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This is a Bill, not an Act. For current law, see the Acts databases.


NATIONAL MEASUREMENT AMENDMENT BILL 2008

2008
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Measurement Amendment Bill
2008
No. , 2008
(Innovation, Industry, Science and Research)
A Bill for an Act to amend the law in relation to
measurement, and for related purposes
i National Measurement Amendment Bill 2008 No. , 2008
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 1
Schedule 1--Trade measurement
3
National Measurement Act 1960
3
Schedule 2--Application and transitional provisions
148
Part 1--Preliminary
148
Part 2--General application provisions
149
Part 3--Marks and verification generally
151
Part 4--Permits
153
Part 5--Servicing licences and public weighbridge licences
156
Part 6--Utility meters
162
Part 7--Miscellaneous
166
National Measurement Amendment Bill 2008 No. , 2008 1
A Bill for an Act to amend the law in relation to
1
measurement, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the National Measurement Amendment
5
Act 2008.
6
2 Commence ment
7
This Act commences on 1 July 2009.
8
3 Schedule(s)
9
Each Act that is specified in a Schedule to this Act is amended or
10
repealed as set out in the applicable items in the Schedule
11
2 National Measurement Amendment Bill 2008 No. , 2008
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
3
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 3
1
Schedule 1
--
Trade measurement
2
3
National Measurement Act 1960
4
1 Subsection 3(1)
5
Insert:
6
approved pattern, in relation to a measuring instrument, means a
7
pattern approved for the measuring instrument under section 19A
8
that:
9
(a) is currently in force; or
10
(b) has expired or been cancelled (but not withdrawn) and was in
11
force when the measuring instrument was first verified.
12
2 Subsection 3(1)
13
Insert:
14
AQS mark has the meaning given by section 18JJ.
15
3 Subsection 3(1)
16
Insert:
17
AQS sampling procedures are sampling procedures prescribed for
18
the purposes of Subdivision 3-C of Division 3 of Part VI.
19
4 Subsection 3(1)
20
Insert:
21
AQS test procedures are test procedures prescribed for the
22
purposes of Subdivision 3-C of Division 3 of Part VI.
23
5 Subsection 3(1)
24
Insert:
25
AQS threshold is the threshold prescribed for the purposes of
26
Subdivision 3-C of Division 3 of Part VI.
27
6 Subsection 3(1)
28
Insert:
29
Schedule 1 Trade measurement
4 National Measurement Amendment Bill 2008 No. , 2008
article includes a substance.
1
7 Subsection 3(1) (paragraph (b) of the definition of
2
Australian legal unit of measurement)
3
Omit "subsection 7B(1)", substitute "section 7B".
4
8 Subsection 3(1)
5
Insert:
6
automated packing machine means a machine that follows a
7
pre-determined program for automatically measuring articles in
8
pre-determined quantities as part of the packing process.
9
9 Subsection 3(1)
10
Insert:
11
business premises means premises or a part of premises:
12
(a) used for the importation, packing, storage or sale of articles
13
or utilities sold, or to be sold, by measurement; or
14
(b) on which a measuring instrument is used for trade; or
15
(c) used for activities incidental to the uses mentioned in
16
paragraph (a) or (b);
17
but does not include premises or a part of premises occupied as a
18
residence or for residential accommodation.
19
10 Subsection 3(1)
20
Insert:
21
business vehicle means a vehicle:
22
(a) used for the transportation of articles or utilities sold, or to be
23
sold, by measurement (whether packed in advance ready for
24
sale or otherwise); or
25
(b) on which a measuring instrument is used for trade; or
26
(c) used for the measurement of articles or utilities sold, or to be
27
sold, by measurement; or
28
(d) used for activities incidental to the uses mentioned in
29
paragraph (a), (b) or (c).
30
11 Subsection 3(1)
31
Insert:
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 5
controller, in relation to premises, a part of premises or a vehicle,
1
means the person apparently in control of the premises, the part of
2
the premises or the vehicle.
3
12 Subsection 3(1)
4
Insert:
5
earlier corresponding law means any of the following:
6
(a) the Trade Measurement Act 1989 of New South Wales;
7
(b) the Trade Measurement Administration Act 1989 of New
8
South Wales;
9
(c) the Trade Measurement Act 1995 of Victoria;
10
(d) the Trade Measurement (Administration) Act 1995 of
11
Victoria;
12
(e) the Trade Measurement Act 1990 of Queensland;
13
(f) the Trade Measurement Administration Act 1990 of
14
Queensland;
15
(g) the Trade Measurement Act 2006 of Western Australia;
16
(h) the Trade Measurement Administration Act 2006 of Western
17
Australia;
18
(i) the Trade Measurement Act 1993 of South Australia;
19
(j) the Trade Measurement Administration Act 1993 of South
20
Australia;
21
(k) the Trade Measurement Act 1999 of Tasmania;
22
(l) the Trade Measurement (Tasmania) Administration Act 1999
23
of Tasmania;
24
(m) the Trade Measurement Act 1991 of the Australian Capital
25
Territory;
26
(n) the Trade Measurement (Administration) Act 1991 of the
27
Australian Capital Territory;
28
(o) the Trade Measurement Act of the Northern Territory;
29
(p) the Trade Measurement Administration Act of the Northern
30
Territory;
31
and includes the regulations made under those Acts.
32
13 Subsection 3(1)
33
Insert:
34
evidential material means any of the following:
35
Schedule 1 Trade measurement
6 National Measurement Amendment Bill 2008 No. , 2008
(a) any thing with respect to which an offence against this Act
1
has been committed or is suspected, on reasonable grounds,
2
to have been committed;
3
(b) any thing as to which there are reasonable grounds for
4
suspecting that it will afford evidence as to the commission
5
of any such offence;
6
(c) any thing as to which there are reasonable grounds for
7
suspecting that it is intended to be used for the purpose of
8
committing any such offence.
9
14 Subsection 3(1)
10
Insert:
11
inspector's mark means the mark allotted to a trade measurement
12
inspector by the Secretary under subsection 18MA(5).
13
15 Subsection 3(1)
14
Insert:
15
made available as a public weighbridge has the meaning given by
16
section 3A.
17
16 Subsection 3(1)
18
Insert:
19
marked: something is marked on a package if:
20
(a) it is marked on the package itself; or
21
(b) it is marked on a label attached to or enclosed with, but
22
visible within, the package.
23
17 Subsection 3(1)
24
Insert:
25
marking a measuring instrument with a verification mark has the
26
meaning given in subsection (5).
27
18 Subsection 3(1)
28
Insert:
29
measurement means a determination of number or physical
30
quantity, other than for descriptive purposes only.
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 7
19 Subsection 3(1)
1
Insert:
2
measuring instrument gives an inaccurate measurement has the
3
meaning given in subsection (6).
4
20 Subsection 3(1) (paragraph (b) of the definition of metric
5
system of measurement)
6
Omit "approved; and", substitute "approved.".
7
21 Subsection 3(1) (paragraph (c) of the definition of metric
8
system of measurement)
9
Repeal the paragraph.
10
22 Subsection 3(1)
11
Insert:
12
national group test procedures are test procedures with respect to
13
groups of packages prescribed for the purposes of Subdivision 4-B
14
of Division 4 of Part VI.
15
23 Subsection 3(1)
16
Insert:
17
national instrument test procedures are procedures for testing
18
measuring instruments determined by the Minister under
19
subsection 18GG(2).
20
24 Subsection 3(1)
21
Insert:
22
national sampling procedures are sampling procedures prescribed
23
for the purposes of Subdivision 4-B of Division 4 of Part VI.
24
25 Subsection 3(1)
25
Insert:
26
national single article test procedures are test procedures with
27
respect to single packages prescribed for the purposes of
28
Subdivision 4-B of Division 4 of Part VI.
29
Schedule 1 Trade measurement
8 National Measurement Amendment Bill 2008 No. , 2008
26 Subsection 3(1)
1
Insert:
2
national test threshold is the threshold prescribed for the purposes
3
of Subdivision 4-B of Division 4 of Part VI.
4
27 Subsection 3(1)
5
Insert:
6
net measurement, in relation to an article, means the measurement
7
of the article disregarding any packaging or other thing that is not
8
part of the article.
9
28 Subsection 3(1)
10
Insert:
11
obliterate, in respect of a verification mark, means destroy, or
12
remove and destroy, a verification mark.
13
29 Subsection 3(1)
14
Insert:
15
package includes:
16
(a) a container, wrapper, confining band or other thing in which
17
an article is packed, or 2 or more articles are packed, for sale
18
as a single item; and
19
(b) anything around which an article is wound or wrapped, or 2
20
or more articles are wound or wrapped, for sale as a single
21
item.
22
30 Subsection 3(1)
23
Insert:
24
packed in advance ready for sale has the meaning given by
25
section 18HA.
26
31 Subsection 3(1)
27
Insert:
28
premises means:
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 9
(a) an area of land or any other place, whether or not it is
1
enclosed or built on; or
2
(b) a building or other structure.
3
32 Subsection 3(1)
4
Insert:
5
public weighbridge means a weighbridge that is made available as
6
a public weighbridge.
7
33 Subsection 3(1)
8
Insert:
9
public weighbridge licence means a licence granted under
10
section 18PB.
11
34 Subsection 3(1)
12
Insert:
13
public weighbridge licensee means a person to whom a licence is
14
granted under section 18PB.
15
35 Subsection 3(1)
16
Insert:
17
residential premises means premises, or a part of premises, that is
18
occupied as a residence or for residential accommodation.
19
36 Subsection 3(1)
20
Insert:
21
seize includes secure against interference.
22
37 Subsection 3(1)
23
Insert:
24
sell includes barter or exchange.
25
38 Subsection 3(1)
26
Insert:
27
servicing licence means a licence granted under section 18NB.
28
Schedule 1 Trade measurement
10 National Measurement Amendment Bill 2008 No. , 2008
39 Subsection 3(1)
1
Insert:
2
servicing licensee means a person to whom a licence is granted
3
under section 18NB.
4
40 Subsection 3(1)
5
Insert:
6
servicing licensee's mark means the mark approved by the
7
Secretary for use by or on behalf of a servicing licensee in
8
verifying measuring instruments.
9
41 Subsection 3(1)
10
Insert:
11
shortfall, in relation to an article packed in advance ready for sale
12
that is not marked with an AQS mark, has the meaning given by
13
section 18JR.
14
42 Subsection 3(1)
15
Insert:
16
this Act includes the regulations and any other instrument made
17
under a provision of this Act.
18
43 Subsection 3(1)
19
Insert:
20
trade measurement inspector means:
21
(a) in relation to the exercise of a power or the performance of a
22
function or duty in circumstances prescribed under paragraph
23
18MA(3)(b)--a person appointed to a class of trade
24
measurement inspectors authorised to exercise that power or
25
perform that function or duty in those circumstances; and
26
(b) in relation to the exercise of a power or the performance of a
27
function or duty otherwise--a person appointed to a class of
28
trade measurement inspectors authorised to exercise that
29
power or perform that function or duty.
30
44 Subsection 3(1) (definition of use for trade)
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 11
Repeal the definition, substitute:
1
use for trade: a person uses a measuring instrument for trade if:
2
(a) the person is actually or apparently in control of the
3
measuring instrument; and
4
(b) the person uses it, or makes it available for another person to
5
use, for either or both of the following purposes:
6
(i) determining the consideration in respect of a
7
transaction;
8
(ii) determining the amount of a tax.
9
45 Subsection 3(1)
10
Insert:
11
utility means gas, electricity or water.
12
46 Subsection 3(1) (definition of utility meter)
13
Omit "Part VA", substitute "Part IV".
14
47 Subsection 3(1)
15
Insert:
16
utility meter verifier means a person appointed as a utility meter
17
verifier under section 18RA or 18RH.
18
48 Subsection 3(1)
19
Insert:
20
utility meter verifier's mark means a mark allocated to a person
21
appointed as a verifier in relation to utility meters under
22
section 18RA or 18RH for use by the verifier or its employees (if
23
any), when verifying utility meters.
24
49 Subsection 3(1)
25
Insert:
26
vehicle includes vessel, aircraft and any other means of conveying
27
persons or goods.
28
50 Subsection 3(1) (definition of verification)
29
Repeal the definition, substitute:
30
Schedule 1 Trade measurement
12 National Measurement Amendment Bill 2008 No. , 2008
verification, in relation to a measuring instrument, has the meaning
1
given by section 18GG.
2
51 Subsection 3(1)
3
Insert:
4
verification mark means:
5
(a) in relation to utility meters--a utility meter verifier's mark;
6
and
7
(b) in relation to any other measuring instrument:
8
(i) an inspector's mark; or
9
(ii) a servicing licensee's mark.
10
52 Subsection 3(1)
11
Insert:
12
verifier:
13
(a) in relation to utility meters--means a person who is
14
permitted to verify the utility meter under section 18GI; and
15
(b) in relation to any other measuring instrument--means a
16
person who is permitted to verify the measuring instrument
17
under section 18GH.
18
53 Subsection 3(1) (definition of verifying authority)
19
Repeal the definition.
20
54 Subsection 3(1)
21
Insert:
22
weighbridge means a measuring instrument that is of a capacity of
23
3 tonnes or more and has one or more platforms by the use of
24
which the measuring instrument is capable of determining the mass
25
of a vehicle or of livestock.
26
55 At the end of section 3
27
Add:
28
(5) A reference in this Act to a person marking a measuring
29
instrument with a verification mark includes the marking of the
30
measuring instrument itself, the affixing of a label to the measuring
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 13
instrument or the marking of a label affixed to the measuring
1
instrument.
2
(6) For the purposes of this Act, a measuring instrument gives an
3
inaccurate measurement if the measuring instrument does not
4
operate within the appropriate limits of error that are permitted
5
under the regulations.
6
(7) A reference in this Act to a particular provision or group of
7
provisions includes a reference to regulations made under that
8
provision or under any one or more of the provisions of that group
9
of provisions.
10
56 After section 3
11
Insert:
12
3A Meaning of made available as a public weighbridge
13
(1) A weighbridge is made available as a public weighbridge if:
14
(a) it is open for use by or on behalf of the public; or
15
(b) it is available for use for a charge.
16
(2) A weighbridge is not made available as a public weighbridge if
17
the weighbridge is used by a person who owns or who has
18
contracted to operate the weighbridge:
19
(a) for the purpose of determining the consideration in an
20
agreement between the person and another person; or
21
(b) for purposes that do not involve another person.
22
(3) The regulations may prescribe other circumstances in which a
23
weighbridge is taken not to be made available as a public
24
weighbridge for the purposes of this Act.
25
57 Paragraph 4(1)(e)
26
Repeal the paragraph, substitute:
27
(e) to provide for a national system of trade measurement;
28
58 Subsection 4(3)
29
Repeal the subsection.
