joining the partnership.
Sections 18NK and 18NL Application for and renewal of servicing licences
Proposed section 18NK provides for applications to the Secretary to renew
servicing licences, and proposed section 18NL sets out when and how the
Secretary must grant an application for a renewed licence.
Section 18NM Surrender and transfer of servicing licences
Proposed section 18NM provides that a servicing licence may be surrendered,
but a licence is not be transferable.
Section 18NN Order preventing employment of certain persons
Under proposed section 18NN, the Secretary may, by order in writing,
stating the reasons, direct that a specified person is not to be employed
by a servicing licensee to verify any measuring instrument or a specified
class of measuring instruments; or that a specified person is to be
employed by a servicing licensee to verify any measuring instrument or
specified class of measuring instruments only in compliance with certain
conditions.
Subsection 18NN(2) provides that the Secretary must not make such an order
unless satisfied it is necessary to do so because of the person's lack of
competence or fitness to exercise the functions concerned.
Subsection 18NN(3) provides that the Secretary must serve a copy of the
order on the person to whom it relates and on each servicing licensee that
the Secretary knows is employing that person at the time the order is made.
Subsection 18NN(4) provides that it is a condition of a servicing licence
that the licensee must comply with such an order.
This provision is intended to ensure that people who are not fit or
competent to verify measuring instruments are prevented from being employed
to do so, or their employment in verifying instruments is appropriately
limited.
Section 18NO Offence - breaching a condition of a servicing licence
Proposed subsection 18NO(1) makes it an offence for a servicing licensee to
engage or fail to engage in conduct in breach of a condition of the
person's servicing licence.
Proposed subsection 18NO(2) provides that a servicing licensee commits an
offence if an employee of that licensee engages or fails to engage in
conduct in breach of a condition of the licensee's servicing licence.
Proposed subsection 18NO(3) provides that an employee of a servicing
licensee commits an offence if the employee engages or fails to engage in
conduct in breach of a condition of the licensee's servicing licence.
The penalty for each of these offences is 30 penalty units (currently
$3,300). Subsection 18NO(4) provides that the offences are offences of
strict liability. The note to this subsection refers to section 6.1 of the
Criminal Code, which explains the concept of strict liability.
These provisions are intended to deter people from breaching conditions of
servicing licences, and to encourage people to be vigilant in ensuring such
conditions are not breached, including encouraging licensees to properly
supervise the activities of their employees.
Part XI - Public weighbridges
Division 1 - Public weighbridge licences
Section 18P Overview
Proposed section 18P highlights the key elements of proposed Part XI of the
Act.
Section 18PA Application for a servicing licence
Proposed section 18PA provides for people to apply to the Secretary for a
public weighbridge licence for a single weighbridge, and requires
application to be in the prescribed form, contain prescribed material and
for the prescribed application fee to be paid. The section also empowers
the Secretary to require further information by notice.
Section 18PB Granting a licence
Proposed section 18PB provides that the Secretary must grant an application
for a public weighbridge licence for a single weighbridge, unless there are
grounds for refusal under the Act. The section requires the Secretary to
notify the applicant of the decision within a certain time and to specify
the period for which the licence is granted.
Sections 18PC, 18PD and 18PE Circumstances in which a licence must be
refused
Proposed section 18PC sets out the circumstances in which the Secretary
must refuse an application for a licence. Proposed sections 18PD and 18PE
respectively explain how certain provisions in section 18PC apply in
relation to a body corporate or a partnership.
Proposed section 18PC is designed to ensure that licences are only issued
to appropriate persons.
Section 18PF Register of servicing licensees
Proposed section 18PF requires the Secretary to keep a register of
prescribed particulars relating to public weighbridge licences.
Section 18PG Conditions may be imposed on public weighbridge licences
Proposed section 18PG provides that the Secretary may impose conditions on
a public weighbridge licence, provides for amendment and revocation of
licences, and notification of these matters. This provision is designed to
ensure that the Secretary has continuing power to regulate in detail the
conditions on which licences are held.
Section 18PH Conditions on all public weighbridge licences
Proposed section 18PH sets out conditions that apply to all public
weighbridge licences. These conditions are broadly intended to ensure that
public weighbridges are operated in the places specified in the relevant
licence, and are only operated by competent people in a manner consistent
with the requirements of the Act.
Section 18PI Application to amend a condition of a public weighbridge
licence
Proposed section 18PI provides for a public weighbridge licensee to apply
to the Secretary for amendment of a condition of a licence imposed under
section 18PG.
Section 18PJ Application to change public weighbridge licensee due to
change of partnership
Proposed section 18PJ provides for a partnership to apply to the Secretary
to amend the partnership's public weighbridge licence to reflect a partner
leaving or joining the partnership.
Section 18PK Application to contract out the operation of the public
weighbridge
Proposed section 18PK provides that if, during the term of a public
weighbridge licence, the licensee enters into, or proposes to enter into, a
contract with another person to operate the public weighbridge, the
licensee may apply to the Secretary to amend the licence to state the
person who will operate the weighbridge after the contract comes into
effect. The section sets out how the application must be made, and how the
Secretary must consider an application and notify his or her decision in
response to an application.
Sections 18PL and 18PM Renewal of public weighbridge licences
Proposed section 18PL provides for applications to the Secretary to renew
public weighbridge licences, and proposed section 18PM sets out when and
how the Secretary must consider and respond to an application for a renewed
licence.
Section 18PN Surrender and transfer of public weighbridge licences
Proposed section 18PN provides that a public weighbridge licence may be
surrendered, but a licence is not be transferable, subject to section 18PJ
(regarding an application to contract out the operation of a public
weighbridge).
Section 18PO Effect of relocation of a licensed public weighbridge
Proposed section 18PO provides that if a public weighbridge licensee moves
a weighbridge from the location at which it was inspected before it was
licensed to another location at the place stated in the licence, the
licence is taken to be surrendered under section 18PN.
This is designed to ensure that public weighbridges are properly inspected
before being operated by a licensee even if they are relocated within the
same premises.
Section 18PP If weighbridge no longer suitable for use as a public
weighbridge
Proposed section 18PP confers power on the Secretary to decide a licensed
public weighbridge is no longer suitable for use as a public weighbridge
and to revoke the relevant public weighbridge licence. The section also
sets out notice requirements in relation to proposed revocation and
provides for submissions from the licensee in relation to a proposed
revocation.
