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National Measurement Amendment Bill 2008

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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

1.                    Clause 1 provides for the Act to be cited as the National Measurement Amendment Act 2008.

Clause 2          Commencement

2.                    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

3.                    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)

4.                    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

5.                    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)

6.                    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)

7.                    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)

8.                    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)

9.                    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)

10.                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)

11.                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)

12.                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.

13.                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)

14.                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)

15.                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)

16.                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)

17.                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)

18.                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)

19.                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')

20.                This item refers to the definition in section 3A.

Item 16           Subsection 3(1) (definition of marked)

21.                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)

22.                This item refers to the definition in new subsection 3(5).

Item 18           Subsection 3(1) (definition of measurement)

23.                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')

24.                This item refers to the definition in new subsection 3(6).

Item 20           Subsection 3(1) (definition of metric system of measurement)

25.                This item is a minor consequential amendment as a result of item 21.

Item 21           Subsection 3(1) (definition of metric system of measurement)

26.                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)

27.                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)

28.                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)

29.                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)

30.                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)

31.                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)

32.                A definition of net measurement is included.

Item 28           Subsection 3(1) (definition of obliterate)

33.                A definition of obliterate is included.

Item 29           Subsection 3(1) (definition of package)

34.                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)

35.                This item defines packed in advance ready for sale by reference to section 18HA

Item 31           Subsection 3(1) (definition of premises)

36.                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)

37.                A definition of public weighbridge is included.

Item 33           Subsection 3(1) (definition of public weighbridge licence)

38.                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)

39.                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)

40.                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)

41.                This item extends the meaning of seize to include secure against interference.

Item 37           Subsection 3(1) (definition of sell)

42.                This item extends the meaning of sell to include barter and exchange.

Item 38           Subsection 3(1) (definition of servicing licence)

43.                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)

44.                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)

45.                A definition of servicing licensee’s mark is included.

Item 41           Subsection 3(1) (definition of shortfall)

46.                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)

47.                The definition of this Act is included .

Item 43           Subsection 3(1) (definition of trade measurement inspector)

48.                This item defines the meaning of 'trade measurement inspector’.

Item 44           Subsection 3(1) (definition of use for trade)

49.                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)

50.                This item limits the meaning of utility to only electricity, water and gas.

Item 46           Subsection 3(1) (definition of utility meter)

51.                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)

52.                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)

53.                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)

54.                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)

55.                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)

56.                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)

57.                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)

58.                The definition is repealed.

Item 54           Subsection 3(1) (definition of weighbridge)

59.                A definition of weighbridge is included.

Item 55           At the end of section 3, add subsections (5), (6) and (7)

60.                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'.

61.                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.

62.                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)

63.                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.

64.                Item 57           Repeal and replace paragraph 4(1)(e)

65.                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)

66.                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)

67.                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)

68.                This item is a consequential amendment of subsection 7B(1) as a result of item 62.

Item 61           Subsection 7B(1)

69.                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)

70.                This subsection is repealed as a consequence of item 61.

Item 63           Subsection 8A(1)

71.                This item amends subsection 8A (1) to require that determinations under the subsection are made by legislative instrument.

Item 64           Subsection 8A(3)

72.                As a consequence of item 63, subsection 8A(3) is repealed.

 

Item 65            Part VA

73.                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

74.                This section highlights the key elements of the proposed Part IV of the Act.

Division 2 - Requirements for use of measuring instruments for trade

75.                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

76.                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.

77.                The offence is punishable by a penalty of 100 penalty units (currently $11,000).

78.                This provision is designed to strongly deter people from using measuring instruments that are not verified.

79.                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.

80.                The offence is punishable by a penalty of 20 penalty units (currently $2,200).

81.                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.

82.                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.

83.                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.

84.                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.

85.                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

86.                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.

87.                The offence is punishable by a penalty of 200 penalty units (currently $22,000).

88.                This provision is designed to strongly deter people from installing a measuring instrument for use in trade that is not verified.

89.                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.

90.                The offence is punishable by a penalty of 40 penalty units (currently $4,400).

91.                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.

92.                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

93.                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.

94.                The offence is punishable by a penalty of 200 penalty units (currently $22,000).

95.                This provision is designed to strongly deter people from selling or otherwise supplying a measuring instrument for use in trade that is not verified.

96.                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.

97.                The offence is punishable by a penalty of 40 penalty units (currently $4,400).

98.                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.

99.                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

100.             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.

101.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

102.             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.

103.             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.

104.             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.

105.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

106.             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.

107.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

108.             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.

109.             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.

110.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

111.             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.

112.             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

113.             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.

114.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

115.             This provision is designed to strongly deter people from using inaccurate measuring instruments for trade.

116.             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.

117.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

118.             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.

119.             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.

120.             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 .

121.             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.