30
59 After section 4A
31
Schedule 1 Trade measurement
14 National Measurement Amendment Bill 2008 No. , 2008
Insert:
1
4B Application of trade measure ment provisions
2
(1) Parts IV to XIII of this Act do not apply to a measurement, or an
3
instrument used for the purposes of a measurement, to determine
4
any of the following:
5
(a) charges relating to telephone calls or the use of internet
6
services;
7
(b) the fare payable for use of a taxi;
8
(c) the charge for the hire of a motor vehicle;
9
(d) tyre pressures;
10
(e) the expiration of time, or the calculation of time, for parking
11
a vehicle.
12
(2) Parts IV to XIII of this Act do not apply to a measuring instrument
13
that is an automated packing machine.
14
(3) Parts IV to XIII of this Act do not apply to a measurement for the
15
purposes of:
16
(a) reporting and disseminating information relating to
17
greenhouse gas emissions, greenhouse gas projects, energy
18
production and energy consumption under the National
19
Greenhouse and Energy Reporting Act 2007; or
20
(b) reporting and disseminating information relating to
21
greenhouse gas emissions or greenhouse gas projects under
22
any other law of the Commonwealth or of a State or
23
Territory; or
24
(c) emissions trading under a law of the Commonwealth or of a
25
State or Territory.
26
60 Subsection 7B(1)
27
Omit "(1) The", substitute "The".
28
61 Subsection 7B(1)
29
Omit "issue written", substitute ", by legislative instrument, issue".
30
62 Subsection 7B(2)
31
Repeal the subsection.
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 15
63 Subsection 8A(1)
1
After "The Chief Metrologist may", insert ", by legislative instrument,".
2
64 Subsection 8A(3)
3
Repeal the subsection.
4
65 Part VA
5
Repeal the Part, substitute:
6
Part IV--Using measuring instruments for trade
7
Division 1--Overview of Part
8
18G Overview
9
Overview of Part
10
(1) Measuring instruments must be verified, used in a way that
11
gives an accurate measurement, and be accurate.
12
(2) Division 2 creates offences to deal with these matters.
13
(3) Division 3 establishes the system for verifying measuring
14
instruments.
15
Division 2--Requirements for use of measuring
16
instruments for trade
17
18GA Measuring instruments used for trade to be verified
18
Offence requiring fault element
19
(1) A person commits an offence if:
20
(a) the person uses a measuring instrument for trade; and
21
(b) the measuring instrument is not verified.
22
Penalty: 100 penalty units.
23
Schedule 1 Trade measurement
16 National Measurement Amendment Bill 2008 No. , 2008
Strict liability offence
1
(2) A person commits an offence if:
2
(a) the person uses a measuring instrument for trade; and
3
(b) the measuring instrument is not verified.
4
Penalty: 20 penalty units.
5
(3) Subsection (2) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
(4) If:
8
(a) a measuring instrument is on premises, or on a part of
9
premises; and
10
(b) the consideration in respect of a transaction or the amount of
11
a tax is determined on those premises, or that part of those
12
premises;
13
it is presumed for the purposes of this section that the measuring
14
instrument has been used for trade on the premises or that part of
15
the premises unless the contrary is established.
16
(5) If:
17
(a) a measuring instrument is in or on a vehicle; and
18
(b) the consideration in respect of a transaction or the amount of
19
a tax is determined in or on that vehicle;
20
it is presumed for the purposes of this section that the measuring
21
instrument has been used for trade in or on the vehicle unless the
22
contrary is established.
23
18GB Installing unverified measuring instrume nts
24
Offence requiring fault element
25
(1) A person commits an offence if:
26
(a) the person installs in or on any premises or vehicle a
27
measuring instrument; and
28
(b) the measuring instrument is installed for use for trade; and
29
(c) the measuring instrument is not verified.
30
Penalty: 200 penalty units.
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 17
Strict liability offence
1
(2) A person commits an offence if:
2
(a) the person installs in or on any premises or vehicle a
3
measuring instrument; and
4
(b) the measuring instrument is installed for use for trade; and
5
(c) the measuring instrument is not verified.
6
Penalty: 40 penalty units.
7
(3) Subsection (2) is an offence of strict liability.
8
Note:
For strict liability, see section 6.1 of the Criminal Code.
9
18GC Supplying unverified measuring instruments
10
Offence requiring fault element
11
(1) A person commits an offence if:
12
(a) the person sells or otherwise supplies a measuring
13
instrument; and
14
(b) the measuring instrument is sold or otherwise supplied for
15
use for trade; and
16
(c) the measuring instrument is not verified.
17
Penalty: 200 penalty units.
18
Strict liability offence
19
(2) A person commits an offence if:
20
(a) the person sells or otherwise supplies a measuring
21
instrument; and
22
(b) the measuring instrument is sold or otherwise supplied for
23
use for trade; and
24
(c) the measuring instrument is not verified.
25
Penalty: 40 penalty units.
26
(3) Subsection (2) is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
Schedule 1 Trade measurement
18 National Measurement Amendment Bill 2008 No. , 2008
18GD Inaccurate use of measuring instrume nts
1
Offence requiring fault element
2
(1) A person commits an offence if the person:
3
(a) uses a measuring instrument for trade; and
4
(b) does so in such a way, or under such circumstances, that the
5
measuring instrument gives an inaccurate measurement or
6
gives other information (including a statement as to price)
7
inaccurately.
8
Penalty: 200 penalty units.
9
Strict liability offence
10
(2) A person commits an offence if the person:
11
(a) uses a measuring instrument for trade; and
12
(b) does so in such a way, or under such circumstances, that the
13
measuring instrument gives an inaccurate measurement or
14
gives other information (including a statement as to price)
15
inaccurately.
16
Penalty: 40 penalty units.
17
Offence requiring fault element
18
(3) A person commits an offence if:
19
(a) the person does, or fails to do, something in relation to a
20
measuring instrument; and
21
(b) the person's act or omission causes, or is likely to cause, the
22
measuring instrument to give an inaccurate measurement or
23
to give other information (including a statement as to price)
24
inaccurately when used for trade.
25
Penalty: 200 penalty units.
26
Strict liability offence
27
(4) A person commits an offence if:
28
(a) the person does, or fails to do, something in relation to a
29
measuring instrument; and
30
(b) the person's act or omission causes, or is likely to cause, the
31
measuring instrument to give an inaccurate measurement or
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 19
to give other information (including a statement as to price)
1
inaccurately when used for trade.
2
Penalty: 40 penalty units.
3
(5) Subsections (2) and (4) are offences of strict liability.
4
Note:
For strict liability, see section 6.1 of the Criminal Code.
5
18GE Using or supplying inaccurate measuring instruments
6
Offence requiring fault element
7
(1) A person commits an offence if:
8
(a) the person uses a measuring instrument for trade; and
9
(b) the measuring instrument gives an inaccurate measurement or
10
gives other information (including a statement as to price)
11
inaccurately.
12
Penalty: 200 penalty units.
13
Strict liability offence
14
(2) A person commits an offence if:
15
(a) the person uses a measuring instrument for trade; and
16
(b) the measuring instrument gives an inaccurate measurement or
17
gives other information (including a statement as to price)
18
inaccurately.
19
Penalty: 40 penalty units.
20
(3) If:
21
(a) a measuring instrument is on premises, or on a part of
22
premises; and
23
(b) the consideration in respect of a transaction or the amount of
24
a tax is determined on those premises, or that part of those
25
premises;
26
it is presumed for the purposes of subsections (1) and (2) that the
27
measuring instrument has been used for trade on the premises or
28
that part of the premises unless the contrary is established.
29
(4) If:
30
(a) a measuring instrument is in or on a vehicle; and
31
Schedule 1 Trade measurement
20 National Measurement Amendment Bill 2008 No. , 2008
(b) the consideration in respect of a transaction or the amount of
1
a tax is determined in or on that vehicle;
2
it is presumed for the purposes of subsections (1) and (2) that the
3
measuring instrument has been used for trade in or on the vehicle
4
unless the contrary is established.
5
Offence requiring fault element
6
(5) A person commits an offence if:
7
(a) the person sells or otherwise supplies a measuring instrument
8
for use for trade; and
9
(b) the measuring instrument gives an inaccurate measurement or
10
gives other information (including a statement as to price)
11
inaccurately.
12
Penalty: 200 penalty units.
13
Strict liability offence
14
(6) A person commits an offence if:
15
(a) the person sells or otherwise supplies a measuring instrument
16
for use for trade; and
17
(b) the measuring instrument gives an inaccurate measurement or
18
gives other information (including a statement as to price)
19
inaccurately.
20
Penalty: 40 penalty units.
21
(7) Subsections (2) and (6) are offences of strict liability.
22
Note:
For strict liability, see section 6.1 of the Criminal Code.
23
Division 3--Verification of measuring instruments
24
18GF Overvie w
25
Overview of Division
26
(1) This Division deals with the verification of measuring
27
instruments.
28
(2) Verification is defined in section 18GG. It is a process of
29
ensuring that measuring instruments operate accurately.
30
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 21
(3) Trade measurement inspectors, servicing licensees and
1
employees of servicing licensees are permitted to verify
2
measuring instruments (other than utility meters) (see
3
section 18GH).
4
(4) Utility meter verifiers are permitted to verify utility meters
5
(see section 18GI).
6
(5) Certain requirements must be met before a measuring
7
instrument may be verified (see section 18GK).
8
(6) This Division contains offences for persons who:
9
(a) use a verification mark when not permitted to do
10
so (see section 18GM); and
11
(b) sell or supply measuring instruments that have
12
been marked with a verification mark by a person
13
not permitted to do so (see section 18GN); and
14
(c) mark measuring instruments in a misleading way
15
(see section 18GO); and
16
(d) possess false verification marks (see
17
section 18GP); and
18
(e) fail to obliterate verification marks if a measuring
19
instrument's metrological performance is affected
20
by repairs (see section 18GQ).
21
18GG Meaning of verification
22
(1) A measuring instrument is verified if:
23
(a) either:
24
(i) a verifier is satisfied that the measuring instrument
25
complies with the requirements for verification set out
26
in section 18GK when tested in accordance with the
27
national instrument test procedures and the measuring
28
instrument is marked with a verification mark; or
29
(ii) if the measuring instrument is treated as one of a batch
30
under the national instrument test procedures--a verifier
31
Schedule 1 Trade measurement
22 National Measurement Amendment Bill 2008 No. , 2008
is satisfied that measuring instruments of that batch
1
comply with the requirements for verification set out in
2
section 18GK when tested in accordance with those
3
procedures and the measuring instrument is marked
4
with a verification mark; and
5
(b) if the instrument is of a class for which a re-verification
6
period is prescribed--the period since it was last verified or
7
re-verified does not exceed that re-verification period.
8
(2) The Minister may, by legislative instrument, determine the national
9
instrument test procedures.
10
(3) A re-verification period must not be prescribed for utility meters.
11
(4) The regulations may:
12
(a) prescribe circumstances in which a measuring instrument that
13
is treated as one of a batch under the national instrument test
14
procedures may be marked with a verification mark by a
15
person other than the verifier; and
16
(b) provide for the provision of labour, facilities and equipment
17
for the purposes of batch testing measuring instruments; and
18
(c) prescribe circumstances in which a measuring instrument is
19
taken to be marked with a verification mark.
20
18GH Who is pe rmitted to ve rify measuring instrume nts other than
21
utility meters?
22
(1) Subject to the limitations in this section, each of the following
23
persons is permitted to verify a measuring instrument other than a
24
utility meter:
25
(a) a trade measurement inspector;
26
(b) a servicing licensee;
27
(c) an employee of a servicing licensee.
28
Note 1:
Trade measurement inspectors are appointed under Part IX.
29
Note 2:
Servicing licensees are granted servicing licences under Part X.
30
(2) A trade measurement inspector of a particular class may verify any
31
measuring instrument that an inspector of that class is authorised to
32
verify.
33
(3) A servicing licensee may personally verify a measuring instrument
34
if:
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 23
(a) the measuring instrument is of a class of measuring
1
instruments that the licensee is licensed to verify; and
2
(b) the licensee is competent to verify the measuring instrument.
3
(4) An employee of a servicing licensee may verify a measuring
4
instrument if:
5
(a) the measuring instrument is of a class of measuring
6
instruments that the licensee is licensed to verify; and
7
(b) the employee is competent to verify the measuring
8
instrument.
9
18GI Who is permitted to verify utility meters?
10
A utility meter verifier may verify a utility meter.
11
Note:
Utility meter verifiers are appointed under Part XIII.
12
18GJ Register of verification marks
13
The Secretary must keep a register of prescribed particulars
14
relating to verification marks.
15
18GK Requirements for ve rification
16
The requirements for verification of a measuring instrument are:
17
(a) the measuring instrument must operate within the appropriate
18
limits of error that are permitted under the regulations; and
19
(b) the measuring instrument must be of an approved pattern.
20
18GL Standards of measure ments to be used for ve rification
21
(1) The determination of whether the requirements for verification
22
under section 18GK have been complied with must be made as
23
required by section 10.
24
(2) Subsection (1) does not apply if there is not an appropriate
25
standard of measurement in respect of which the measuring
26
instrument is to be verified.
27
Schedule 1 Trade measurement
24 National Measurement Amendment Bill 2008 No. , 2008
18GM Using a verification mark whe n not permitted to do so
1
Offence requiring fault element
2
(1) A person commits an offence if:
3
(a) the person marks a measuring instrument with a verification
4
mark; and
5
(b) the person is not permitted to do so.
6
Penalty: 200 penalty units.
7
Strict liability offence
8
(2) A person commits an offence if:
9
(a) the person marks a measuring instrument with a verification
10
mark; and
11
(b) the person is not permitted to do so.
12
Penalty: 40 penalty units.
13
(3) Subsection (2) is an offence of strict liability.
14
Note:
For strict liability, see section 6.1 of the Criminal Code.
15
18GN Sale or supply of measuring instrume nt marked by someone
16
not permitted to do so
17
Offence requiring fault element
18
(1) A person commits an offence if:
19
(a) the person sells or otherwise supplies a measuring instrument
20
for use for trade, or uses a measuring instrument for trade;
21
and
22
(b) the measuring instrument is marked with a verification mark;
23
and
24
(c) the person who marked the measuring instrument with the
25
verification mark was not permitted to do so.
26
Penalty: 200 penalty units.
27
Strict liability offence
28
(2) A person commits an offence if:
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 25
(a) the person sells or otherwise supplies a measuring instrument
1
for use for trade, or uses a measuring instrument for trade;
2
and
3
(b) the measuring instrument is marked with a verification mark;
4
and
5
(c) the person who marked the measuring instrument with the
6
verification mark was not permitted to do so.
7
Penalty: 40 penalty units.
8
(3) Subsection (2) is an offence of strict liability.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
18GO Misleading marks
11
Offence requiring fault element--marking a measuring instrument
12
with a misleading mark
13
(1) A person commits an offence if:
14
(a) the person marks a measuring instrument; and
15
(b) the mark is not a verification mark but is likely to give the
16
impression that it is a verification mark.