This provision is designed to help ensure that public weighbridges are only
licensed under the Act where they remain suitable for use as such, and that
affected licensees are given appropriate notice of a proposed revocation
and an opportunity to respond to it.
Section 18PQ Order preventing employment of certain persons
Under proposed subsection 18PQ(1), the Secretary may, by order in writing,
stating the reasons, direct that a specified person is not to be employed
by a public weighbridge licensee to perform duties relating to the
operation of a public weighbridge; or that a specified person is to be
employed by a servicing licensee to perform duties in relation to a public
weighbridge only in compliance with certain conditions.
Subsection 18PQ(2) provides that the Secretary must not make such an order
unless satisfied it is necessary to do so because of the person's lack of
competence or fitness to exercise the functions concerned.
Subsection 18PQ(3) sets out requirements for serving the order on the
person to whom it relates (if his or her whereabouts are known) and each
public weighbridge licensee that the Secretary knows is employing the
person when the order is made. The subsection further provides that an
order comes into effect on the last day on which it is served
Subsection 18PQ(4) provides that it is a condition of a public weighbridge
licence that the licensee must comply with such an order.
This provision is intended to ensure that people who are not fit or
competent to perform duties in relation to the operation of a public
weighbridge are prevented from being employed to do so, or their functions
are appropriately limited.
Section 18PR Order preventing contract with certain person to operate a
public weighbridge
Proposed subsection 18PR(1) provides that the Secretary may order a public
weighbridge licensee to terminate any contract with a specified person to
operate a public weighbridge, or that the licensee is to continue to
contract with a specified person to operate a public weighbridge only in
compliance with specified conditions.
Subsection 18PR(2) provides that the Secretary must not make such an order
unless satisfied it is necessary to do so because of the person's lack of
competence or fitness to exercise the functions concerned.
Subsection 18PR(3) provides that the Secretary must serve a copy of the
order on the person to whom it relates and each public weighbridge licensee
that the Secretary knows has contracted with the person when the order is
made. The subsection further provides that the order comes into force on
the last day on which it is served.
Subsection 18PR(4) provides that it is a condition of a public weighbridge
licence that the licensee must comply with such an order.
Subsection 18PR(5) provides that it is a condition of each contract with a
public weighbridge licensee that the licensee may vary or terminate the
contract if required to do so to comply with an order under section 18PR.
This is to ensure that licensees are not inhibited by the general law of
contract from complying with an order.
This provision is intended to ensure that people who are not fit or
competent to perform duties in relation to the operation of a public
weighbridge are prevented from entering into contracts to do so, or that
the operation of such contracts is appropriately limited.
Section 18PS Order preventing employee of a public weighbridge contractor
from operating a public weighbridge
Proposed section 18PS applies in relation to the employees of persons who
have contracted to operate a public weighbridge. Subsections 18PS(1), (2)
and (3) operate in relation to these persons in essentially the same manner
as subsections 18PQ(1), (2) and (3) operate in relation to the employees of
public weighbridge licensees, with appropriate changes to reflect context.
Subsection 18PS(4) makes it a condition of each public weighbridge licence
that the licensee must terminate a contract for the operation of the
weighbridge with any contractor who breaches an order under this section.
Subsection 18PS(5) makes it a condition of each contract for the operation
of a public weighbridge that the licensee may terminate the contract in
order to comply with subsection 18PS(4). This is to ensure that licensees
are not inhibited by the general law of contract from complying with the
requirements of this section.
This provision is intended to ensure that people who are not fit or
competent to perform duties in relation to the operation of a public
weighbridge are prevented from being employed by contractors to do so, or
that such employment is appropriately limited.
Division 2 - Offences in relation to public weighbridges
Section 18PT Offence-making a public weighbridge available as a public
weighbridge when not licensed etc.
Subsection 18PT(1) makes it an offence for a person to make a weighbridge
available as a public weighbridge if the person is not a public weighbridge
licensee, an employee of a public weighbridge licensee, or a person who has
contracted with a public weighbridge licensee to operate the weighbridge as
a public weighbridge (or an employee of such a person). The penalty for
this offence is 30 penalty units (currently $3,300).
Subsection 18PT(2) provides that this is an offence of strict liability.
The note to the section refers to section 6.1 of the Criminal Code, which
explains the concept of strict liability.
This provision is intended to deter people from operating a public
weighbridge when prohibited from doing so, and to be vigilant in ensuring
that they do not breach this prohibition.
Section 18PU Offence - breaching a condition of a public weighbridge
licence
Proposed subsection 18PU(1) provides that a person commits an offence if
the person is a public weighbridge licensee, and engages or fails to engage
in conduct, and the conduct or failure is in breach of a condition of the
person's public weighbridge licence.
Proposed subsection 18PU(2) provides that a public weighbridge licensee
commits an offence if an employee of that licensee engages or fails to
engage in conduct, the conduct or failure is in breach of a condition of
the licensee's licence, and the licensee expressly, tacitly or implicitly
authorises or permits the conduct or failure.
Proposed subsection 18PU(3) provides that a person commits an offence if he
or she is an employee of a public weighbridge licensee, and he or she
engages or fails to engage in conduct, and that conduct or failure is in
breach of a condition of the licensee's licence, and the conduct or failure
is not within the actual or apparent scope of the person's employment.
Proposed subsections 18PU(4), (5) and (6) create offences in relation to
persons who contract with public weighbridge licensees to operate a public
weighbridge, and the employees of such contractors. These offences operate
in essentially the same way as the offences created in relation to
licensees under subsections 18PU(1), (2) and (3), with appropriate changes
to reflect the different context.
The penalty for each of the offences provided for in subsections 18PU(1) to
(6) is 30 penalty units (currently $3,300). Subsection 18PU(7) provides
that each of these offences is an offence of strict liability. The note to
this subsection refers to section 6.1 of the Criminal Code, which explains
the concept of strict liability.
This provision is intended to deter people from breaching conditions of
public weighbridge licences, and to encourage people to be vigilant in
ensuring such conditions are not breached.