122.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

123.             This provision is designed to strongly deter people from selling or otherwise supplying inaccurate measuring instruments for use in trade.

124.             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.

125.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

126.             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.

127.             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

128.             This section highlights the key elements of proposed Division 3 of Part IV of the Act.

Section 18GG Meaning of verification

129.             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.

130.             Proposed paragraphs 18GG(1) (a) and (b) specify when a measuring instrument is verified.

131.             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 .

132.             Proposed subsection 18GG(3) provides that a re-verification period must not be prescribed for utility meters.

133.             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?

134.             Trade measurement inspectors, servicing licensees and employees of servicing licensees are permitted to verify measuring instruments (other than utility meters).

135.             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.

136.             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 .

137.             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.

138.             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.

139.             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?

140.             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

141.             Proposed section 18GJ provides that the Secretary must keep a register of prescribed particulars relating to verification marks.

Section 18GK Requirements for verification

142.             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

143.             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 .

144.             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

145.             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)

146.             The details of these offences are set out below.

Section 18GM  Using a verification mark when not permitted to do so

147.             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.

148.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

149.             This provision is designed to strongly deter people from using a verification mark when not permitted to do so.

150.             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.

151.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

152.             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.

153.             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

154.             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.

155.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

156.             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.

157.             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.

158.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

159.             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.

160.             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

161.             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.

162.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

163.             This provision is designed to strongly deter people from making a misleading mark on a measuring instrument.

164.             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.

165.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

166.             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.

167.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

168.             This provision is designed to strongly deter people from using, selling or otherwise supplying a measuring instrument that bears a misleading mark.

169.             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.

170.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

171.             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.

172.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

173.             This provision is designed to strongly deter people from possessing an instrument or thing designed to make a misleading mark on a measuring instrument.

174.             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.

175.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

176.             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.

177.             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

178.             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.

179.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

180.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

Section 18GQ Obligation on repair of measuring instrument

181.             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.

182.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

183.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

184.             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.

185.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

186.             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.

187.             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.

188.             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.

189.             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

190.             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?

191.             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

192.             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.

193.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

194.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

195.             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.

196.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

197.             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.

198.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

199.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

200.             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.

201.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

202.             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.

203.             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.

204.             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

205.             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.

206.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

207.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

208.             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.

209.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

210.             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.

211.             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

212.             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.

213.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

214.             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.

215.             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.

216.             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.

217.             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

218.             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.

219.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

220.             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.

221.             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.

222.             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

223.             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.

224.             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.

225.             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.

226.             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

227.             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.

228.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

229.             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.

230.             Proposed subsection 18HG(1) is designed to strongly deter people from engaging in the prohibited behaviour.

231.             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.

232.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

233.             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.

234.             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

235.             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.

236.             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.

237.             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.

238.             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

239.             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.

240.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

241.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

242.             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.

243.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

244.             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.

245.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

246.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

247.             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.

248.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

249.             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.

250.             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.

251.             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

252.             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

253.             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.

254.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

255.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

256.             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.

257.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

258.             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.

259.             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.

260.             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.

261.             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

262.             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).

263.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

264.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

265.             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).

266.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

267.             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.

268.             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.

269.             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

270.             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.

271.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

272.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

273.             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.

274.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

275.             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.

276.             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.

277.             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.

278.             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.

279.             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.

280.             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

281.             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.

282.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

283.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

284.             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.

285.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

286.             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.

287.             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.

288.             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.

289.             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.

290.             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.

291.             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

292.             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.

293.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

294.             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.

295.             This provision is designed to strongly deter people from failing to mark packages in the prescribed manner.

296.             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.

297.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

298.             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.

299.             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.

300.             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.

301.             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

302.             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.

303.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

304.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

305.             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.'

306.             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.

307.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

308.             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.

309.             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.

310.             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

311.             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.

312.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

313.             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.

314.             Subsection 18JG(1) is designed to strongly deter people from engaging in the prohibited behaviour.

315.             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.

316.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

317.             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.

318.             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.

319.             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.

320.             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

321.             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.

322.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

323.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

324.             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.

325.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

326.             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.  

327.             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.

328.             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.

329.             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

330.             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?

331.             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

332.             Proposed section 18JK(1) provides that the regulations may prescribe where an AQS mark is to be marked.

333.             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.

334.             The offence is punishable by a penalty of 100 penalty units (currently $11,000).

335.             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.

336.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

337.             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.

338.             The offence is punishable by a penalty of 20 penalty units (currently $2,200).

339.             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.

340.             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

341.             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.

342.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

343.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

344.             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.

345.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

346.             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.

347.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

348.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

349.             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.

350.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

351.             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.

352.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

353.             This provision is designed to strongly deter people from engaging in the prohibited behaviour.

354.             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.

355.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

356.             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.