17
Penalty: 200 penalty units.
18
Strict liability offence--marking a measuring instrument with a
19
misleading mark
20
(2) A person commits an offence if:
21
(a) the person marks a measuring instrument; and
22
(b) the mark is not a verification mark but is likely to give the
23
impression that it is a verification mark.
24
Penalty: 40 penalty units.
25
Offence requiring fault element--using, selling or supplying a
26
measuring instrument misleadingly marked
27
(3) A person commits an offence if:
28
(a) the person:
29
(i) uses a measuring instrument for trade; or
30
Schedule 1 Trade measurement
26 National Measurement Amendment Bill 2008 No. , 2008
(ii) sells or otherwise supplies a measuring instrument for
1
use for trade; and
2
(b) the measuring instrument is marked; and
3
(c) the mark is not a verification mark but is likely to give the
4
impression that it is a verification mark.
5
Penalty: 200 penalty units.
6
Strict liability offence--using, selling or supplying a measuring
7
instrument misleadingly marked
8
(4) A person commits an offence if:
9
(a) the person:
10
(i) uses a measuring instrument for trade; or
11
(ii) sells or otherwise supplies a measuring instrument for
12
use for trade; and
13
(b) the measuring instrument is marked; and
14
(c) the mark is not a verification mark but is likely to give the
15
impression that it is a verification mark.
16
Penalty: 40 penalty units.
17
Offence requiring fault element--possessing instrument for making
18
misleading mark
19
(5) A person commits an offence if:
20
(a) the person has an instrument or other thing in his or her
21
possession; and
22
(b) the instrument or thing is designed for making a mark on a
23
measuring instrument that is not a verification mark but is
24
likely to give the impression that it is a verification mark.
25
Penalty: 200 penalty units.
26
Strict liability offence--possessing instrument for making
27
misleading mark
28
(6) A person commits an offence if:
29
(a) the person has an instrument or other thing in his or her
30
possession; and
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 27
(b) the instrument or thing is designed for making a mark on a
1
measuring instrument that is not a verification mark but is
2
likely to give the impression that it is a verification mark.
3
Penalty: 40 penalty units.
4
(7) Subsections (2), (4) and (6) are offences of strict liability.
5
Note:
For strict liability, see section 6.1 of the Criminal Code.
6
18GP Wrongful possession of an instrume nt for making a
7
verification mark
8
A person commits an offence if:
9
(a) the person has an instrument or other thing in his or her
10
possession; and
11
(b) the instrument or thing is designed for marking a measuring
12
instrument with a verification mark; and
13
(c) the person is not permitted to mark a measuring instrument
14
with that verification mark.
15
Penalty: 200 penalty units.
16
18GQ Obligation on repair of measuring instrument
17
Offence requiring fault element
18
(1) A person commits an offence if:
19
(a) the person uses a measuring instrument for trade; and
20
(b) the person adjusts or repairs the measuring instrument, or
21
causes the measuring instrument to be adjusted or repaired;
22
and
23
(c) in adjusting or repairing the measuring instrument, the
24
metrological performance of the measuring instrument is
25
affected; and
26
(d) if the person causes the measuring instrument to be adjusted
27
or repaired--the adjustment or repair of the measuring
28
instrument is not performed by a servicing licensee or an
29
employee of a servicing licensee or, in the case of a utility
30
meter, by a utility meter verifier; and
31
(e) the person does not obliterate, or cause to be obliterated, any
32
verification mark that the measuring instrument bears.
33
Schedule 1 Trade measurement
28 National Measurement Amendment Bill 2008 No. , 2008
Penalty: 200 penalty units.
1
Strict liability offence
2
(2) A person commits an offence if:
3
(a) the person uses a measuring instrument for trade; and
4
(b) the person adjusts or repairs the measuring instrument, or
5
causes the measuring instrument to be adjusted or repaired;
6
and
7
(c) in adjusting or repairing the measuring instrument, the
8
metrological performance of the measuring instrument is
9
affected; and
10
(d) if the person causes the measuring instrument to be adjusted
11
or repaired--the adjustment or repair of the measuring
12
instrument is not performed by a servicing licensee or an
13
employee of a servicing licensee or, in the case of a utility
14
meter, by a utility meter verifier; and
15
(e) the person does not obliterate, or cause to be obliterated, any
16
verification mark that the measuring instrument bears.
17
Penalty: 40 penalty units.
18
(3) Subsection (2) is an offence of strict liability.
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
Defence
21
(4) Subsections (1) and (2) do not apply if the effect on the measuring
22
instrument can be corrected by normal operational adjustment of
23
the measuring instrument.
24
Note:
A defendant bears an evidential burden in relation to the matter in
25
subsection (4), see subsection 13.3(3) of the Criminal Code.
26
Part V--General provisions on using measurement
27
in trade
28
29
18H Overview
30
Overview of Part
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 29
(1) This Part regulates the use of measurement in trade generally.
1
(2) This Part deals with:
2
(a) articles that must be sold by measurement
3
(sections 18HB and 18HC); and
4
(b) the units of measurement that must be used for
5
certain transactions (section 18HD); and
6
(c) the scale intervals of measuring instruments used
7
for certain articles (section 18HE); and
8
(d) unreliable methods of measurement
9
(section 18HF); and
10
(e) the use of certain measuring instruments
11
(section 18HG); and
12
(f) measuring instruments and methods of
13
measurement used in monitoring compliance with
14
this Act (section 18HH).
15
(3) All trade measurement is to be a net measurement
16
(section 18HI).
17
18HA When is an article packed in advance ready for sale?
18
An article is packed in advance ready for sale once the article is
19
packed in the package in which it will be sold, regardless of
20
whether the package is marked with a measurement or a
21
representation (including a statement as to price) by which the
22
measurement of the article can be worked out.
23
18HB Certain articles must be sold by measure ment--articles
24
packed in advance ready for sale
25
Offence requiring fault element--seller
26
(1) A person commits an offence if:
27
Schedule 1 Trade measurement
30 National Measurement Amendment Bill 2008 No. , 2008
(a) the person sells an article that is packed in advance ready for
1
sale; and
2
(b) the packed article is of a class that, by regulation, must be
3
sold by measurement; and
4
(c) either:
5
(i) the package in which the article is sold is marked with a
6
price that is not determined by measurement; or
7
(ii) there is a marking on or near the receptacle in which the
8
packed article is contained that is marked with a price
9
that is not determined by measurement.
10
Penalty: 100 penalty units.
11
Strict liability offence--seller
12
(2) A person commits an offence if:
13
(a) the person sells an article that is packed in advance ready for
14
sale; and
15
(b) the packed article is of a class that, by regulation, must be
16
sold by measurement; and
17
(c) either:
18
(i) the package in which the article is sold is marked with a
19
price that is not determined by measurement; or
20
(ii) there is a marking on or near the receptacle in which the
21
packed article is contained that is marked with a price
22
that is not determined by measurement.
23
Penalty: 20 penalty units.
24
Offence requiring fault element--possession, offer or exposure for
25
sale
26
(3) A person commits an offence if:
27
(a) the person possesses an article for sale, or offers or exposes it
28
for sale; and
29
(b) the article has been packed in advance ready for sale; and
30
(c) the article is of a class that, by regulation, must be sold by
31
measurement; and
32
(d) either:
33
(i) the package in which the article is sold is marked with a
34
price that is not determined by measurement; or
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 31
(ii) there is a marking on or near the receptacle in which the
1
packed article is contained that is marked with a price
2
that is not determined by measurement.
3
Penalty: 100 penalty units.
4
Strict liability offence--possession, offer or exposure for sale
5
(4) A person commits an offence if:
6
(a) the person possesses an article for sale, or offers or exposes it
7
for sale; and
8
(b) the article has been packed in advance ready for sale; and
9
(c) the article is of a class that, by regulation, must be sold by
10
measurement; and
11
(d) either:
12
(i) the package in which the article is sold is marked with a
13
price that is not determined by measurement; or
14
(ii) there is a marking on or near the receptacle in which the
15
packed article is contained that is marked with a price
16
that is not determined by measurement.
17
Penalty: 20 penalty units.
18
(5) Subsections (2) and (4) are offences of strict liability.
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
(6) Section 15.2 (extended geographical jurisdiction--category B) of
21
the Criminal Code applies to offences against subsections (1), (2),
22
(3) and (4).
23
18HC Certain articles must be sold by measure ment--other articles
24
Offence requiring fault element
25
(1) A person commits an offence if:
26
(a) the person sells an article that is not packed in advance ready
27
for sale; and
28
(b) the article is of a class that, by regulation, must be sold by
29
measurement; and
30
(c) the price of the article is not determined by measurement.
31
Penalty: 100 penalty units.
32
Schedule 1 Trade measurement
32 National Measurement Amendment Bill 2008 No. , 2008
Strict liability offence
1
(2) A person commits an offence if:
2
(a) the person sells an article that is not packed in advance ready
3
for sale; and
4
(b) the article is of a class that, by regulation, must be sold by
5
measurement; and
6
(c) the price of the article is not determined by measurement.
7
Penalty: 20 penalty units.
8
(3) Subsection (2) is an offence of strict liability.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
18HD Transactions based on measurement to be in prescribed units
11
of measurement
12
(1) A person commits an offence if:
13
(a) the person sells an article (whether packed in advance ready
14
for sale or otherwise) or a utility for a price determined by
15
reference to measurement of the article; and
16
(b) a unit of measurement is prescribed by the regulations for
17
that article or utility, or articles or utilities of that class, for
18
the purposes of this paragraph; and
19
(c) the price is not a price determined by reference to a
20
measurement of the article or utility in that unit of
21
measurement.
22
Penalty: 40 penalty units.
23
(2) Subsection (1) is an offence of strict liability.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
(3) Section 15.2 (extended geographical jurisdiction--category B) of
26
the Criminal Code applies to an offence against subsection (1).
27
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 33
18HE Measuring instruments used in transactions to have
1
prescribed scale inte rvals
2
(1) A person commits an offence if:
3
(a) the person sells an article (whether packed in advance ready
4
for sale or otherwise) or a utility for a price determined by
5
reference to measurement of the article; and
6
(b) the regulations prescribe scale intervals for measuring
7
instruments used in the measurement of the article or utility,
8
or articles or utilities of that class; and
9
(c) the price is not a price determined by reference to a
10
measurement of the article or utility using a measuring
11
instrument of those scale intervals.
12
Penalty: 40 penalty units.
13
(2) Subsection (1) is an offence of strict liability.
14
Note:
For strict liability, see section 6.1 of the Criminal Code.
15
(3) Section 15.2 (extended geographical jurisdiction--category B) of
16
the Criminal Code applies to an offence against subsection (1).
17
18HF Unreliable methods of measure ment
18
(1) The regulations may prescribe unreliable methods of measurement
19
of an article or utility or a class of articles or utilities.
20
(2) If the regulations make provision under subsection (1):
21
(a) the unreliable method of measurement must not be used in
22
working out the amount of any tax (however described)
23
payable by reference to measurement of the article or utility
24
or an article or utility of that class; and
25
(b) no contract, dealing or other transaction is to be made or
26
entered into that requires the unreliable method of
27
measurement to be used in measuring the article or utility or
28
an article or utility of that class for the purpose of
29
determining the consideration under that contract, dealing or
30
transaction; and
31
(c) to the extent that a contract is entered into requiring the
32
unreliable method to be used for that purpose, the contract is
33
null and void.
34
Schedule 1 Trade measurement
34 National Measurement Amendment Bill 2008 No. , 2008
18HG Limiting use of certain measuring instruments
1
Offence requiring fault element
2
(1) A person commits an offence if:
3
(a) a measuring instrument is of a class that, by regulation, must
4
only be used for prescribed purposes; and
5
(b) the person uses the measuring instrument for trade for
6
another purpose.
7
Penalty: 100 penalty units.
8
Strict liability offence
9
(2) A person commits an offence if:
10
(a) a measuring instrument is of a class that, by regulation, must
11
only be used for prescribed purposes; and
12
(b) the person uses the measuring instrument for trade for
13
another purpose.
14
Penalty: 20 penalty units.
15
(3) Subsection (2) is an offence of strict liability.
16
Note:
For strict liability, see section 6.1 of the Criminal Code.
17
18HH Measuring instruments and methods of measure ment used in
18
monitoring compliance with the Act
19
(1) The regulations may prescribe:
20
(a) measuring instruments, or classes of measuring instruments,
21
to be used by trade measurement inspectors in the
22
measurement of an article or utility, or a class of articles or
23
utilities, for the purpose of monitoring compliance with this
24
Act; and
25
(b) the methods of measurement of an article or utility, or a class
26
of articles or utilities, to be used by trade measurement
27
inspectors in monitoring compliance with this Act.
28
(2) All courts, judges and persons acting judicially must presume that:
29
(a) a measuring instrument or a class of measuring instruments
30
prescribed for an article or utility, or a class of articles or
31
utilities, will, if used correctly, produce an accurate
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 35
measurement of the article or utility, or articles or utilities of
1
that class; and
2
(b) the use of the method of measurement prescribed for an
3
article or utility, or a class of articles or utilities, will produce
4
an accurate measurement of the article or utility, or articles or
5
utilities of that class.
6
18HI Articles sold by measure ment to be sold by net measurement
7
Offence requiring fault element--sellers
8
(1) A person commits an offence if:
9
(a) the person sells an article (whether packed in advance ready
10
for sale or otherwise) for a price determined by reference to
11
measurement of the article; and
12
(b) the price is not determined by reference to the net
13
measurement of the article when sold or, if an alternative
14
time is prescribed in relation to the article, or articles of that
15
class, at that alternative time.
16
Penalty: 100 penalty units.
17
Strict liability offence--sellers
18
(2) A person commits an offence if:
19
(a) the person sells an article (whether packed in advance ready
20
for sale or otherwise) for a price determined by reference to
21
measurement of the article; and
22
(b) the price is not determined by reference to the net
23
measurement of the article when sold or, if an alternative
24
time is prescribed in relation to the article, or articles of that
25
class, at that alternative time.
26
Penalty: 20 penalty units.
27
Offence requiring fault element--possession, offer or exposure for
28
sale
29
(3) A person commits an offence if:
30
(a) the person possesses an article for sale, or offers or exposes it
31
for sale, at a particular time (whether packed in advance
32
Schedule 1 Trade measurement
36 National Measurement Amendment Bill 2008 No. , 2008
ready for sale or otherwise) for a price determined by
1
reference to measurement of the article; and
2
(b) the price is not determined by reference to the net
3
measurement of the article at that time or, if an alternative
4
time is prescribed in relation to the article, or articles of that
5
class, at that alternative time.
6
Penalty: 100 penalty units.