Part XII - Disciplinary action against servicing licensees and public
weighbridge licensees
Section 18Q Overview
Proposed section 18Q highlights the key elements of proposed Part XII of
the Act.
Section 18QA Grounds for disciplinary action
Proposed subsection 18QA(1) sets out the various grounds for disciplinary
action against a servicing licensee or a public weighbridge licensee. In
conjunction with the other provisions of Part XII, the section is designed
to ensure that licensees perform licensed functions properly, are competent
to do so, and are fit and proper persons to do so. The grounds for
disciplinary action are:
(a) the licensee has failed to comply with a provision of this Act,
or with a condition of the licence;
(b) the licensee has been found guilty of an offence involving
fraud or dishonesty;
(c) in the case of a servicing licensee-continuously, for a period
prescribed in the regulations, neither the licensee nor any
employee of the licensee is competent to perform the functions
and duties of a verifier;
(d) in the case of a public weighbridge licensee-continuously for a
period prescribed by the regulations, neither:
(i) the licensee; nor
(ii) an employee of the licensee; nor
(iii) a person who contracts with the licensee to operate the
weighbridge; nor
(iv) an employee of a person mentioned in subparagraph (iii);
has the competencies appropriate to operate the public
weighbridge;
(e) the activities to which the licence relates are being carried
on in a dishonest or unfair manner;
(f) the Secretary would be required by sections 18NC or 18PC to
refuse an application for a licence by the licensee (if the
licensee were not already licensed);
(g) the licensee has been refused a licence under this Act or an
earlier corresponding law;
(h) the licensee is the subject of disciplinary action under
section 18QC or under the equivalent provision of an earlier
corresponding law;
(i) the licensee is not, for any other reason, a fit and
proper person to continue to hold a licence.
Proposed subsection 18QA(2) deals with how subsection 18QA(1) applies in
relation to a licensee that is a partnership, and provides that a ground
exists in relation to the partnership if, any of the grounds set out in
paragraphs (a), (b), (f), (g), (h) and (i), exists in relation to one or
more of the members of the partnership; and in relation to the grounds
mentioned in paragraphs (c) and (d), neither the partners nor anyone else
mentioned in those paragraphs has the competencies mentioned in those
paragraphs.
Proposed subsection 18QA(3) provides that a ground for disciplinary action
under paragraph (1)(i) exists in relation to a licensee that is a body
corporate if it is exists in relation to a person concerned in the
management of the body corporate.
It is important, for the purposes of proposed paragraph 18QA(1)(c) that the
prescribed period be set out in regulations. This ensures that information
about the prescribed period is readily available, and that the duration of
that period may be relatively readily amended to prescribe a longer or
shorter period as industry practices and practical circumstances might
require. Par 4.2 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers was considered when framing this
provision.
Section 18QB Notice to licensee of grounds for disciplinary action
Proposed section 18QB deals with cases in which the Secretary suspects
there are grounds for disciplinary action. Subsection 18Q(1) provides that,
where the Secretary reasonably suspects that there are grounds for
disciplinary action against a licensee, the Secretary may serve a notice on
the licensee:
. giving full particulars of those grounds, including
particulars for the reasons for any general ground; and
. calling on the licensee to show cause within a reasonable
period specified in the notice why the Secretary should not
take disciplinary action against the licensee under
subsection 18QC.
Proposed subsection 18QB(2) provides that a licensee on whom a notice is
served may, within the period allowed by the notice, make a written
submission to the Secretary on the matters concerned.
Proposed section 18QB is designed to provide an affected licensee
information about possible grounds for disciplinary action against it and a
reasonable opportunity to respond.
Section 18QC Taking disciplinary action
Proposed subsection 18QC provides for the Secretary to take disciplinary
action against licensees. Subsection 18QC(1) provides that if, after
consideration of any submissions made by the licensee within the period
allowed, the Secretary is satisfied that grounds for disciplinary action
against a licensee have been established, the Secretary may:
. reprimand the licensee; or
. impose a condition on the licence; or
. suspend the licence for up to 12 months; or
. act under any two or more of the above paragraphs; or
. cancel the licence and disqualify the former licensee
permanently or for a specified period from holding a
licence.
Proposed subsection 18QC(2) provides that the Secretary may take
disciplinary action by notice given to the licensee.
Proposed subsection 18QC(3) provides that the notice takes effect: at the
end of the period for lodging an application for a review of the decision
by the Administrative Appeals Tribunal; and if such an application has been
made within that period - on determination or abandonment of the
application, unless the Tribunal orders otherwise.
Section 18QD Accepting undertakings
Proposed subsection 18QD(1) provides that the Secretary, may, either
instead of or in addition to taking disciplinary action under section 18QC,
accept a written undertaking given by the licensee. Subsection 18QD(2)
provides that the licensee may vary or withdraw the undertaking at any
time, but only with the consent of the Secretary.
The willingness of persons to provide, and comply with, undertakings will
assist in dealing with cases where grounds for disciplinary action might
arise, and, where appropriate, reduce the need for more severe sanctions to
be applied to obtain compliance.
Section 18QE Enforcing undertakings
Proposed subsection 18QE(1) provides that, if a licensee who gave an
undertaking under subsection 18QD has breached a term of the undertaking,
the Secretary may apply to the Federal Court of Australia or the Federal
Magistrates Court for an order under subsection 18QE(2).
Proposed subsection 18QE(2) provides that, if the court is satisfied that
the licensee has breached a term of the undertaking, the court may make one
or more of the following orders:
. an order that the licensee comply with that term of the
undertaking;
. an order directing the licensee to pay the Commonwealth an
amount up to the amount of any financial benefit that the
licensee has obtained directly or indirectly and that is
reasonably attributable to the breach;
. any order that the court considers appropriate directing
the person to compensate any other person who has suffered
loss or damage as a result of the breach;
. any other order that the court considers appropriate.
Section 18QF Secretary may publicise grounds on which disciplinary action
taken, etc.
Proposed subsection 18QF(1) provides that the Secretary may publicise, in
any way he or she thinks appropriate, the grounds on which disciplinary
action is taken against a licensee, and the disciplinary action taken. This
provision is designed to strongly deter licensees from doing things that
might provide a ground for disciplinary action, and to encourage them to be
vigilant in ensuring that a ground for disciplinary action does not arise.