357.             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

358.             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.

359.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

360.             This provision is designed to strongly deter people from committing shortfall offences.

361.             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.

362.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

363.             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.

364.             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.

365.             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.

366.             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.

367.             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

368.             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.

369.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

370.             This provision is designed to strongly deter people from committing shortfall offences.

371.             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.

372.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

373.             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.

374.             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.

375.             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.

376.             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

377.             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.

378.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

379.             This provision is designed to strongly deter people from committing a shortfall offence.

380.             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.

381.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

382.             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.

383.             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.

384.             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.

385.             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

386.             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.

387.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

388.             This provision is designed to strongly deter people from committing a shortfall offence.

389.             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.

390.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

391.             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.

392.             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.

393.             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.

394.             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.

395.             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

396.             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?

397.             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

398.             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.

399.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

400.             The provision is designed to strongly deter people from committing a shortfall offence.

401.             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.

402.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

403.             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.

404.             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.

405.             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.

406.             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.

407.             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

408.             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.

409.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

410.             The provision is designed to strongly deter people from committing a shortfall offence.

411.             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.

412.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

413.             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.

414.             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.

415.             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.

416.             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

417.             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.

418.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

419.             The provision is designed to strongly deter people from committing a shortfall offence.

420.             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.

421.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

422.             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.

423.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

424.             The provision is designed to strongly deter people from committing a shortfall offence.

425.             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.

426.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

427.             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.

428.             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.

429.             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.

430.             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.

431.             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

432.             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.

433.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

434.             The provision is designed to strongly deter people from committing a shortfall offence.

435.             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.

436.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

437.             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.

438.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

439.             The provision is designed to strongly deter people from committing a shortfall offence.

440.             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.

441.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

442.             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.

443.             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.

444.             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.

445.             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.

446.             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

447.             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.

448.             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.

449.             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.

450.             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.

451.             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.

452.             Proposed subsection 18JX(5) provides for the specification of terms and conditions in the permit.

453.             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.

454.             Proposed subsection 18JX(8) allows the Secretary to amend or cancel permits by notice in writing.

455.             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).

456.             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.

457.             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.

458.             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

459.             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

460.             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.

461.             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

462.             This section highlights the key elements of new Part VII of the Act.

Section 18KA Measurement must be open to scrutiny if purchaser present

463.             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.

464.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

465.             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.

466.             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.

467.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

468.             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.

469.             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

470.             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.

471.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

472.             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.

473.             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.

474.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

475.             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.

476.             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

477.             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.

478.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

479.             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.

480.             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.

481.             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.

482.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

483.             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.

484.             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

485.             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.

486.             The offence is punishable by a penalty of 200 penalty units (currently $22,000).

487.             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.

488.             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.

489.             The offence is punishable by a penalty of 40 penalty units (currently $4,400).

490.             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.

491.             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

492.             This section highlights the key elements of new Part VIII of the Act.

Division 2 - Evidentiary matters

Section 18LA Evidentiary certificate - shortfall offences

493.             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.

494.             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.

495.             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.

496.             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.

497.             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.

498.             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

499.             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

500.             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

501.             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

502.             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.

503.             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.

504.             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.

505.             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.

506.             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

507.             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.

508.             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.

509.             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

510.             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.

511.             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

512.             Proposed section 18LH specifies that the penalty imposed by a notice must be a pecuniary penalty equal to 5 penalty units (currently $550).

513.             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

514.             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.

515.             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

516.             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.

517.             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

518.             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

519.             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.

520.             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

521.             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.

522.             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

523.             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.

524.             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

525.             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.

526.             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

527.             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.

528.             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

529.             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

530.             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.

531.             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.

532.             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.

533.             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

534.             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.

535.             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

536.             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.

537.             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

538.             Proposed section 18MD highlights the key elements of Division 3 of new Part IX of the Act.

Section 18ME Monitoring powers

539.             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.

540.             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.

541.             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.

542.             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

543.             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.

544.             'Evidential material' is defined in proposed subsection 3(1).

545.             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.

546.             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.

547.             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.

548.             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

549.             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.

550.             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.

551.             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.

552.             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.

553.             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.

554.             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.

555.             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.

556.             Proposed subsection 18MG(6) provides that a trade measurement inspector must not be more destructive than is reasonable in exercising trade measurement powers.

557.             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.

558.             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.

559.             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

560.             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.

561.             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.

562.             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.

563.             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

564.             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.

565.             This provision is designed to assist with the efficient administration of the Act.

566.             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.

567.             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

568.             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

569.             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

570.             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.

571.             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

572.             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.

573.             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

574.             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

575.             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

576.             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

577.             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

578.             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

579.             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.

580.             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

581.             Proposed section 18MT requires a trade measurement inspector to provide a receipt for all things seized.

582.             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

583.             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.