7
Strict liability offence--possession, offer or exposure for sale
8
(4) A person commits an offence if:
9
(a) the person possesses an article for sale, or offers or exposes it
10
for sale, at a particular time (whether packed in advance
11
ready for sale or otherwise) for a price determined by
12
reference to measurement of the article; and
13
(b) the price is not determined by reference to the net
14
measurement of the article at that time or, if an alternative
15
time is prescribed in relation to the article, or articles of that
16
class, at that alternative time.
17
Penalty: 20 penalty units.
18
(5) Subsections (2) and (4) are offences of strict liability.
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
(6) Section 15.2 (extended geographical jurisdiction--category B) of
21
the Criminal Code applies to offences against subsections (1), (2),
22
(3) and (4).
23
Part VI--Articles packed in advance ready for sale
24
Division 1--Overview of Part
25
18J Overvie w
26
Overview of Part
27
(1) This Part sets out the requirements for articles that are packed
28
in advance ready for sale.
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 37
(2) If an article is packed in advance ready for sale, the package
1
must be marked with certain information such as the name and
2
address of the packer. The use of certain prescribed
3
expressions in relation to measurement on the package is
4
prohibited (see Division 2).
5
(3) It is an offence to pack, import or sell or possess, offer or
6
expose for sale a package that contains less than the
7
measurement represented. There are different methods for
8
determining whether there is a shortfall. Division 3 deals with
9
one of these methods, the Average Quantity System.
10
Division 4 deals with cases where the existence of a shortfall
11
is determined using other methods.
12
(4) A permit may be obtained under Division 5 to import or sell
13
or possess, offer or expose for sale certain articles that have
14
been packed in advance ready for sale and that would
15
otherwise breach Division 2.
16
Division 2--Marking packed articles
17
Subdivision 2-A--Required package information
18
18JA Package must be marked with required package
19
information--packer
20
Offence requiring fault element
21
(1) A person commits an offence if:
22
(a) the person packs an article; and
23
(b) the article is packed in advance ready for sale; and
24
(c) the packed article is of a class for which one or more of the
25
following kinds of information is prescribed:
26
(i) the name and address of the person who packed the
27
article or on whose behalf the article was packed;
28
(ii) the measurement of the article;
29
(iii) any other information prescribed for the purposes of this
30
subparagraph; and
31
(d) the person does not mark the package with that information.
32
Schedule 1 Trade measurement
38 National Measurement Amendment Bill 2008 No. , 2008
Penalty: 100 penalty units.
1
Strict liability offence
2
(2) A person commits an offence if:
3
(a) the person packs an article; and
4
(b) the article is packed in advance ready for sale; and
5
(c) the packed article is of a class for which one or more of the
6
following kinds of information is prescribed:
7
(i) the name and address of the person who packed the
8
article or on whose behalf the article was packed;
9
(ii) the measurement of the article;
10
(iii) any other information prescribed for the purposes of this
11
subparagraph; and
12
(d) the person does not mark the package with that information.
13
Penalty: 20 penalty units.
14
(3) Subsection (2) is an offence of strict liability.
15
Note:
For strict liability, see section 6.1 of the Criminal Code.
16
(4) Subsections (1) and (2) do not apply as a result of
17
subparagraph (1)(c)(i) or (2)(c)(i) if the person knows that the
18
article is to be sold on the premises on which it was packed for the
19
consumption or use of the purchaser.
20
Note:
A defendant bears an evidential burden in relation to the matters in
21
subsection (4), see subsection 13.3(3) of the Criminal Code.
22
(5) Section 15.2 (extended geographical jurisdiction--category B) of
23
the Criminal Code applies to offences against subsections (1) and
24
(2).
25
18JB Package must be marked with require d package
26
information--importer
27
(1) A person commits an offence if:
28
(a) the person imports into Australia an article; and
29
(b) the article is packed in advance ready for sale; and
30
(c) the packed article is of a class for which one or more of the
31
following kinds of information is prescribed:
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 39
(i) the name and address of the person who packed the
1
article or on whose behalf the article was packed;
2
(ii) the measurement of the article;
3
(iii) any other information prescribed for the purposes of this
4
subparagraph; and
5
(d) the package is not marked with that information (whether
6
before the article is imported, or by the person after the
7
article is imported).
8
Penalty: 100 penalty units.
9
Strict liability offence
10
(2) A person commits an offence if:
11
(a) the person imports into Australia an article; and
12
(b) the article is packed in advance ready for sale; and
13
(c) the packed article is of a class for which one or more of the
14
following kinds of information is prescribed:
15
(i) the name and address of the person who packed the
16
article or on whose behalf the article was packed;
17
(ii) the measurement of the article;
18
(iii) any other information prescribed for the purposes of this
19
subparagraph; and
20
(d) the package is not marked with that information (whether
21
before the article is imported, or by the person after the
22
article is imported).
23
Penalty: 20 penalty units.
24
(3) Subsection (2) is an offence of strict liability.
25
Note:
For strict liability, see section 6.1 of the Criminal Code.
26
(4) Subsections (1) and (2) do not apply if a permit in relation to the
27
packed article has been issued under section 18JX.
28
Note:
A defendant bears an evidential burden in relation to the matters in
29
subsection (4), see subsection 13.3(3) of the Criminal Code.
30
Schedule 1 Trade measurement
40 National Measurement Amendment Bill 2008 No. , 2008
18JC Package must be marked with required package
1
information--seller
2
Offence requiring fault element
3
(1) A person commits an offence if:
4
(a) the person sells an article; and
5
(b) the article has been packed in advance ready for sale; and
6
(c) the packed article is of a class for which one or more of the
7
following kinds of information is prescribed:
8
(i) the name and address of the person who packed the
9
article or on whose behalf the article was packed;
10
(ii) the measurement of the article;
11
(iii) the price of the article;
12
(iv) any other information prescribed for the purposes of this
13
subparagraph; and
14
(d) the package is not marked with that information.
15
Penalty: 100 penalty units.
16
Strict liability offence
17
(2) A person commits an offence if:
18
(a) the person sells an article; and
19
(b) the article has been packed in advance ready for sale; and
20
(c) the packed article is of a class for which one or more of the
21
following kinds of information is prescribed:
22
(i) the name and address of the person who packed the
23
article or on whose behalf the article was packed;
24
(ii) the measurement of the article;
25
(iii) the price of the article;
26
(iv) any other information prescribed for the purposes of this
27
subparagraph; and
28
(d) the package is not marked with that information.
29
Penalty: 20 penalty units.
30
(3) Subsection (2) is an offence of strict liability.
31
Note:
For strict liability, see section 6.1 of the Criminal Code.
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 41
(4) Subsections (1) and (2) do not apply if a permit in relation to the
1
packed article has been issued under section 18JX.
2
Note:
A defendant bears an evidential burden in relation to the matters in
3
subsection (4), see subsection 13.3(3) of the Criminal Code.
4
(5) Subsections (1) and (2) do not apply as a result of
5
subparagraph (1)(c)(i) or (2)(c)(i) if:
6
(a) the article is sold on the premises on which it was packed for
7
the consumption or use of the purchaser; or
8
(b) the article was packed outside Australia.
9
Note:
A defendant bears an evidential burden in relation to the matters in
10
subsection (5), see subsection 13.3(3) of the Criminal Code.
11
(6) Section 15.2 (extended geographical jurisdiction--category B) of
12
the Criminal Code applies to offences against subsections (1) and
13
(2).
14
18JD Package must be marked with required package
15
information--possession, offer or exposure for sale
16
Offence requiring fault element
17
(1) A person commits an offence if:
18
(a) the person possesses an article for sale, or offers or exposes it
19
for sale; and
20
(b) the article has been packed in advance ready for sale; and
21
(c) the packed article is of a class for which one or more of the
22
following kinds of information is prescribed:
23
(i) the name and address of the person who packed the
24
article or on whose behalf the article was packed;
25
(ii) the measurement of the article;
26
(iii) the price of the article;
27
(iv) any other information prescribed for the purposes of this
28
subparagraph; and
29
(d) the package is not marked with that information.
30
Penalty: 100 penalty units.
31
Strict liability offence
32
(2) A person commits an offence if:
33
Schedule 1 Trade measurement
42 National Measurement Amendment Bill 2008 No. , 2008
(a) the person possesses an article for sale, or offers or exposes it
1
for sale; and
2
(b) the article has been packed in advance ready for sale; and
3
(c) the packed article is of a class for which one or more of the
4
following kinds of information is prescribed:
5
(i) the name and address of the person who packed the
6
article or on whose behalf the article was packed;
7
(ii) the measurement of the article;
8
(iii) the price of the article;
9
(iv) any other information prescribed for the purposes of this
10
subparagraph; and
11
(d) the package is not marked with that information.
12
Penalty: 20 penalty units.
13
(3) Subsection (2) is an offence of strict liability.
14
Note:
For strict liability, see section 6.1 of the Criminal Code.
15
(4) Subsections (1) and (2) do not apply if a permit in relation to the
16
packed article has been issued under section 18JX.
17
Note:
A defendant bears an evidential burden in relation to the matters in
18
subsection (4), see subsection 13.3(3) of the Criminal Code.
19
(5) Subsections (1) and (2) do not apply as a result of
20
subparagraph (1)(c)(i) or (2)(c)(i) if:
21
(a) the article is to be sold on the premises on which it was
22
packed for the consumption or use of the purchaser; or
23
(b) the article was packed outside Australia.
24
Note:
A defendant bears an evidential burden in relation to the matters in
25
subsection (5), see subsection 13.3(3) of the Criminal Code.
26
(6) Section 15.2 (extended geographical jurisdiction--category B) of
27
the Criminal Code applies to offences against subsections (1) and
28
(2).
29
18JE Package must be marked in prescribed manner
30
Offence requiring fault element
31
(1) A person commits an offence if:
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 43
(a) the person would commit an offence under section 18JA,
1
18JB, 18JC or 18JD unless the person marked a package with
2
information; and
3
(b) the manner in which that information is to be marked on the
4
package is prescribed by the regulations; and
5
(c) the person does not mark the package in that manner.
6
Penalty: 100 penalty units.
7
Strict liability offence
8
(2) A person commits an offence if:
9
(a) the person would commit an offence under section 18JA,
10
18JB, 18JC or 18JD unless the person marked a package with
11
information; and
12
(b) the manner in which that information is to be marked on the
13
package is prescribed by the regulations; and
14
(c) the person does not mark the package in that manner.
15
Penalty: 20 penalty units.
16
(3) Subsection (2) is an offence of strict liability.
17
Note:
For strict liability, see section 6.1 of the Criminal Code.
18
(4) Subsections (1) and (2) do not apply if a permit in relation to the
19
packed article has been issued under section 18JX.
20
Note:
A defendant bears an evidential burden in relation to the matters in
21
subsection (4), see subsection 13.3(3) of the Criminal Code.
22
Subdivision 2-B--Prohibited expressions
23
18JF Using prohibited expressions--packer
24
Offence requiring fault element
25
(1) A person commits an offence if:
26
(a) the person packs an article; and
27
(b) the article is packed in advance ready for sale; and
28
(c) the packed article is of a class for which a prohibited
29
expression in relation to the measurement of the article is
30
prescribed for the purposes of this paragraph; and
31
(d) the person marks the package with the prohibited expression.
32
Schedule 1 Trade measurement
44 National Measurement Amendment Bill 2008 No. , 2008
Penalty: 200 penalty units.
1
Strict liability offence
2
(2) A person commits an offence if:
3
(a) the person packs an article; and
4
(b) the article is packed in advance ready for sale; and
5
(c) the packed article is of a class for which a prohibited
6
expression in relation to the measurement of the article is
7
prescribed for the purposes of this paragraph; and
8
(d) the person marks the package with the prohibited expression.
9
Penalty: 40 penalty units.
10
(3) Subsection (2) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
(4) Section 15.2 (extended geographical jurisdiction--category B) of
13
the Criminal Code applies to offences against subsections (1) and
14
(2).
15
18JG Using prohibited expressions--seller
16
Offence requiring fault element
17
(1) A person commits an offence if:
18
(a) the person sells an article; and
19
(b) the article has been packed in advance ready for sale; and
20
(c) the packed article is of a class for which a prohibited
21
expression in relation to the measurement of the article is
22
prescribed for the purposes of this paragraph; and
23
(d) the package is marked with the prohibited expression.
24
Penalty: 200 penalty units.
25
Strict liability offence
26
(2) A person commits an offence if:
27
(a) the person sells an article; and
28
(b) the article has been packed in advance ready for sale; and
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 45
(c) the packed article is of a class for which a prohibited
1
expression in relation to the measurement of the article is
2
prescribed for the purposes of this paragraph; and
3
(d) the package is marked with the prohibited expression.
4
Penalty: 40 penalty units.
5
(3) Subsection (2) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
(4) Subsections (1) and (2) do not apply if a permit in relation to the
8
packed article has been issued under section 18JX.
9
Note:
A defendant bears an evidential burden in relation to the matters in
10
subsection (4), see subsection 13.3(3) of the Criminal Code.
11
(5) Section 15.2 (extended geographical jurisdiction--category B) of
12
the Criminal Code applies to offences against subsections (1) and
13
(2).
14
18JH Using prohibited expressions--possession, offer or exposure
15
for sale
16
Offence requiring fault element
17
(1) A person commits an offence if:
18
(a) the person possesses an article for sale, or offers or exposes it
19
for sale; and
20
(b) the article has been packed in advance ready for sale; and
21
(c) the packed article is of a class for which a prohibited
22
expression in relation to the measurement of the article is
23
prescribed for the purposes of this paragraph; and
24
(d) the package is marked with the prohibited expression.
25
Penalty: 200 penalty units.
26
Strict liability offence
27
(2) A person commits an offence if:
28
(a) the person possesses an article for sale, or offers or exposes it
29
for sale; and
30
(b) the article has been packed in advance ready for sale; and
31
Schedule 1 Trade measurement
46 National Measurement Amendment Bill 2008 No. , 2008
(c) the packed article is of a class for which a prohibited
1
expression in relation to the measurement of the article is
2
prescribed for the purposes of this paragraph; and
3
(d) the package is marked with the prohibited expression.
4
Penalty: 40 penalty units.
5
(3) Subsection (2) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
(4) Subsections (1) and (2) do not apply if a permit in relation to the
8
packed article has been issued under section 18JX.
9
Note:
A defendant bears an evidential burden in relation to the matters in
10
subsection (4), see subsection 13.3(3) of the Criminal Code.
11
(5) Section 15.2 (extended geographical jurisdiction--category B) of
12
the Criminal Code applies to offences against subsections (1) and
13
(2).
14
Division 3--Average Quantity System for packed articles
15
Subdivision 3-A--Preliminary
16
18JI Overvie w of Division
17
Overview of Division
18
(1) If an article is packed in advance ready for sale, the package
19
may be marked with an AQS mark.
20
(2) AQS stands for Average Quantity System. It is an
21
internationally recognised system for sampling and testing
22
groups of packages to determine whether, on average, they
23
contain the quantities with which they are marked.