For example, a servicing licensee's reputation may suffer severely if it is
publicly revealed not to be a person competent to perform the functions and
duties of a verifier for a specified period.
Proposed subsection 18QF(2) confirms that the section does not limit the
Secretary's powers to publicise the relevant details, prevent anyone else
from doing so, or affect any obligation (however imposed) on anyone to
publicise those details.
Part XIII - Utility meter verifiers
The requirements for verifiers of utility meters are significantly
different to those for trade measuring instrument verifiers, including the
requirement for third party accreditation (by the National Association of
Testing Authorities), and are dealt with separately in this Bill. With the
repeal of Part VA of the Act (by item 63 of the Bill) it is necessary to
include a new part to specify the requirements for utility meter verifiers.
Accordingly this part is included to specify those requirements.
Note that according to subsection 4A(3) of the National Measurement Act
1960, utility meter verifiers only carry out initial verifications of
utility meters and do not reverify utility meters. Reverification remains
the responsibility of state and territory Governments.
Division 1 - Appointment of utility meter verifiers on application
Section 18R Applying to be a utility meter verifier
A person must apply for an appointment to be a utility meter verifier
before an appointment can be made. This section provides for an application
to be made in a form approved by the Secretary, and given to the Secretary.
Section 18RA Appointment of utility meter verifiers
Proposed section 18RA provides for the Secretary to appoint applicants as
utility meter verifiers and requires the Secretary to specify the class or
classes of utility meters for which the appointment is made. An appointment
made under this section is subject to the conditions set out in paragraphs
18RB(a) to(g) and any other conditions that the Secretary imposes.
Subsection 18RA(4) provides that the Secretary may impose an additional
condition or may vary or revoke a condition at any time. Subsection 18RA(5)
provides that the Secretary must consult with the utility meter verifier
before taking action under subsection 18RA(4), except when taking
disciplinary action under section 18RG.
Section 18RB Conditions on appointment of utility meter verifiers
Proposed section 18RB sets out the general conditions that an applicant
must meet before an appointment as a utility meter verifier can be made.
These conditions are designed to ensure that verifiers are properly
qualified and competent to perform their functions, and that the Secretary
may appropriately monitor their performance.
Section 18RC Secretary must allocate utility meter verifier's mark
Proposed section 18RC provides that when the Secretary appoints a utility
meter verifier, the Secretary must allocate marks for the appointed
verifier and a separate mark for each employee of the verifier who
undertakes utility meter verification.
Division 2-Disciplinary action against utility meter verifiers appointed on
application
Section 18RD Notice to utility meter verifier of intention to take
disciplinary action
Proposed section 18RD provides that if the Secretary is of the opinion that
there may be grounds for taking disciplinary action under section 18RG
against a utility meter verifier appointed under section 18RA, the
Secretary must give the verifier written notice of the Secretary's opinion,
specifying the reasons for that opinion, and invite the verifier to make a
written submission to the Secretary within 14 days. This provision is
designed to ensure verifiers are given reasonable notice of suspected
grounds for disciplinary action and an opportunity to respond.
Section 18RE Secretary may seek further information
Proposed section 18RE provides that the Secretary may ask in writing for a
utility meter verifier to provide further information for the purpose of
making a decision under section 18RG. This is so that the Secretary has
sufficient power to investigate suspected grounds for disciplinary action.
Section 18RF Secretary must consider verifier's submission and information
in making a decision under section 18RG
Proposed section 18RF provides that, in making a decision under section
18RG, the Secretary must have regard to matters raised in the verifier's
submission (if any) and any information received under section 18RE.
Section 18RG Taking of disciplinary action against a utility meter verifier
Proposed subsection 18RG(1) provides that, if the Secretary is satisfied
that a utility meter verifier has breached a condition of appointment, the
Secretary may decide to take any or all of the actions listed in this
subsection.
Subsection 18RG(2) provides that an action (under subsection 18RG(1)) to
vary or revoke a condition, impose a further condition, or revoke a utility
meter verifier's appointment takes effect on a day specified in writing by
the Secretary.
Subsection 18RG(3) provides that the Secretary must give written notice of
a decision under this section, including the reasons for it, to the
affected utility meter verifier.
Subsection 18RG(4) provides that the day specified by the Secretary under
subsection (2) must not be earlier than the seventh day after the day on
which written notice of the Secretary's decision is given to the utility
meter verifier. This is so that the verifier has reasonable notice of the
Secretary's decision before it takes effect.
Division 3-Appointing Commonwealth or State officials etc. as utility meter
verifiers
Section 18RH Appointment of Commonwealth or State officials etc. as utility
meter verifiers
Proposed subsection 18RH(1) provides that the Secretary may, in writing,
appoint one or more of the following persons to be utility meter verifiers:
. an APS employee (whether or not in the Department);
. a Commonwealth authority;
. an employee (whether or not an APS employee) of a
Commonwealth authority;
. the holder of an office established by or under a law of
the Commonwealth;
. a body corporate established for a public purpose by or
under a law of a State or Territory;
. a State or Territory officer.
However, subsection 18RH(2) provides that the Secretary may only appoint a
body corporate established for public purpose under a law of a State or
Territory, or a State or Territory officer, as a verifier if the State or
Territory concerned agrees with the appointment.
Subsection 18RH(3) provides that an appointment under this section must
specify the class or classes of utility meters that the appointed verifier
may verify and the period of the appointment.
Subsection 18RH(4) provides that an appointment is subject to conditions
imposed by the Secretary, and subsection 18RH(5) provides that the
Secretary may impose a condition at the time of appointment of after the
appointment is made.
Section 18RI Secretary must allocate verification marks to utility meter
verifiers appointed under section 18RH
Proposed section 18RI provides that, when the Secretary appoints a utility
meter verifier under section 18RH, the Secretary must allocate marks for
use by the verifier (if the verifier will be personally undertaking
verification) or a separate mark for each employee (if any) who undertakes
verifications.
Item 66 Part VI (heading repealed)
This heading is repealed and the following is substituted.