584.             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.

585.             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

586.             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.

587.             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

588.             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

589.             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).

590.             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

591.             Proposed section 18MY outlines the key elements in Division 6 of Part IX of the Act.

Section 18MZ  Monitoring warrants

592.             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.

593.             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.

594.             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.

595.             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

596.             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.

597.             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.

598.             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.

599.             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

600.             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.

601.             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

602.             Proposed section 18MZC specifies that powers conferred on a magistrate under Part IX are conferred on the magistrate in his or her personal capacity.

603.             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

604.             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

605.             Proposed section 18N highlights the key elements of proposed Part X of the Act.

Section 18NA Application for a servicing licence

606.             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

607.             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

608.             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.

609.             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

610.             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

611.             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

612.             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

613.             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

614.             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

615.             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

616.             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

617.             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.

618.             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.

619.             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.

620.             Subsection 18NN(4) provides that it is a condition of a servicing licence that the licensee must comply with such an order.

621.             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

622.             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.

623.             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.

624.             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.

625.             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.

626.             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

627.             Proposed section 18P highlights the key elements of proposed Part XI of the Act.

Section 18PA Application for a servicing licence

628.             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

629.             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

630.             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.

631.             Proposed section 18PC is designed to ensure that licences are only issued to appropriate persons.

Section 18PF Register of servicing licensees

632.             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

633.             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

634.             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

635.             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

636.             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

637.             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

638.             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

639.             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

640.             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.

641.             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

642.             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.

643.             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

644.             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.

645.             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.

646.             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

647.             Subsection 18PQ(4) provides that it is a condition of a public weighbridge licence that the licensee must comply with such an order.

648.             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

649.             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.

650.             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.

651.             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.

652.             Subsection 18PR(4) provides that it is a condition of a public weighbridge licence that the licensee must comply with such an order.

653.             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.

654.             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

655.             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.

656.             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.

657.             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.

658.             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.

659.             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).

660.             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.

661.             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

662.             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.

663.             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.

664.             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.

665.             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.

666.             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.

667.             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

668.             Proposed section 18Q highlights the key elements of proposed Part XII of the Act.

Section 18QA Grounds for disciplinary action

669.             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.

670.             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.

671.             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.

672.             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

673.             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.

674.             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.

675.             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

676.             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.

677.             Proposed subsection 18QC(2) provides that the Secretary may take disciplinary action by notice given to the licensee.

678.             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

679.             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.

680.             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

681.             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).

682.             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.

683.             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.

684.             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

685.             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.

686.             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

687.             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

688.             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

689.             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

690.             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

691.             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

692.             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

693.             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

694.             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.

695.             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.

696.             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.

697.             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

698.             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.

699.             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.

700.             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.

701.             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

702.             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)

703.             This heading is repealed and the following is substituted.

Part XIV Miscellaneous

Item 67           Paragraph 19A(1)(d)

704.             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)

705.             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

706.             This amendment is to clarify the Chief Metrologist's ability to charge fees for pattern approval activities.

Item 70           Paragraph 19AAA(1)(a)

707.             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)

708.             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

709.             After section 19B, sections 19C to 19P are inserted.

Section 19C Offences committed by employees - liability of employees

710.             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

711.             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

712.             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

713.             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

714.             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

715.             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.

716.             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.

717.             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.

718.             Subsection 19H(4) protects protected information from compulsory disclosure to a court, except for the purposes of the Act.

719.             Subsection 19H(5) defines “court”, “personal information” and “protected information”.

720.             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

721.             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

722.             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

723.             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.

724.             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.

725.             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

726.             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

727.             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)

728.             These are technical amendments to confirm the prima facie nature of the evidence mentioned in the provisions.

Item 74           After paragraph 20(1)(a)

729.             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)

730.             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)

731.             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)

732.             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)

733.             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)

734.             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)

735.             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)

736.             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)

737.             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)

738.             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)

739.             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

740.             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

741.             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.

742.             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

743.             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.

744.             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

745.             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.

746.             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

747.             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

748.             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

749.             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.

750.             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.

751.             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

752.             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.

753.             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

754.             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.

755.             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.

756.             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

757.             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.

758.             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.

759.             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

760.             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.

761.             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.

762.             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.

763.             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.

764.             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.

765.             Paragraph (7) provides that the Secretary must approve in writing the marks used by the servicing licensees and their employees when verifying measuring instruments.

766.             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.

767.             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

768.             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.

769.             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

770.             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.

771.             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.

772.             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)

773.             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

774.             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.

775.             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

776.             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. 

777.             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.

778.             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

779.             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.

780.             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

781.             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

782.             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

783.             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).

784.             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

785.             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.

786.             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.

787.             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.

788.             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

789.             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.

790.             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

791.             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

792.             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

793.             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

794.             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.