24
(3) By marking a package with an AQS mark, a person represents
25
that if the package is included in a group of like packages
26
sampled and tested in accordance with AQS procedures, the
27
group will be found on average to contain a measurement at
28
least equal to the marked measurement.
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 47
(4) This Division contains offences to deal with cases where this
1
is not so (see Subdivision 3-C).
2
(5) This Division also contains offences to deal with cases where
3
misleading marks are used, or an AQS mark is placed in the
4
wrong place (see Subdivision 3-B).
5
Subdivision 3-B--AQS marks
6
18JJ What is an AQS mark?
7
An AQS mark is a mark prescribed by the regulations as an AQS
8
mark.
9
18JK AQS mark must be used in accordance with regulations
10
(1) The regulations may prescribe where an AQS mark is to be
11
marked.
12
Offence requiring fault element
13
(2) A person commits an offence if:
14
(a) the person marks an AQS mark on a package; and
15
(b) the marking is done otherwise than in accordance with the
16
regulations.
17
Penalty: 100 penalty units.
18
Strict liability offence
19
(3) A person commits an offence if:
20
(a) the person marks an AQS mark on a package; and
21
(b) the marking is done otherwise than in accordance with the
22
regulations.
23
Penalty: 20 penalty units.
24
(4) Subsection (3) is an offence of strict liability.
25
Note:
For strict liability, see section 6.1 of the Criminal Code.
26
Schedule 1 Trade measurement
48 National Measurement Amendment Bill 2008 No. , 2008
18JL Using misleading marks
1
Offence requiring fault element--packer
2
(1) A person commits an offence if the person:
3
(a) packs an article in advance ready for sale; and
4
(b) marks the article with a mark that is not an AQS mark, but
5
that is likely to give the impression that it is an AQS mark.
6
Penalty: 200 penalty units.
7
Strict liability offence--packer
8
(2) A person commits an offence if the person:
9
(a) packs an article in advance ready for sale; and
10
(b) marks the article with a mark that is not an AQS mark, but
11
that is likely to give the impression that it is an AQS mark.
12
Penalty: 40 penalty units.
13
Offence requiring fault element--possession, offer or exposure for
14
sale
15
(3) A person commits an offence if:
16
(a) the person possesses an article for sale, or offers or exposes it
17
for sale; and
18
(b) the article has been packed in advance ready for sale; and
19
(c) the article is marked with a mark that is not an AQS mark,
20
but that is likely to give the impression that it is an AQS
21
mark.
22
Penalty: 200 penalty units.
23
Strict liability offence--possession, offer or exposure for sale
24
(4) A person commits an offence if:
25
(a) the person possesses an article for sale, or offers or exposes it
26
for sale; and
27
(b) the article has been packed in advance ready for sale; and
28
(c) the article is marked with a mark that is not an AQS mark,
29
but that is likely to give the impression that it is an AQS
30
mark.
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 49
Penalty: 40 penalty units.
1
Offence requiring fault element--seller
2
(5) A person commits an offence if:
3
(a) the person sells an article; and
4
(b) the article has been packed in advance ready for sale; and
5
(c) the article is marked with a mark that is not an AQS mark,
6
but that is likely to give the impression that it is an AQS
7
mark.
8
Penalty: 200 penalty units.
9
Strict liability offence--seller
10
(6) A person commits an offence if:
11
(a) the person sells an article; and
12
(b) the article has been packed in advance ready for sale; and
13
(c) the article is marked with a mark that is not an AQS mark,
14
but that is likely to give the impression that it is an AQS
15
mark.
16
Penalty: 40 penalty units.
17
(7) Subsections (2), (4) and (6) are offences of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
Subdivision 3-C--Shortfall
20
18JM Shortfall offence--packer
21
Offence requiring fault element
22
(1) A person commits an offence if:
23
(a) the person packs an article; and
24
(b) the article is packed in advance ready for sale; and
25
(c) the package is marked with an AQS mark; and
26
(d) the person:
27
(i) marks the package with a measurement or minimum
28
measurement of the article contained in the package; or
29
Schedule 1 Trade measurement
50 National Measurement Amendment Bill 2008 No. , 2008
(ii) marks the package with a representation (including a
1
statement as to price) by which the measurement of the
2
article contained in the package can be worked out; or
3
(iii) otherwise, by any document or statement, represents the
4
measurement or minimum measurement of the article
5
contained in the package, or makes a representation
6
(including a statement as to price) by which the
7
measurement of the article contained in the package can
8
be worked out; and
9
(e) the package is one of a group of packages of the same kind
10
that, once packed, are on the same premises or in the same
11
vehicle; and
12
(f) the number of packages in the group equals or exceeds the
13
AQS threshold; and
14
(g) a sample of the group, selected in accordance with AQS
15
sampling procedures, fails testing in accordance with AQS
16
test procedures.
17
Penalty: 200 penalty units.
18
Strict liability offence
19
(2) A person commits an offence if:
20
(a) the person packs an article; and
21
(b) the article is packed in advance ready for sale; and
22
(c) the package is marked with an AQS mark; and
23
(d) the person:
24
(i) marks the package with a measurement or minimum
25
measurement of the article contained in the package; or
26
(ii) marks the package with a representation (including a
27
statement as to price) by which the measurement of the
28
article contained in the package can be worked out; or
29
(iii) otherwise, by any document or statement, represents the
30
measurement or minimum measurement of the article
31
contained in the package, or makes a representation
32
(including a statement as to price) by which the
33
measurement of the article contained in the package can
34
be worked out; and
35
(e) the package is one of a group of packages of the same kind
36
that, once packed, are on the same premises or in the same
37
vehicle; and
38
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 51
(f) the number of packages in the group equals or exceeds the
1
AQS threshold; and
2
(g) a sample of the group, selected in accordance with AQS
3
sampling procedures, fails testing in accordance with AQS
4
test procedures.
5
Penalty: 40 penalty units.
6
(3) Subject to subsection (4), subsection (2) is an offence of strict
7
liability.
8
Note:
For strict liability, see section 6.1 of the Criminal Code.
9
(4) Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and
10
(2)(f).
11
Note:
For absolute liability, see section 6.2 of the Criminal Code.
12
(5) Section 15.2 (extended geographical jurisdiction--category B) of
13
the Criminal Code applies to offences against subsections (1) and
14
(2).
15
18JN Shortfall offence--importer
16
Offence requiring fault element
17
(1) A person commits an offence if:
18
(a) the person imports into Australia an article; and
19
(b) the article has been packed in advance ready for sale; and
20
(c) the package is marked with an AQS mark; and
21
(d) one of the following circumstances exist:
22
(i) the package is marked with a measurement or minimum
23
measurement of the article contained in the package;
24
(ii) the package is marked with a representation (including a
25
statement as to price) by which the measurement of the
26
article contained in the package can be worked out;
27
(iii) a representation is otherwise made, by any document or
28
statement, about the measurement or minimum
29
measurement of the article contained in the package;
30
(iv) a representation is otherwise made (including a
31
statement as to price) by which the measurement of the
32
article contained in the package can be worked out; and
33
Schedule 1 Trade measurement
52 National Measurement Amendment Bill 2008 No. , 2008
(e) the package is one of a group of packages of the same kind
1
that, once imported, are on the same premises or in the same
2
vehicle; and
3
(f) the number of packages in the group equals or exceeds the
4
AQS threshold; and
5
(g) a sample of the group, selected in accordance with AQS
6
sampling procedures, fails testing in accordance with AQS
7
test procedures.
8
Penalty: 200 penalty units.
9
Strict liability offence
10
(2) A person commits an offence if:
11
(a) the person imports into Australia an article; and
12
(b) the article has been packed in advance ready for sale; and
13
(c) the package is marked with an AQS mark; and
14
(d) one of the following circumstances exist:
15
(i) the package is marked with a measurement or minimum
16
measurement of the article contained in the package;
17
(ii) the package is marked with a representation (including a
18
statement as to price) by which the measurement of the
19
article contained in the package can be worked out;
20
(iii) a representation is otherwise made, by any document or
21
statement, about the measurement or minimum
22
measurement of the article contained in the package;
23
(iv) a representation is otherwise made (including a
24
statement as to price) by which the measurement of the
25
article contained in the package can be worked out; and
26
(e) the package is one of a group of packages of the same kind
27
that, once imported, are on the same premises or in the same
28
vehicle; and
29
(f) the number of packages in the group equals or exceeds the
30
AQS threshold; and
31
(g) a sample of the group, selected in accordance with AQS
32
sampling procedures, fails testing in accordance with AQS
33
test procedures.
34
Penalty: 40 penalty units.
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 53
(3) Subject to subsection (4), subsection (2) is an offence of strict
1
liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
(4) Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and
4
(2)(f).
5
Note:
For absolute liability, see section 6.2 of the Criminal Code.
6
18JO Shortfall offence--possession, offer or exposure for sale
7
Offence requiring fault element
8
(1) A person commits an offence if:
9
(a) the person possesses an article for sale, or offers or exposes it
10
for sale; and
11
(b) the article has been packed in advance ready for sale; and
12
(c) the package is marked with an AQS mark; and
13
(d) the package is marked with:
14
(i) a measurement or minimum measurement of the article
15
contained in the package; or
16
(ii) a representation (including a statement as to price) by
17
which the measurement of the article contained in the
18
package can be worked out; and
19
(e) the package is one of a group of packages of the same kind
20
that, at the time of possession, offer or exposure, are on the
21
same premises or in the same vehicle; and
22
(f) the number of packages in the group equals or exceeds the
23
AQS threshold; and
24
(g) a sample of the group, selected in accordance with AQS
25
sampling procedures, fails testing in accordance with AQS
26
test procedures.
27
Penalty: 200 penalty units.
28
Strict liability offence
29
(2) A person commits an offence if:
30
(a) the person possesses an article for sale, or offers or exposes it
31
for sale; and
32
(b) the article has been packed in advance ready for sale; and
33
Schedule 1 Trade measurement
54 National Measurement Amendment Bill 2008 No. , 2008
(c) the package is marked with an AQS mark; and
1
(d) the package is marked with:
2
(i) a measurement or minimum measurement of the article
3
contained in the package; or
4
(ii) a representation (including a statement as to price) by
5
which the measurement of the article contained in the
6
package can be worked out; and
7
(e) the package is one of a group of packages of the same kind
8
that, at the time of possession, offer or exposure, are on the
9
same premises or in the same vehicle; and
10
(f) the number of packages in the group equals or exceeds the
11
AQS threshold; and
12
(g) a sample of the group, selected in accordance with AQS
13
sampling procedures, fails testing in accordance with AQS
14
test procedures.
15
Penalty: 40 penalty units.
16
(3) Subject to subsection (4), subsection (2) is an offence of strict
17
liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
(4) Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and
20
(2)(f).
21
Note:
For absolute liability, see section 6.2 of the Criminal Code.
22
(5) Section 15.2 (extended geographical jurisdiction--category B) of
23
the Criminal Code applies to offences against subsections (1) and
24
(2).
25
18JP Shortfall offence--sale
26
Offence requiring fault element
27
(1) A person commits an offence if:
28
(a) the person sells an article; and
29
(b) the article has been packed in advance ready for sale; and
30
(c) the package is marked with an AQS mark; and
31
(d) the package is marked with:
32
(i) a measurement or minimum measurement of the article
33
contained in the package; or
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 55
(ii) a representation (including a statement as to price) by
1
which the measurement of the article contained in the
2
package can be worked out; and
3
(e) the package is one of a group of packages of the same kind
4
that, at the time of sale, are on the same premises or in the
5
same vehicle; and
6
(f) the number of packages in the group equals or exceeds the
7
AQS threshold; and
8
(g) a sample of the group, selected in accordance with AQS
9
sampling procedures, fails testing in accordance with AQS
10
test procedures.
11
Penalty: 200 penalty units.
12
Strict liability offence
13
(2) A person commits an offence if:
14
(a) the person sells an article; and
15
(b) the article has been packed in advance ready for sale; and
16
(c) the package is marked with an AQS mark; and
17
(d) the package is marked with:
18
(i) a measurement or minimum measurement of the article
19
contained in the package; or
20
(ii) a representation (including a statement as to price) by
21
which the measurement of the article contained in the
22
package can be worked out; and
23
(e) the package is one of a group of packages of the same kind
24
that, at the time of sale, are on the same premises or in the
25
same vehicle; and
26
(f) the number of packages in the group equals or exceeds the
27
AQS threshold; and
28
(g) a sample of the group, selected in accordance with AQS
29
sampling procedures, fails testing in accordance with AQS
30
test procedures.
31
Penalty: 40 penalty units.
32
(3) Subject to subsection (4), subsection (2) is an offence of strict
33
liability.
34
Note:
For strict liability, see section 6.1 of the Criminal Code.
35
Schedule 1 Trade measurement
56 National Measurement Amendment Bill 2008 No. , 2008
(4) Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and
1
(2)(f).
2
Note:
For absolute liability, see section 6.2 of the Criminal Code.
3
(5) Section 15.2 (extended geographical jurisdiction--category B) of
4
the Criminal Code applies to offences against subsections (1) and
5
(2).
6
Division 4--Packed articles not marked with AQS mark
7
Subdivision 4-A--Overview of Division
8
18JQ Overview
9
Overview of Division
10
(1) If an article that has been packed in advance ready for sale is
11
not marked with an AQS mark, the existence of a shortfall is
12
determined using a nationally recognised system of sampling
13
and testing groups of packages.
14
(2) If the group of packages is too small to allow meaningful
15
testing in this way national single article test procedures are
16
used.
17
(3) This Division contains a series of shortfall offences based on
18
these procedures for determining whether there is a shortfall.
19
Subdivision 4-B--Shortfall offences
20
18JR When is the re a shortfall in the measurement of a packed
21
article?
22
There is a shortfall in the measurement of an article that has been
23
packed in advance ready for sale and that is not marked with an
24
AQS mark if:
25
(a) all of the following conditions are met:
26
(i) the package is one of a group of packages of the same
27
kind that are on the same premises or in the same
28
vehicle;
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 57
(ii) the number of packages in the group equals or exceeds
1
the national test threshold;
2
(iii) a sample of the group, selected in accordance with
3
national sampling procedures, is tested in accordance
4
with national group test procedures and the sample fails;
5
or
6
(b) the package is tested in accordance with national single
7
article test procedures and the package fails.
8
18JS Shortfall offence--packer
9
Offence requiring fault element
10
(1) A person commits an offence if:
11
(a) the person packs an article; and
12
(b) the article is packed in advance ready for sale; and
13
(c) the package is not marked with an AQS mark; and
14
(d) the person:
15
(i) marks the package with a measurement or minimum
16
measurement of the article contained in the package; or
17
(ii) marks the package with a representation (including a
18
statement as to price) by which the measurement of the
19
article contained in the package can be worked out; or
20
(iii) otherwise, by any document or statement, represents the
21
measurement or minimum measurement of the article
22
contained in the package, or makes a representation
23
(including a statement as to price) by which the
24
measurement of the article contained in the package can
25
be worked out; and
26
(e) there is a shortfall in the measurement of the article contained
27
in the package.