Part XIV Miscellaneous
Item 67 Paragraph 19A(1)(d)
This is a technical amendment to clarify the prima facie nature of evidence
contained in certificates of approval and verification of patterns of
measuring instruments. This amendment is consistent with par 4.6 of A Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
Item 68 Subsection 19A(6)
This subsection is repealed because, with the transition of trade
measurement functions to the Commonwealth, it will no longer be necessary
to consult with the states and territories as was previously necessary
under the agreement signed between the Commonwealth and states and
territories in 1990.
Item 69 At the end of section 19A
This amendment is to clarify the Chief Metrologist's ability to charge fees
for pattern approval activities.
Item 70 Paragraph 19AAA(1)(a)
The affect of this amendment is to remove a former paragraph 19AAA(1)(a)(2)
which referred to a corresponding law of the states and territories for
appropriate limits of errors for measuring instruments, as these laws are
now superseded.
Item 71 Subsection 19AAB(3)
This subsection is repealed because with the transition of trade
measurement functions to the Commonwealth, it will no longer be necessary
to consult with the states and territories as was previously necessary
under the agreement signed between the Commonwealth and states and
territories in 1990.
Item 72 After section 19B
After section 19B, sections 19C to 19P are inserted.
Section 19C Offences committed by employees - liability of employees
Proposed section 19C provides that an employee is not criminally
responsible for an offence under provision of Part IV, V, VI or VII if he
or she commits a physical element of the offence, acting within the actual
or apparent scope of his or her employment. This reflects the fact that the
employer (rather than an employee) is the party best able to control the
proper use of measuring instruments in a workplace, and to control the
scope of an employee's activities, so as to minimise the risk of breaches
of the Act. The provision is designed to be consistent with the principles
of collective responsibility in Part 4.6 of A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.
Section 19D Offences committed by employer - liability of employer
Proposed section 19D provides that an employer (other than a body
corporate) is responsible where one of its employees, acting within the
actual or apparent scope of his or her employment, and with the express,
tacit or implied authority or permission of the employer, commits an
offence under a provision of Part IV, V, VI or VII. This reflects the fact
that the employer (rather than an employee) is the party best able to
control the proper use of measuring instruments in a workplace, to control
the scope of an employees' activities so as to minimise the risk of
breaches of the Act, and to further direct or limit the employee so as not
commit any offences. The section is also designed to encourage employers to
be vigilant in supervising employees, so as to minimise potential breaches
of the Act. The provision is designed to be consistent with the principles
of collective responsibility in Part 4.6 of A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.
Section 19E Offences committed by agents - liability of agent
Proposed section 19E provides that where an agent, acting within the actual
or apparent scope of his or her authority, commits a physical element of an
offence under a provision of Part IV, V, VI or VII, her or she is not
criminally responsible for the offence. This reflects the fact that when a
principal sets the scope of an agent's authority, the principal is the
person best placed to limit that authority so as to protect against
potential breaches of the Act. The principles set out in Part 4.6 of A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers were considered in relation to this provision.
Section 19F Offences committed by agents - liability of principal
Proposed section 19F provides that where an agent of a principal (other
than a body corporate), acting within the actual or apparent scope of his
or her authority, commits an offence against a provision of Part IV, V, VI
or VII, liability must also be attributed to the principal. This reflects
the fact that when a principal sets the scope of an agent's authority, the
principal is the person best placed to limit that authority so as to
protect against potential breaches of the Act, and to further direct or
limit the agent so as not to commit any offences. The principles set out in
Part 4.6 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers were considered in relation to this provision.
Section 19G Offence committed by a body corporate - liability of directors
etc
Proposed section 19G provides that a director, and certain senior
employees, agents and officers of a body corporate, are to be regarded as
responsible for an offence committed by that body corporate under the Act.
This reflects the fact that these people are the people best placed to
control the activities of a body corporate so as to ensure that it does not
commit an offence under the Act. The section is also designed to encourage
these people to be vigilant in ensuring that the bodies corporate for which
they are responsible are administered so as to comply properly with the
Act. The principles set out in Part 4.6 of A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers were considered in
relation to this provision.
Section 19H Protected information
Proposed section 19H is intended to ensure that certain information
obtained by officials for the purposes of the Act is properly protected
from unauthorised disclosure. Subsection 19H(1) specifies that the section
applies to: a person who is or has been a trade measurement inspector, a
person who is or has been employed or engaged by the Department, or a
person who is performing, or has performed, functions or duties under the
Act.
Subsection 19H(2) creates an offence if one of the people specified in
subsection (1) obtains protected information and does any of the following:
copies or makes records of the protected information, uses the protected
information, or discloses the protected information to any person. The
penalty for this offence is imprisonment for 2 years.
Subsection 19H(3) specifies the circumstances in which subsection (2) does
not apply. Generally, these circumstances are where the person uses the
information for a lawful purpose or the purposes of the Act.
Subsection 19H(4) protects protected information from compulsory disclosure
to a court, except for the purposes of the Act.
Subsection 19H(5) defines "court", "personal information" and "protected
information".
This section is designed to ensure that information obtained under the Act
is properly protected and only used for purposes authorised by the Act.
Section 19J Review of Administrative Appeals Tribunal of decisions under
this Act
Proposed section 19J sets out the decisions made under the Act that can be
subject to merits review by the Administrative Appeals Tribunal.
Section 19K Jurisdiction of the Federal Court of Australia and the Federal
Magistrates Court
Proposed section 19K confers jurisdiction on the Federal Court of Australia
and the Federal Magistrates Court in respect of matters arising under
sections 18LN, 18LO and 18QE. The Federal Court of Australia has
jurisdiction in respect of matters arising under section 18MQ.
Section 19L Fees recoverable as a debt due to the Commonwealth
Proposed section 19L provides that a fee payable under the Act may be
recovered as a debt due to the Commonwealth, in order to facilitate
recovery of fees.
Section 19M Rights may be amended, suspended or cancelled etc.
Proposed section 19M confirms that certain rights granted under the Act are
granted on the basis that they may be cancelled, revoked, terminated,
amended or suspended, as provided for in the sections referred to here. The
section also confirms that no compensation is payable if a right is
cancelled, revoked, terminated or amended. This is consistent with these
rights being statutory rights that are susceptible to amendment, revocation
or cancellation.
Subsection 19M(2) provides the meaning of right in this section to mean
including anything that is property within the meaning of paragraph
51(xxxi) of the Constitution.
Section 19N Compensation for acquisition of property
Proposed section 19N provides that, if the Act operates to acquire property
from a person otherwise than on just terms, the Commonwealth is liable to
pay a reasonable amount of compensation to the person. This is to ensure
that the Act meets the requirement to provide just terms under section
51(xxxi) of the Constitution.
Section 19P Evidentiary matters-signature of Secretary or trade measurement
inspector
This section provides that a document purporting to be signed by the
Secretary or a trade measurement inspector is taken to be signed by that
person unless the contrary is established.
Items 73 and 75 Paragraph 20(1)(a) and (e)
These are technical amendments to confirm the prima facie nature of the
evidence mentioned in the provisions.
Item 74 After paragraph 20(1)(a)
This is to confirm that regulations may be made providing for the
provision, maintenance, custody and care of standards of measurement.
Item 76 Paragraph 20(1)(f)
This is a consequential amendment as a result of the repeal of Part VA and
the insertion of Part IV.
Item 77 Paragraph 20(1)(g)
This paragraph is inserted in order to omit words that are no longer
appropriate because of the introduction of Part IV.
Item 78 Paragraph 20(1)(i)
This is consequential to the repeal of old Part VA. In the new law
verifying authorities are now referred to as utility meter verifiers.
Item 79 Paragraph 20(1)(j)
With the amendment of the Act to introduce a national system of trade
measurement, this paragraph is generalised to apply to all types of
measuring instruments used for trade rather than only utility meters.
Item 80 After paragraph 20(1)(j)
These provisions are inserted to ensure that regulations may be made
regarding a number of matters previously dealt with in regulations under
the earlier corresponding laws. This is so that the amended Act may be
properly administered, consistent with the requirements of a national
system of trade measurement.
Item 81 Paragraph 20(1)(k)
This paragraph removes the previous regulation making power for units of
measurement for the sale of quantity of gas, electricity or water. This is
adequately provided for by sections 7, 7A and 7B of the Act. The paragraph
inserts a Regulations making power for prescribing fees for applications
for appointment as a licensee or authority.
Item 82 Subparagraph 20(1)(l)(ii)
This paragraph removes the previous reference to verification of utility
meters and inserts a Regulations making power for prescribing fees for the
verification of measuring instruments used for trade.
Item 83 At the end of paragraph 20(1)(l)
At the end of paragraph 20(1)(l), paragraph (iii) is inserted to provide a
Regulations making power for prescribing a fee for the issue of a
certificate in relation to the verification of a measuring instrument used
for trade and in addition, a new paragraph (iv) is added for prescribing a
fee for the issue of a permit for a packed article under Division 5 of Part
VI.
Item 84 At the end of subsection 20(1)
At the end of Subsection 20(1) additional Regulation making powers are
provided for the following:
(1) prescribing appropriate limits of error for a measuring
instrument for the purposes of the definition of measuring
instrument gives an inaccurate measurement; and
(2) prescribing the re-verification period for a class of measuring
instrument; and
(3) prescribing AQS marks; and
(4) prescribing AQS thresholds for the purposes of Subdivision 3-C
of Division 3 of Part VI; and
(5) prescribing AQS sampling procedures for the purposes of
Subdivision 3-C of Division 3 of Part VI; and
(6) prescribing AQS test procedures for the purposes of
Subdivision 3-C of Division 3 of Part VI; and
(7) prescribing the circumstances in which a group of packages is
taken to have failed testing in accordance with AQS test
procedures; and
(8) prescribing national sampling procedures for the purposes of
Subdivision 4-B of Division 4 of Part VI; and
(9) prescribing national group test procedures for the purposes of
Subdivision 4-B of Division 4 of Part VI; and
(10) prescribing national single article test procedures for the
purposes of Subdivision 4-B of Division 4 of Part VI; and
(11) prescribing national test thresholds for the purposes of
Subdivision 4-B of Division 4 of Part VI; and
(12) prescribing the circumstances in which a group of packages is
taken to have failed testing in accordance with national group
test procedures; and
(13) prescribing the circumstances in which a package is taken to
have failed testing in accordance with national single article
test procedures; and
(14) provide for the issue of infringement notices that specify
penalties of no more than 5 penalty units for specified
offences against the regulations.
Item 85 Subsection 20(3)
Subsection 20(3) is repealed and a new subsection is substituted to clarify
that a fee mentioned in subsection (1) of section 20 must not be such as to
amount to taxation.
Schedule 2 - Application and transitional provisions
Part 1 - Preliminary
Item 1 Definitions
This item provides definitions for use in this schedule and provides that
other expressions used in the schedule have the same meaning as in the
National Measurement Act 1960 as amended by Schedule 1.
Part 2 - General application provisions
Item 2 Application of Part IV of new law
This item specifies that Part IV of the new law applies to the verification
of utility meters and conduct relating to utility meters on, or after the
commencing day. This is necessary because Part VA that previously contained
provisions for utility meters will be repealed on the commencing day.
The item specifies that the new law applies to the verification of any
other type of measuring instrument and conduct relating to any other type
of measuring instrument on or after the transition day.
Item 3 Application of Parts V, VI and VII of new law
This item provides that Parts V,VI and VII of the new law apply to conduct
occurring on or after the transition day, apart from the application of
section 18HH to utility meters that applies on or after the commencing day.
Section 18HH provides a regulation making power to prescribe measuring
instruments and methods of measurement used to monitor compliance with the
new law. This is necessary because Part VA that previously contained such
provisions for utility meters will be repealed on the commencing day.
The item also provides that sections 18JX and 18JY of the new law relating
to permits for packed articles and paragraphs 18HF(2)(b) and (c) of the new
law relating to contracts concerning unreliable methods of measurement
apply on or after the transition day.
Item 4 Application of section 18LE of new law
This item provides that section 18LE of the new law relating to evidence of
matters relating the articles packed in advance ready for sale applies on
or after the transition day.
Item 5 Application of 18LQ, 18PR and 18PS of new law.