28
Penalty: 200 penalty units.
29
Strict liability offence
30
(2) A person commits an offence if:
31
(a) the person packs an article; and
32
(b) the article is packed in advance ready for sale; and
33
(c) the package is not marked with an AQS mark; and
34
Schedule 1 Trade measurement
58 National Measurement Amendment Bill 2008 No. , 2008
(d) the person:
1
(i) marks the package with a measurement or minimum
2
measurement of the article contained in the package; or
3
(ii) marks the package with a representation (including a
4
statement as to price) by which the measurement of the
5
article contained in the package can be worked out; or
6
(iii) otherwise, by any document or statement, represents the
7
measurement or minimum measurement of the article
8
contained in the package, or makes a representation
9
(including a statement as to price) by which the
10
measurement of the article contained in the package can
11
be worked out; and
12
(e) there is a shortfall in the measurement of the article contained
13
in the package.
14
Penalty: 40 penalty units.
15
(3) Subject to subsection (4), subsection (2) is an offence of strict
16
liability.
17
Note:
For strict liability, see section 6.1 of the Criminal Code.
18
(4) Absolute liability applies to subparagraphs (a)(i) and (ii) of the
19
definition of shortfall in section 18JR as applied for the purposes
20
of paragraphs (1)(e) and (2)(e).
21
Note:
For absolute liability, see section 6.2 of the Criminal Code.
22
(5) Section 15.2 (extended geographical jurisdiction--category B) of
23
the Criminal Code applies to offences against subsections (1) and
24
(2).
25
18JT Shortfall offence--importer
26
Offence requiring fault element
27
(1) A person commits an offence if:
28
(a) the person imports into Australia an article; and
29
(b) the article is packed in advance ready for sale; and
30
(c) the package is not marked with an AQS mark; and
31
(d) one of the following circumstances exist:
32
(i) the package is marked with a measurement or minimum
33
measurement of the article contained in the package;
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 59
(ii) the package is marked with a representation (including a
1
statement as to price) by which the measurement of the
2
article contained in the package can be worked out;
3
(iii) a representation is otherwise made, by any document or
4
statement, about the measurement or minimum
5
measurement of the article contained in the package;
6
(iv) a representation is otherwise made (including a
7
statement as to price) by which the measurement of the
8
article contained in the package can be worked out; and
9
(e) there is a shortfall in the measurement of the article contained
10
in the package.
11
Penalty: 200 penalty units.
12
Strict liability offence
13
(2) A person commits an offence if:
14
(a) the person imports into Australia an article; and
15
(b) the article is packed in advance ready for sale; and
16
(c) the package is not marked with an AQS mark; and
17
(d) one of the following circumstances exist:
18
(i) the package is marked with a measurement or minimum
19
measurement of the article contained in the package;
20
(ii) the package is marked with a representation (including a
21
statement as to price) by which the measurement of the
22
article contained in the package can be worked out;
23
(iii) a representation is otherwise made, by any document or
24
statement, about the measurement or minimum
25
measurement of the article contained in the package;
26
(iv) a representation is otherwise made (including a
27
statement as to price) by which the measurement of the
28
article contained in the package can be worked out; and
29
(e) there is a shortfall in the measurement of the article contained
30
in the package.
31
Penalty: 40 penalty units.
32
(3) Subject to subsection (4), subsection (2) is an offence of strict
33
liability.
34
Note:
For strict liability, see section 6.1 of the Criminal Code.
35
Schedule 1 Trade measurement
60 National Measurement Amendment Bill 2008 No. , 2008
(4) Absolute liability applies to subparagraphs (a)(i) and (ii) of the
1
definition of shortfall in section 18JR as applied for the purposes
2
of paragraphs (1)(e) and (2)(e).
3
Note:
For absolute liability, see section 6.2 of the Criminal Code.
4
18JU Shortfall offence--possession, offer or exposure for sale
5
Offence requiring fault element--marking on package
6
(1) A person commits an offence if:
7
(a) the person possesses an article for sale, or offers or exposes it
8
for sale; and
9
(b) the article has been packed in advance ready for sale; and
10
(c) the package is not marked with an AQS mark; and
11
(d) the package is marked with:
12
(i) a measurement or minimum measurement of the article
13
contained in the package; or
14
(ii) a representation (including a statement as to price) by
15
which the measurement of the article contained in the
16
package can be worked out; and
17
(e) there is a shortfall in the measurement of the article contained
18
in the package.
19
Penalty: 200 penalty units.
20
Strict liability offence--marking on package
21
(2) A person commits an offence if:
22
(a) the person possesses an article for sale, or offers or exposes it
23
for sale; and
24
(b) the article has been packed in advance ready for sale; and
25
(c) the package is not marked with an AQS mark; and
26
(d) the package is marked with:
27
(i) a measurement or minimum measurement of the article
28
contained in the package; or
29
(ii) a representation (including a statement as to price) by
30
which the measurement of the article contained in the
31
package can be worked out; and
32
(e) there is a shortfall in the measurement of the article contained
33
in the package.
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 61
Penalty: 40 penalty units.
1
Offence requiring fault element--marking on receptacle containing
2
package
3
(3) A person commits an offence if:
4
(a) the person possesses an article for sale, or offers or exposes it
5
for sale; and
6
(b) the article has been packed in advance ready for sale; and
7
(c) the package is not marked with an AQS mark; and
8
(d) the packed article is contained in a receptacle; and
9
(e) either of the following is marked on or near the receptacle:
10
(i) a measurement or minimum measurement of the article
11
contained in the package;
12
(ii) a representation (including a statement as to price) by
13
which the measurement of the article contained in the
14
package can be worked out; and
15
(f) there is a shortfall in the measurement of the article contained
16
in the package.
17
Penalty: 200 penalty units.
18
Strict liability offence--marking on receptacle containing package
19
(4) A person commits an offence if:
20
(a) the person possesses an article for sale, or offers or exposes it
21
for sale; and
22
(b) the article has been packed in advance ready for sale; and
23
(c) the package is not marked with an AQS mark; and
24
(d) the packed article is contained in a receptacle; and
25
(e) either of the following is marked on or near the receptacle:
26
(i) a measurement or minimum measurement of the article
27
contained in the package;
28
(ii) a representation (including a statement as to price) by
29
which the measurement of the article contained in the
30
package can be worked out; and
31
(f) there is a shortfall in the measurement of the article contained
32
in the package.
33
Penalty: 40 penalty units.
34
Schedule 1 Trade measurement
62 National Measurement Amendment Bill 2008 No. , 2008
(5) Subject to subsection (6), subsections (2) and (4) are offences of
1
strict liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
(6) Absolute liability applies to subparagraphs (a)(i) and (ii) of the
4
definition of shortfall in section 18JR as applied for the purposes
5
of paragraphs (1)(e), (2)(e), (3)(f) and (4)(f).
6
Note:
For absolute liability, see section 6.2 of the Criminal Code.
7
(7) Section 15.2 (extended geographical jurisdiction--category B) of
8
the Criminal Code applies to offences against subsections (1), (2),
9
(3) and (4).
10
18JV Shortfall offence--seller
11
Offence requiring fault element--marking on package
12
(1) A person commits an offence if:
13
(a) the person sells an article; and
14
(b) the article has been packed in advance ready for sale; and
15
(c) the package is not marked with an AQS mark; and
16
(d) the package is marked with:
17
(i) a measurement or minimum measurement of the article
18
contained in the package; or
19
(ii) a representation (including a statement as to price) by
20
which the measurement of the article contained in the
21
package can be worked out; and
22
(e) there is a shortfall in the measurement of the article contained
23
in the package.
24
Penalty: 200 penalty units.
25
Strict liability offence--marking on package
26
(2) A person commits an offence if:
27
(a) the person sells an article; and
28
(b) the article has been packed in advance ready for sale; and
29
(c) the package is not marked with an AQS mark; and
30
(d) the package is marked with:
31
(i) a measurement or minimum measurement of the article
32
contained in the package; or
33
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 63
(ii) a representation (including a statement as to price) by
1
which the measurement of the article contained in the
2
package can be worked out; and
3
(e) there is a shortfall in the measurement of the article contained
4
in the package.
5
Penalty: 40 penalty units.
6
Offence requiring fault element--marking on receptacle containing
7
package
8
(3) A person commits an offence if:
9
(a) the person sells an article; and
10
(b) the article has been packed in advance ready for sale; and
11
(c) the package is not marked with an AQS mark; and
12
(d) the packed article is contained in a receptacle; and
13
(e) either of the following is marked on or near the receptacle:
14
(i) a measurement or minimum measurement of the article
15
contained in the package;
16
(ii) a representation (including a statement as to price) by
17
which the measurement of the article contained in the
18
package can be worked out; and
19
(f) there is a shortfall in the measurement of the article contained
20
in the package.
21
Penalty: 200 penalty units.
22
Strict liability offence--marking on receptacle containing package
23
(4) A person commits an offence if:
24
(a) the person sells an article; and
25
(b) the article has been packed in advance ready for sale; and
26
(c) the package is not marked with an AQS mark; and
27
(d) the packed article is contained in a receptacle; and
28
(e) either of the following is marked on or near the receptacle:
29
(i) a measurement or minimum measurement of the article
30
contained in the package;
31
(ii) a representation (including a statement as to price) by
32
which the measurement of the article contained in the
33
package can be worked out; and
34
Schedule 1 Trade measurement
64 National Measurement Amendment Bill 2008 No. , 2008
(f) there is a shortfall in the measurement of the article contained
1
in the package.
2
Penalty: 40 penalty units.
3
(5) Subject to subsection (6), subsections (2) and (4) are offences of
4
strict liability.
5
Note:
For strict liability, see section 6.1 of the Criminal Code.
6
(6) Absolute liability applies to subparagraphs (a)(i) and (ii) of the
7
definition of shortfall in section 18JR as applied for the purposes
8
of paragraphs (1)(e), (2)(e), (3)(f) and (4)(f).
9
Note:
For absolute liability, see section 6.2 of the Criminal Code.
10
(7) Section 15.2 (extended geographical jurisdiction--category B) of
11
the Criminal Code applies to offences against subsections (1), (2),
12
(3) and (4).
13
Division 5--Permits
14
18JW Ove rvie w
15
Overview of Division
16
(1) This Division creates a system of permits for the sale or
17
possession, offer or exposure for the sale of certain articles
18
that do not include required information on the package in the
19
manner prescribed or that contain prohibited expressions on
20
the package.
21
(2) Permits may only be given for breaches that are minor and not
22
misleading and where obliging the rectification of the breach
23
would impose unnecessary costs on business.
24
(3) Persons selling articles for which permits have been issued
25
must give a copy of the permit to a purchaser who intends to
26
on-sell the article.
27
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 65
18JX Pe rmits for ce rtain packed articles
1
(1) The Secretary may, in writing, issue a permit for the importation of
2
an article packed in advance ready for sale if either of the
3
following apply:
4
(a) the package does not include information of the kind
5
prescribed for the purposes of section 18JB;
6
(b) the package is not marked with information of the kind
7
prescribed for the purposes of section 18JB in the manner
8
prescribed for the purposes of section 18JE.
9
(2) The Secretary may, in writing, issue a permit for the sale of an
10
article packed in advance ready for sale to which any of the
11
following apply:
12
(a) the package does not include information of the kind
13
prescribed for the purposes of section 18JC;
14
(b) the package is not marked with information of the kind
15
prescribed for the purposes of section 18JC in the manner
16
prescribed for the purposes of section 18JE;
17
(c) the package includes a prohibited expression of the kind
18
prescribed for the purposes of section 18JG.
19
(3) The Secretary may, in writing, issue a permit for the possession for
20
sale, or offer or exposure for sale, of an article packed in advance
21
ready for sale to which any of the following apply:
22
(a) the package does not include information of the kind
23
prescribed for the purposes of section 18JD;
24
(b) the package is not marked with information of the kind
25
prescribed for the purposes of section 18JD in the manner
26
prescribed for the purposes of section 18JE;
27
(c) the package includes a prohibited expression of the kind
28
prescribed for the purposes of section 18JH.
29
(4) The Secretary may only issue a permit under this section if the
30
Secretary is satisfied that:
31
(a) the breach is minor in nature; and
32
(b) the markings on the package are not misleading; and
33
(c) requiring rectification of the breach would impose an
34
unnecessary cost on business.
35
Schedule 1 Trade measurement
66 National Measurement Amendment Bill 2008 No. , 2008
(5) A permit under this section may be issued subject to such terms
1
and conditions as are specified in the permit.
2
(6) Without limiting subsection (5), a permit under this section is
3
limited to the importation, sale, possession for sale or offer or
4
exposure for sale of the packed article within a specified period of
5
no more than 6 months.
6
(7) The Secretary may, by notice in writing, given to the person to
7
whom the permit was issued, extend that period.
8
(8) The Secretary may amend or cancel a permit by notice in writing
9
given to the person to whom the permit was issued.
10
(9) If:
11
(a) a person sells a packed article for which a permit has been
12
issued under this section; and
13
(b) the purchaser of the packed article intends to sell the packed
14
article to another person;
15
the first-mentioned person must give a copy of the permit and any
16
notices under subsection (7) or (8) received by that person to the
17
purchaser.
18
Penalty for a contravention of this subsection: 50 penalty units.
19
18JY Register of permits
20
(1) The Secretary must keep a register of prescribed particulars
21
relating to permits issued under section 18JX.
22
(2) The register must be published on the internet.
23
18JZ Evidentiary certificate
24
In any proceedings (including disciplinary proceedings) under this
25
Act, a document, certified by the Secretary, and purporting to be a
26
copy of a permit issued under this Division, is admissible as prima
27
facie evidence of:
28
(a) the fact that the permit was issued; and
29
(b) the day on which or the period during which it was in force;
30
and
31
(c) the conditions on which the permit was in force.
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 67
Part VII--Other articles
1
2
18K Overview
3
Overview of Part
4
(1) This Part contains requirements in relation to articles that are
5
sold for a price determined by reference to the measurement
6
of the article.
7
(2) If the purchaser is present at the point of sale, measurements
8
must be made in such a way that the purchaser can see the
9
measurement of the article. A seller who does not do so
10
commits an offence (see section 18KA).
11
(3) If the purchaser is not present at the point of sale, the seller
12
must give the purchaser a written statement of the
13
measurement of the article on delivery. It is an offence if the
14
seller does not do so (see section 18KB).
15
(4) It is an offence if a person sells packaging for an article and
16
charges a price per unit of measurement of the packaging that
17
is determined in the same way as, or directly or indirectly by
18
reference to, the price per unit of measurement of the article
19
(see section 18KC).
20
(5) The Part also contains a shortfall offence (see section 18KD).