This item provides that sections 18LQ, 18PR(5) and 18PS(5) apply to
contracts entered into on or after the transition day. This is necessary to
make the application of the these provisions coincide with the application
of the offence provisions of the Bill and not impinge on contracts entered
into under state and territory corresponding laws.
Item 6 Licenses granted under Part X of new law
This item provides that a servicing license issued under section 18NB prior
to the transition day does not come into affect until the transition day or
a later day specified in the notice given to an applicant.
Item 7 Licences granted under Part XI of new law
This item provides that a public weighbridge license issued under section
18PB prior to the transition day does not come into affect until the
transition day or a later day specified in the notice given to an applicant
Part 3 -Marks and verification generally
Item 8 Continued recognition of existing verification and
certification marks
This item provides that where a measuring instrument has been marked
(verified or certified) under an earlier corresponding law and the mark is
present immediately before the transition day, then the measuring
instrument remains verified under the new law.
Subsection (3) provides that where a reverification period is prescribed
under paragraph 18GG(1)(b) of the new law, the reverification period is
taken to have started on the day when the instrument was last marked with
an inspector's or licensee's mark under the earlier corresponding law and
ceases at the end of the verification period unless reverified before that
day.
Subsection (4) provides that where a reverification period under 18GG(1)(b)
ends before the transition day the verification is taken not to have ceased
for a period of one month from the transition day.
Item 9 Continued use of existing licensee's mark
The purpose of this item is to provide continuity of existing licensee's
marks that were valid immediately before the transition day under an
earlier corresponding law, by recognising the old mark as a servicing
licensee's mark approved by the Secretary under paragraph 18NB(4)(a) of the
new law.
This item also provide that the old mark is valid for period of 12 months
after the transition day unless the licence is suspended or cancelled under
18QC or a new mark is issued under the new law.
Part 4 Permits
Item 10 Permits in relation to compulsory product information
This item refers to permits issued for the sale or possession, offer or
exposure for the sale of certain articles that do not include required
information on the package, for example incorrectly marked information
about the name and address of the person who packed the article.
The purpose of this item is to provide continuity of old permits issued to
a person under an earlier corresponding law that are valid under an earlier
corresponding law immediately before the transition day. The old permit
retains effect beginning from the transition day until the old permit would
have expired under the earlier corresponding law or for a period of 6
months, whichever is the shorter.
Paragraph (3) of this item identifies the subsections of earlier
corresponding law that define the compulsory product information for which
the old permit applies.
Item 11 Permits in relation to prohibited expressions
This item refers to permits issued for the sale or possession, offer or
exposure for the sale of certain articles marked with a prohibited
expression on the package, for example net mass when packed or net mass at
standard condition or the expressions jumbo, giant and large where directly
related to the measurement marking.
The purpose of this item is to provide continuity of old permits issued to
a person under an earlier corresponding law that are valid under an earlier
corresponding law immediately before the transition day. The old permit
retains effect beginning from the transition day until the old permit would
have expired under the earlier corresponding law or for a period of 6
months, whichever is the shorter.
Paragraph (3) of this item identifies the subsections of earlier
corresponding law that define the prohibited expressions for which the old
permit applies.
Part 5 Servicing licenses and pubic weighbridge licenses
Item 12 Servicing licences and public weighbridge licences continue in
force
Paragraphs (1) and (2) of this item provide that servicing licences and
public weighbridge licences issued under an earlier corresponding law prior
to the transition day are taken to be licences issued under 18NB for
servicing licences and 18PB for public weighbridge licences under the new
law.
Paragraph (3) provides that conditions applying to licences under the
earlier corresponding law continue in force as if it were a condition of a
new licence under 18NG for a servicing licence and 18PG for a public
weighbridge licence.
Paragraph (4) provides that to the extent where there are any
inconsistencies in conditions of an existing licence issued under an
earlier corresponding law, with new conditions in the new law, the
conditions in the new law will prevail.
Paragraph (5) provides for the imposition, variation or revocation of a
condition on a new licence under the new law, on or after the transition
day.
Paragraph (6) provides that where a licence was issued under an earlier
corresponding law and was subject to a periodic licence fee, the new
licence continues until the day on which the next periodic licence fee was
payable or the new licence is cancelled under the new law.
Paragraph (7) provides that the Secretary must approve in writing the marks
used by the servicing licensees and their employees when verifying
measuring instruments.
Paragraph (8) provides that where an old licence has been suspended under
an earlier corresponding law immediately before the transition day, the new
licence is taken to be suspended for the period ending, on the day the
suspension would have ended, under the earlier corresponding law.
Paragraph (9) of this item identifies the subsections of earlier
corresponding laws that identify the periodic licence fee provisions.
Item 13 Transitional provisions-public weighbridge no longer suitable
for use
This item provides that where a pubic weighbridge licensee has been served
with a notice under an earlier corresponding law that the weighbridge is no
longer suitable for use as a public weighbridge, and has been given the
opportunity to make a written representation as to why the licence should
not be cancelled, and the period for a written representation has not
expired before the transition day, then the notice is taken to be a notice
under 18PP of the new law and the person may make a written representation
to the Secretary within 14 days beginning at the start of the transition
day stating reasons why the licence should not be cancelled.
This item also provides that on receipt of the written submission within
the specified period, the Secretary may make a decision on whether to
cancel the licence in accordance with section 18PP.
Item 14 Order preventing employment of certain persons
Paragraph (1)(a) of this item provides that where an old order has been
served on a person under an earlier corresponding law preventing the
employment of that person from certifying any measuring instrument or
classes of measuring instrument or to comply with certain conditions under
the old order , that order is taken to be an order made under 18NN of the
new law.
Paragraph (1)(b) of this item provides that where an old order has been
served on a person under an earlier corresponding law preventing the
employment of that person from performing the duties relating to the
operation of a public weighbridge or to comply with certain conditions
under the old order, the order is taken to be an order made under 18PQ of
the new law.
Paragraphs (2) and (3) of this item also provide that an old order that has
not been served on a servicing licensee or public weighbridge licensee or a
person to whom such orders are required to be served, must be served as if
it were an order made under subsections18NN(3) or 18PQ(3) of the new law.
Nothing in these paragraphs or in subsections 18NN(3) or 18PQ(3) affects
the validity of any old orders that continue to exist under force of
subitem (1)
Paragraph (4) of this item identifies the subsections of earlier
corresponding laws that identify the employment prevention order
provisions.
Item 15 Proceeding under new law if disciplinary action not yet
commenced
This item provides that where no written notice has been served in relation
to disciplinary action and the Secretary reasonably suspects that there
were grounds for disciplinary action under an earlier corresponding law in
relation to a servicing licence or a public weighbridge licence immediately
before the transition day, the suspected grounds for disciplinary action in
relation to the old licence are taken to be grounds for disciplinary action
on or after the transition day under the new law.
The item also provides that on or after the transition day the Secretary
may serve an order under 18QB of the new law and take disciplinary action
in accordance with Part XII of the new law.
Item 16 Proceeding under earlier corresponding law if disciplinary
action commenced
This item provides that where a disciplinary action under an earlier
corresponding law has commenced in relation to a servicing licence or a
public weighbridge licence held by a person under that law and the
disciplinary action had not ended or been discontinued immediately before
the transition day, this Act does not affect the continuation or conclusion
of this action.
Where the disciplinary action to be taken involves the imposition of a
condition, suspension of a licence or the cancellation of a licence, the
disciplinary action is taken in relation to the licence the person is taken
to hold under item 13 of Schedule 2.
Where the disciplinary action involves a temporary or permanent
disqualification of a person from holding a licence, the disqualification
is in relation to a servicing licence or public weighbridge licence under
the new law.
Item 17 Disqualification continues in force
The purpose of this item is to provide continuity of disqualifications of
people from holding a servicing or public weighbridge licence. Where, under
an old corresponding law, a person was disqualified from holding a
servicing or a public weighbridge licence prior to the transition day, this
item provides that the person is taken to be disqualified under paragraph
18QC(1)(e) of the new law.
If the disqualification under the old law was permanent, then the
disqualification under the new law is also permanent. If the
disqualification under the old law was for a specified period, then the
disqualification under the new law will continue until the time it would
have ended under the old law.
Part 6-Utility meters
With the repeal Part VA of the National Measurement Act 1960 on the
commencement day it is necessary to provide continuity with respect to the
verification of utility meters from that time into the future.
Item 18 Continued recognition of existing verification marks - utility
meters
The purpose of this item is to provide for the continuity of verifications
of utility meters. This item provides that where a utility meter had been
verified under the National Measurement Act 1960 prior to the commencing
day and that verification was valid immediately before the commencing day,
then the utility meter will be taken to be verified under the new law on
and from the commencing day.
Item 19 Continued use of existing verifying authority's mark - utility
meters
The purpose of this item is to provide continuity of a verifying
authority's mark (old mark) that had been valid under Part VA of the
National Measurement Act 1960 immediately before the commencing day (that
is, had not been revoked nor had the appointment of the verifying authority
been revoked).
The item provides that the old mark is taken to be a verification mark for
utility meters and remains valid for 12 months from the commencing day or
until the verifier's authority is revoked under the new law or until a new
verification mark is allocated under subitem 20(4).
Item 20 Verifying authorities under old law become verifiers under new
law
This item provides for the continuity of verifying authorities for utility
meters. Where a person had been appointed as a verifying authority for a
particular class of utility meters under the old law and was a verifying
authority immediately before the commencing day, the person is taken to be
a verifying authority for the same class of utility meter as if appointed
under the equivalent provisions of the new law.
This item also provides that any conditions of appointment under the old
law continue in force as if they were made under equivalent provisions in
the new law and such conditions may be varied or revoked or new conditions
imposed on or after the commencing day.
The item requires the Secretary to allocate marks for use by the verifier
and separate marks for use by employees of the verifier. Because of item 19
(2)(b)(i), this must be done within 12 months of the commencing day.
This item requires that where a person's appointment as a verifying
authority had been suspended under the old law, the suspension will
continue under the new law until the day that that the suspension would
have ended under the old law.
Item 21 Proceedings under new law if disciplinary action not yet
commenced
This item provides continuity of proceedings of disciplinary action at the
commencing day where disciplinary action had not yet commenced. It provides
that where the Secretary is of the opinion that there may have been grounds
for disciplinary action under the old law in relation to a person appointed
as a verifying authority for breaching a condition of the person's
appointment and no written notice had been served in relation to
disciplinary action immediately before the commencing day , then on or
after the commencing day the grounds for disciplinary action under the old
law are taken to be grounds for disciplinary action under the new law.
The item also provides that on or after the commencing day the Secretary
may serve a notice under 18RD of the new law and take disciplinary action
in accordance with Division 2 of Part XIII of the new law.
Item 22 Proceedings under earlier corresponding law if disciplinary
action commenced
This item provides continuity of proceedings of disciplinary action where
the disciplinary action had commenced but had not concluded at the
commencing day. This item provides that where disciplinary action had
commenced against a person appointed as a verifying authority under the old
law and where immediately before the commencing day the disciplinary action
had not ended or been discontinued, then this Act does not affect the
continuation or conclusion of the disciplinary action under the old law.
Where the disciplinary action to be taken involves the imposition of a
condition on the appointment, suspension of an appointment or the
revocation of an appointment, the disciplinary action is taken in relation
to the appointment of the person as a verifier is taken to have been made
under item 20 of Schedule 2.
Part 7 - Miscellaneous
Item 23 National instrument test procedures
This item provides continuity of the test procedures for the certification,
verification and in-service inspection of measuring instruments used for
trade, published by the National Measurement Institute and known as Uniform
Test Procedures. This item provides that Uniform Test Procedures in force
immediately before the transition day are taken, on or after the transition
day to be national instrument test procedures under 18GG of the new law
until new procedures are determined under that section.
Item 24 Definition of approved pattern
This item provides continuity of approved patterns and thereby allows
measuring instruments in use for trade to continue to be verified and used
for trade following the transition day. Under an earlier corresponding law,
a measuring instrument used for trade was taken to be of an approved
pattern and could continue to be verified (or certified) under that old law
even if its approval was cancelled or had expired (but not withdrawn)
provided that it was of an approved pattern at the time it was first
verified (or certified). This item provides that in these circumstances a
measuring instrument will continue to be taken to be of an approved pattern
following the transition day.