21
18KA Measure ment must be open to scrutiny if purchaser present
22
Offence requiring fault element
23
(1) A person commits an offence if:
24
(a) the person sells an article for a price determined by reference
25
to measurement of the article; and
26
(b) the article is not packed in advance ready for sale; and
27
(c) the purchaser is present at the point of sale; and
28
(d) the measurement is made in either of the following
29
circumstances:
30
Schedule 1 Trade measurement
68 National Measurement Amendment Bill 2008 No. , 2008
(i) the measuring process is not readily visible to the
1
purchaser;
2
(ii) any reading or information displayed by the measuring
3
instrument is not readily visible to the purchaser.
4
Penalty: 200 penalty units.
5
Strict liability offence
6
(2) A person commits an offence if:
7
(a) the person sells an article for a price determined by reference
8
to measurement of the article; and
9
(b) the article is not packed in advance ready for sale; and
10
(c) the purchaser is present at the point of sale; and
11
(d) the measurement is made in either of the following
12
circumstances:
13
(i) the measuring process is not readily visible to the
14
purchaser;
15
(ii) any reading or information displayed by the measuring
16
instrument is not readily visible to the purchaser.
17
Penalty: 40 penalty units.
18
(3) Subsection (2) is an offence of strict liability.
19
Note:
For strict liability, see section 6.1 of the Criminal Code.
20
18KB Purchaser must receive invoice stating measure ment if not
21
present at sale
22
Offence requiring fault element
23
(1) A person commits an offence if:
24
(a) the person sells an article for a price determined by reference
25
to measurement of the article; and
26
(b) the article is not packed in advance ready for sale; and
27
(c) the purchaser is not present at the point of sale; and
28
(d) the person does not give the purchaser a written statement of
29
the measurement of the article at the time the article is
30
delivered.
31
Penalty: 200 penalty units.
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 69
Strict liability offence
1
(2) A person commits an offence if:
2
(a) the person sells an article for a price determined by reference
3
to measurement of the article; and
4
(b) the article is not packed in advance ready for sale; and
5
(c) the purchaser is not present at the point of sale; and
6
(d) the person does not give the purchaser a written statement of
7
the measurement of the article at the time the article is
8
delivered.
9
Penalty: 40 penalty units.
10
(3) Subsection (2) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
18KC Articles sold by measurement--price of packaging
13
Offence requiring fault element
14
(1) A person commits an offence if:
15
(a) the person sells an article for a price determined by reference
16
to measurement of the article; and
17
(b) the article is not packed in advance ready for sale; and
18
(c) the person makes packaging available when the article is
19
sold; and
20
(d) the person charges a price for the packaging; and
21
(e) the price per unit of measurement of the packaging is
22
determined in the same way as, or directly or indirectly by
23
reference to, the price per unit of measurement of the article.
24
Penalty: 200 penalty units.
25
Strict liability offence
26
(2) A person commits an offence if:
27
(a) the person sells an article for a price determined by reference
28
to measurement of the article; and
29
(b) the article is not packed in advance ready for sale; and
30
(c) the person makes packaging available when the article is
31
sold; and
32
Schedule 1 Trade measurement
70 National Measurement Amendment Bill 2008 No. , 2008
(d) the person charges a price for the packaging; and
1
(e) the price per unit of measurement of the packaging is
2
determined in the same way as, or directly or indirectly by
3
reference to, the price per unit of measurement of the article.
4
Penalty: 40 penalty units.
5
(3) Subsection (2) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
18KD Shortfall offence--sale
8
Offence requiring fault element
9
(1) A person commits an offence if:
10
(a) the person sells an article; and
11
(b) the article has not been packed in advance ready for sale; and
12
(c) before or at the time of sale, the person:
13
(i) makes a representation about the measurement of the
14
article; or
15
(ii) makes a representation (including a statement as to
16
price) by which the measurement of the article can be
17
worked out; and
18
(d) the measurement of the article sold is less than that
19
represented; and
20
(e) in the case where the representation is made before the time
21
of sale--the representation is not corrected before or at the
22
time of sale.
23
Penalty: 200 penalty units.
24
Strict liability offence
25
(2) A person commits an offence if:
26
(a) the person sells an article; and
27
(b) the article has not been packed in advance ready for sale; and
28
(c) before or at the time of sale, the person:
29
(i) makes a representation about the measurement of the
30
article; or
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 71
(ii) makes a representation (including a statement as to
1
price) by which the measurement of the article can be
2
worked out; and
3
(d) the measurement of the article sold is less than that
4
represented; and
5
(e) in the case where the representation is made before the time
6
of sale--the representation is not corrected before or at the
7
time of sale.
8
Penalty: 40 penalty units.
9
(3) Subsection (2) is an offence of strict liability.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
Part VIII--Enforcement of Parts IV to VII
12
Division 1--Overview
13
18L Overview
14
Overview of Part
15
(1) This Part contains mechanisms for enforcing the requirements
16
in Parts IV, V, VI and VII.
17
(2) Division 2 provides for the giving of evidentiary certificates in
18
relation to testing of packages under AQS, the national group
19
test procedures and the national single article test procedures.
20
(3) Division 3 sets up a system of infringement notices for
21
contraventions of strict liability provisions as an alternative to
22
the institution of proceedings in a court.
23
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72 National Measurement Amendment Bill 2008 No. , 2008
Division 2--Evidentiary matters
1
18LA Evidentiary certificate--shortfall offences
2
Evidentiary certificates in relation to AQS testing
3
(1) Subject to section 18LB, in any offence proceedings under
4
Subdivision 3-C of Division 3 of Part VI, a certificate, signed by a
5
trade measurement inspector, stating that:
6
(a) a particular package is one of a group of packages of the
7
same kind that were on the same premises or in the same
8
vehicle at a specified time; and
9
(b) the number of packages in the group equalled or exceeded
10
the AQS threshold; and
11
(c) a sample of the group, selected in accordance with AQS
12
sampling procedures, failed testing in accordance with AQS
13
test procedures;
14
is admissible as prima facie evidence of the matters stated in the
15
certificate.
16
Evidentiary certificates in relation to national group test
17
procedures
18
(2) Subject to section 18LB, in any offence proceedings under
19
Subdivision 4-B of Division 4 of Part VI, a certificate, signed by a
20
trade measurement inspector, stating that:
21
(a) a particular package is one of a group of packages of the
22
same kind that were on the same premises or in the same
23
vehicle at a specified time; and
24
(b) the number of packages in the group equalled or exceeded
25
the national test threshold; and
26
(c) a sample of the group, selected in accordance with national
27
sampling procedures, failed testing in accordance with the
28
national group test procedures;
29
is admissible as prima facie evidence of the matters stated in the
30
certificate.
31
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 73
Evidentiary certificates in relation to national single article test
1
procedures
2
(3) Subject to section 18LB, in any offence proceedings under
3
Subdivision 4-B of Division 4 of Part VI, a certificate, signed by a
4
trade measurement inspector, stating that a package failed testing
5
in accordance with the national single article test procedures is
6
admissible as prima facie evidence of the matters stated in the
7
certificate.
8
(4) For the purposes of this section, a document purporting to be a
9
certificate referred to in subsection (1), (2) or (3) is, unless the
10
contrary is established, to be taken to be such a certificate and to
11
have been duly given.
12
18LB Certificate not to be admitted unless copy given to defendant
13
14 days before certificate to be admitted in evidence
14
A certificate must not be admitted in evidence under section 18LA
15
in offence proceedings under Part VI unless the person charged
16
with the offence or a solicitor who has appeared for the person in
17
those proceedings has, at least 14 days before the certificate is
18
sought to be so admitted, been given a copy of the certificate
19
together with reasonable evidence of the intention to produce the
20
certificate as evidence in the proceedings.
21
18LC Person giving ce rtificate may be called to give evidence
22
(1) Subject to subsection (2), if, under section 18LA, a certificate is
23
admitted in evidence in offence proceedings under Part VI, the
24
person charged with the offence may require the person who gave
25
the certificate to be called as a witness for the prosecution and
26
cross-examined as if he or she had given evidence of the matters
27
stated in the certificate.
28
(2) Subsection (1) does not entitle the person charged to require the
29
person who gave a certificate to be called as a witness for the
30
prosecution unless:
31
(a) the prosecutor has been given at least 4 days notice of the
32
person's intention to require the person who gave the
33
certificate to be called; or
34
Schedule 1 Trade measurement
74 National Measurement Amendment Bill 2008 No. , 2008
(b) the Court, by order, allows the person charged to require the
1
person who gave the certificate to be called.
2
18LD Evidence in support or rebuttal of matters in certificate to be
3
considered on its merits
4
Any evidence given in support, or in rebuttal, of a matter stated in
5
a certificate given under section 18LA must be considered on its
6
merits, and the credibility and probative value of such evidence
7
must be neither increased nor diminished by reason of this
8
Division.
9
18LE Evidence--matters relating to packing
10
(1) If an article is packed in advance ready for sale and the package in
11
which it is packed is marked with a name, that marking is
12
evidence:
13
(a) if the name is of a person--that the article was packed by that
14
person; or
15
(b) if the name is or was registered under a law relating to
16
business names--that the article was packed by each of the
17
persons in relation to whom the business name is or was
18
registered.
19
(2) If an article is packed in advance ready for sale and the package in
20
which it is packed is marked with an address, that marking is
21
evidence that the package was packed at that address.
22
(3) If an article is packed in advance ready for sale and the package in
23
which it is packed is marked with a date, that marking is evidence
24
of the date on which the article was packed.
25
(4) If an article is packed in advance ready for sale and the package in
26
which it is packed is marked with any combination of numbers,
27
letters or symbols to indicate where, when or by whom the article
28
was packed, that marking is evidence of those matters.
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 75
Division 3--Infringement notices
1
18LF When an infringe ment notice can be given
2
(1) If a trade measurement inspector has reasonable grounds to believe
3
that a person has contravened a provision of this Act that is stated
4
to be an offence of strict liability, the inspector may give the
5
person an infringement notice relating to the contravention.
6
(2) The infringement notice must be given within 12 months after the
7
day on which the trade measurement inspector discovers the
8
alleged contravention.
9
18LG Matters to be included in an infringement notice
10
An infringement notice must:
11
(a) set out the name of the person to whom the notice is given;
12
and
13
(b) set out the name of the person who gave the notice; and
14
(c) set out brief details relating to the alleged contravention of
15
the relevant provision, including the date of the alleged
16
contravention; and
17
(d) contain a statement to the effect that criminal proceedings
18
will not be brought in relation to the matter if the penalty
19
specified in the notice is paid to the Secretary, on behalf of
20
the Commonwealth, within:
21
(i) 28 days after the notice is given; or
22
(ii) if the Secretary allows a longer period--that longer
23
period; and
24
(e) give an explanation of how payment of the penalty is to be
25
made; and
26
(f) set out such other matters (if any) as are specified in the
27
regulations.
28
18LH Amount of penalty
29
The penalty to be specified in an infringement notice relating to an
30
alleged contravention of a provision in relation to which an
31
infringement notice may be given must be a pecuniary penalty
32
equal to 5 penalty units.
33
Schedule 1 Trade measurement
76 National Measurement Amendment Bill 2008 No. , 2008
18LI Withdrawal of an infringement notice
1
(1) A trade measurement inspector may, by written notice (the
2
withdrawal notice) given to a person, withdraw an infringement
3
notice given to the person.
4
(2) To be effective, the withdrawal notice must be given to the person
5
within 28 days after the infringement notice was given.
6
Refund of penalty if infringement notice withdrawn
7
(3) If:
8
(a) the penalty specified in the infringement notice is paid; and
9
(b) the infringement notice is withdrawn after the penalty is paid;
10
the Commonwealth is liable to refund the penalty.
11
18LJ What happens if the penalty is paid
12
(1) This section applies if:
13
(a) an infringement notice is given to a person under
14
section 18LF; and
15
(b) the penalty is paid in accordance with the infringement
16
notice; and
17
(c) the infringement notice is not withdrawn.
18
(2) Any liability of the person for the alleged contravention is
19
discharged.
20
(3) Criminal proceedings may not be brought against the person for the
21
alleged contravention.
22
18LK Effect of this Division on criminal proceedings
23
This Division does not:
24
(a) require an infringement notice to be given in relation to an
25
alleged contravention of a provision mentioned in
26
section 18LF; or
27
(b) affect the liability of a person to have criminal proceedings
28
brought against the person for an alleged contravention of a
29
provision mentioned in that section; or
30
(c) limit a court's discretion to determine the amount of a
31
penalty to be imposed on a person who is found in criminal
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 77
proceedings to have contravened a provision mentioned in
1
that section.
2
Division 4--Additional enforcement options
3
18LL Overvie w
4
Overview of Division
5
(1) This Division contains alternative means of ensuring
6
compliance with Parts IV, V, VI and VII.
7
(2) The Secretary may accept an enforceable undertaking from a
8
person in relation to compliance with Part IV, V, VI or VII
9
(see section 18LM).
10
(3) The Secretary may apply to the Federal Court of Australia or
11
the Federal Magistrates Court for an injunction to restrain a
12
person from conduct that would be an offence under Part IV,
13
V, VI or VII (see section 18LO).
14
(4) The Secretary may publicise an offence under Part IV, V, VI
15
or VII (see section 18LP).
16
(5) If, in the purported execution of a contract, dealing or
17
transaction, an offence under Part IV, V, VI or VII is
18
committed, the contract, dealing or transaction is voidable (see
19
section 18LQ).
20
18LM Accepting undertakings
21
(1) The Secretary may accept a written undertaking given by a person
22
in connection with a matter relating to compliance with Part IV, V,
23
VI or VII.
24
(2) The person may vary or withdraw the undertaking at any time, but
25
only with the consent of the Secretary.
26
Schedule 1 Trade measurement
78 National Measurement Amendment Bill 2008 No. , 2008
18LN Enforcing unde rtakings
1
(1) If the Secretary considers that a person who gave an undertaking
2
under section 18LM has breached a term of the undertaking, the
3
Secretary may apply to the Federal Court of Australia or the
4
Federal Magistrates Court for an order under subsection (2).
5
(2) If the court is satisfied that the person has breached a term of the
6
undertaking, the court may make one or more of the following
7
orders:
8
(a) an order directing the person to comply with that term of the
9
undertaking;
10
(b) an order directing the person to pay to the Commonwealth an
11
amount up to the amount of any financial benefit that the
12
person has obtained directly or indirectly and that is
13
reasonably attributable to the breach;
14
(c) any order that the court considers appropriate directing the
15
person to compensate any other person who has suffered loss
16
or damage as a result of the breach;
17
(d) any other order that the court considers appropriate.
18
18LO Injunctions
19
(1) If a person has engaged, is engaging or is proposing to engage in
20
conduct that constituted, constitutes or would constitute an offence
21
against Part IV, V, VI or VII, the Federal Court of Australia or the
22
Federal Magistrates Court may, on the application of the Secretary,
23
grant an injunction:
24
(a) restraining the person from engaging in the conduct; or
25
(b) requiring the person to do an act or thing.
26
(2) On an application, the court may, if it thinks it appropriate, grant
27
an injunction by consent of all parties to the proceedings, whether
28
or not the court is satisfied that the person has engaged, is engaging
29
or is proposing to engage in any conduct that constituted,
30
constitutes or would constitute an offence against Part IV, V, VI or
31
VII.
32
(3) The court may, if it thinks it desirable, grant an interim injunction
33
pending its determination of an application.
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 79
(4) The court is not to require the Secretary or anyone else, as a
1
condition of granting an interim injunction, to give an undertaking
2
as to damages.
3
(5) The court may vary or discharge an injunction it has granted.
4
(6) The power to grant or vary an injunction restraining a person from
5
engaging in conduct may be exercised:
6
(a) whether or not it appears to the court that the person intends
7
to engage again, or to continue to engage, in such conduct;
8
and
9
(b) whether or not the person has previously engaged in such
10
conduct.
11
(7) The power to grant or vary an injunction requiring a person to do
12
an act or thing may be exercised:
13
(a) whether or not it appears to the court that the person intends
14
to refuse or fail again, or to continue to refuse or fail, to do
15
that act or thing; and
16
(b) whether or not the person has previously refused or failed to
17
do that act or thing and whether or not there is an imminent
18
danger of substantial damage to any person if the person
19
refuses or fails to do that act or thing.
20
18LP Secretary may publicise offences
21
(1) The Secretary may publicise, in any way he or she thinks
22
appropriate, an offence against Part IV, V, VI or VII for which a
23
person has been convicted.
24
(2) This section does not:
25
(a) limit the Secretary's powers to publicise an offence against
26
this Act; or
27
(b) prevent anyone else from publicising an offence against this
28
Act; or
29
(c) affect any obligation (however imposed) on anyone to
30
publicise an offence against this Act.
31
18LQ Affected contracts etc. voidable
32
If:
33
Schedule 1 Trade measurement
80 National Measurement Amendment Bill 2008 No. , 2008
(a) a person is a party to a contract, dealing or other transaction;
1
and
2
(b) in relation to the purported execution of the contract, dealing
3
or other transaction the person commits an offence under
4
Part IV, V, VI or VII;
5
the contract, dealing or other transaction is voidable at the option
6
of the other party or parties to it.
7
Part IX--Trade measurement inspectors
8
Division 1--Overview of Part
9
18M Overview
10
Overview of Part
11
(1) This Part contains provisions about trade measurement
12
inspectors, who are responsible for monitoring compliance
13
with this Act.
14
(2) Division 2 provides for the appointment of trade measurement
15
inspectors. Inspectors will be issued with identity cards.
16
(3) Division 3 empowers trade measurement inspectors to enter
17
certain premises and inspect certain vehicles to find out
18
whether Part IV, V, VI or VII has been complied with.
19
(4) Division 4 imposes obligations on trade measurement
20
inspectors that must be complied with when inspectors are
21
exercising powers.
22
(5) Division 5 sets out the rights and responsibilities of controllers
23
when business premises are being searched, when business
24
vehicles are being inspected or when a warrant is being
25
executed.
26
(6) Division 6 contains provisions about warrants for the purposes
27
of finding out whether Part IV, V, VI or VII has been
28
complied with and warrants relating to the collection of
29
evidential material.
30
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 81
Division 2--Appointment of trade measurement inspectors
1
and identity cards
2
18MA Appointment of trade measurement inspectors
3
(1) The Secretary may, by instrument in writing, appoint any of the
4
following persons as a trade measurement inspector:
5
(a) an APS employee in the Department;
6
(b) an employee (whether or not an APS employee) of a
7
Commonwealth authority;
8
(c) the holder of an office established by or under a law of the
9
Commonwealth.
10
(2) However, the Secretary must not appoint a person as a trade
11
measurement inspector unless the person holds the prescribed
12
qualifications.
13
(3) The regulations may prescribe classes of trade measurement
14
inspectors by reference to either or both of the following:
15
(a) classes of powers to be exercised, or classes of functions or
16
duties to be performed by the inspectors;
17
(b) the circumstances in which those classes of powers are to be
18
exercised, or those classes of functions or duties are to be
19
performed.
20
(4) The Secretary must, in the instrument of appointment, specify to
21
which class of trade measurement inspectors the person is
22
appointed.
23
(5) If a person is appointed to a class of trade measurement inspectors
24
who may verify measuring instruments, the Secretary must allot
25
the person an inspector's mark.
26
(6) In exercising the powers or performing the functions and duties of
27
a trade measurement inspector, a trade measurement inspector
28
must comply with any directions of the Secretary.
29
(7) The Secretary must not appoint a person as a trade measurement
30
inspector unless the Secretary is satisfied that the person has the
31
competencies appropriate to the exercise of the powers and the
32
performance of the functions or duties of the class of trade
33
measurement inspectors to which the person is appointed.
34
Schedule 1 Trade measurement
82 National Measurement Amendment Bill 2008 No. , 2008
18MB Identity card
1
(1) The Secretary must issue an identity card to a trade measurement
2
inspector in the form prescribed by the regulations. The identity
3
card must:
4
(a) contain a photograph of the trade measurement inspector that
5
is no more than 5 years old; and
6
(b) identify the class of trade measurement inspectors to which
7
the inspector is appointed.
8
(2) A person commits an offence if:
9
(a) the person has been issued with an identity card; and
10
(b) the person ceases to be a trade measurement inspector; and
11
(c) the person does not, immediately after so ceasing, return the
12
identity card to the Secretary.
13
Penalty: 1 penalty unit.
14
(3) A trade measurement inspector must carry the identity card at all
15
times when exercising powers or performing functions as a trade
16
measurement inspector.
17
18MC Evidentiary certificate--appointment and class of trade
18
measurement inspector
19
(1) In any proceedings (including disciplinary action) under this Act, a
20
certificate, signed by the Secretary, stating that a person was, at a
21
specified time, a trade measurement inspector of a particular class
22
is admissible as prima facie evidence of the matters stated in the
23
certificate.
24
(2) A document purporting to be a certificate mentioned in
25
subsection (1) is taken to be such a certificate and to have been
26
duly given unless the contrary is established.
27
Division 3--Powers of trade measurement inspectors
28
18MD Overview
29
Overview of Division
30
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 83
(1) Trade measurement inspectors have the power to enter
1
business or residential premises or to inspect business
2
vehicles. Inspectors also have the power to search and seize
3
things. This includes powers to copy documents, record
4
information and test articles and instruments.
5
(2) A trade measurement inspector must not enter residential
6
premises without consent or a warrant.
7
(3) Trade measurement inspectors may collect evidential material
8
(see section 18MF).
9
(4) Section 18MG sets out the general powers of trade
10
measurement inspectors to search and seize things.
11
(5) Trade measurement inspectors may oblige a controller to
12
answer questions or produce documents (see section 18MH).
13
18ME Monitoring powe rs
14
(1) A trade measurement inspector may:
15
(a) enter any business premises, or inspect any business vehicle,
16
at any reasonable time of day; and
17
(b) exercise the powers set out in section 18MG;
18
for the purposes of:
19
(c) finding out whether Part IV, V, VI or VII has been complied
20
with; or
21
(d) finding out whether a condition of a servicing licence under
22
Part X or a public weighbridge licence under Part XI has
23
been complied with; or
24
(e) finding out whether a condition of an appointment of a utility
25
meter verifier under Part XIII has been complied with.
26
(2) A trade measurement inspector may:
27
(a) enter any residential premises at any reasonable time of day;
28
and
29
(b) exercise the powers set out in section 18MG;
30
for the purposes of:
31
(c) finding out whether Part IV, V, VI or VII has been complied
32
with; or
33
Schedule 1 Trade measurement
84 National Measurement Amendment Bill 2008 No. , 2008
(d) finding out whether a condition of a servicing licence under
1
Part X or a public weighbridge licence under Part XI has
2
been complied with; or
3
(e) finding out whether a condition of an appointment of a utility
4
meter verifier under Part XIII has been complied with.
5
(3) However, a trade measurement inspector is not authorised to enter
6
residential premises under subsection (2) unless:
7
(a) the controller of the premises has consented to the entry or
8
inspection and the inspector has shown his or her identity
9
card if required by the controller; or
10
(b) the entry or inspection is made under a warrant issued under
11
section 18MZ or 18MZA.
12
(4) If the trade measurement inspector is on residential premises with
13
the controller's consent, the inspector must leave the premises if
14
the controller asks the inspector to do so.
15
(5) If the trade measurement inspector:
16
(a) is on residential premises under a warrant issued under
17
section 18MZ or 18MZA for the purposes of:
18
(i) finding out whether Part IV, V, VI or VII has been
19
complied with; or
20
(ii) finding out whether a condition of a servicing licence
21
under Part X or a public weighbridge licence under
22
Part XI has been complied with; or
23
(iii) finding out whether a condition of an appointment of a
24
utility meter verifier under Part XIII has been complied
25
with; and
26
(b) believes on reasonable grounds that there is evidential
27
material on the premises;
28
the inspector may secure the material pending obtaining of a
29
warrant under section 18MZ or 18MZA to seize it.
30
18MF Collecting evidential material
31
(1) This section applies if a trade measurement inspector has
32
reasonable grounds for suspecting that there may be evidential
33
material on any premises or in or on any business vehicle.
34
(2) The trade measurement inspector may:
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 85
(a) in the case of business premises or a business vehicle--enter
1
the premises or inspect the vehicle; and
2
(b) in the case of residential premises--enter the premises:
3
(i) with the consent of the controller after producing his or
4
her identity card for the inspection of the controller; or
5
(ii) under a warrant issued under section 18MZ or 18MZA;
6
and
7
(c) exercise the powers set out in section 18MG in relation to
8
looking for the evidential material; and
9
(d) seize the evidential material, if the inspector finds it on the
10
premises, or in or on the vehicle.
11
(3) If the evidential material referred to in subsection (1) is or includes
12
information in a written or electronic form, a trade measurement
13
inspector may operate equipment on the premises, or in or on the
14
vehicle, to see whether any of the following contain the
15
information:
16
(a) the equipment;
17
(b) a disk, tape or other storage device that:
18
(i) is on the premises, or in or on the vehicle; and
19
(ii) can be used with or is associated with the equipment.
20
(4) If the trade measurement inspector, after operating the equipment,
21
finds that the equipment, or a disk, tape or other storage device,
22
contains the information mentioned in subsection (3), he or she
23
may:
24
(a) seize the equipment or the disk, tape or other storage device;
25
or
26
(b) if the information can, by using facilities at the premises, or
27
in or on the vehicle, be put in documentary form--operate
28
the facilities to put the information in that form and seize the
29
documents so produced; or
30
(c) if the information can be transferred to a disk, tape or other
31
storage device that:
32
(i) is brought to the premises or the vehicle; or
33
(ii) is at the premises, or in or on the vehicle, and whose use
34
for the purpose has been agreed to in writing by the
35
controller of the premises or vehicle;
36
Schedule 1 Trade measurement
86 National Measurement Amendment Bill 2008 No. , 2008
operate the equipment or other facilities to copy the
1
information to the storage device and remove the storage
2
device from the premises or vehicle.
3
(5) A trade measurement inspector may seize equipment under
4
paragraph (4)(a) only if:
5
(a) it is not practicable to put the relevant information in
6
documentary form as mentioned in paragraph (4)(b) or to
7
copy the records as mentioned in paragraph (4)(c); or
8
(b) possession of the equipment by the controller could
9
constitute an offence.
10
(6) If:
11
(a) in the course of searching for a particular thing, a trade
12
measurement inspector finds another thing that the inspector
13
believes on reasonable grounds to be evidential material; and
14
(b) the inspector believes, on reasonable grounds, that it is
15
necessary to seize that other thing in order to prevent its
16
concealment, loss or destruction, or its use in committing,
17
continuing or repeating an offence against this Act;
18
the inspector may seize that other thing.
19
(7) If the trade measurement inspector is on residential premises with
20
the controller's consent, the inspector must leave the premises if
21
the controller asks the inspector to do so.
22
18MG General powers of trade measure ment inspectors
23
(1) The powers that a trade measurement inspector may exercise in
24
relation to premises under section 18ME and 18MF are as follows:
25
(a) to search the premises and any thing on the premises;
26
(b) to take photographs or make video or audio recordings or
27
sketches of the premises or any thing on the premises;
28
(c) to sample and test measuring instruments, but only for the
29
purposes of:
30
(i) finding out whether Part IV, V, VI or VII has been
31
complied with; or
32
(ii) finding out whether a condition of a servicing licence
33
under Part X or a public weighbridge licence under
34
Part XI has been complied with; or
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 87
(iii) finding out whether a condition of an appointment of a
1
utility meter verifier under Part XIII has been complied
2
with; or
3
(iv) looking for evidential material;
4
(d) to inspect, examine, sample, measure, or conduct tests on any
5
articles or packages on the premises, but only for the
6
purposes of:
7
(i) finding out whether Part IV, V, VI or VII has been
8
complied with; or
9
(ii) finding out whether a condition of a servicing licence
10
under Part X or a public weighbridge licence under
11
Part XI has been complied with; or
12
(iii) finding out whether a condition of an appointment of a
13
utility meter verifier under Part XIII has been complied
14
with; or
15
(iv) looking for evidential material;
16
(e) to inspect any book, record or document on the premises;
17
(f) to take extracts from or make copies of any such book, record
18
or document;
19
(g) to use fuel or another energy source on the premises for the
20
purpose of exercising powers in relation to the premises;
21
(h) to take onto the premises such equipment and materials as the
22
trade measurement inspector requires for the purpose of
23
exercising powers in relation to the premises.
24
(2) The powers that a trade measurement inspector may exercise in
25
relation to a business vehicle under section 18ME or 18MF are as
26
follows:
27
(a) to search the vehicle and any thing in or on the vehicle;
28
(b) to take photographs or make video or audio recordings or
29
sketches of the vehicle or any thing in or on the vehicle;
30
(c) to sample and test measuring instruments, but only for the
31
purposes of:
32
(i) finding out whether Part IV, V, VI or VII has been
33
complied with; or
34
(ii) finding out whether a condition of a servicing licence
35
under Part X or a public weighbridge licence under
36
Part XI has been complied with; or
37
Schedule 1 Trade measurement
88 National Measurement Amendment Bill 2008 No. , 2008
(iii) finding out whether a condition of an appointment of a
1
utility meter verifier under Part XIII has been complied
2
with; or
3
(iv) looking for evidential material;
4
(d) to inspect, examine, sample, measure, or conduct tests on any
5
articles or packages in or on the vehicle, but only for the
6
purposes of:
7
(i) finding out whether Part IV, V, VI or VII has been
8
complied with; or
9
(ii) finding out whether a condition of a servicing licence
10
under Part X or a public weighbridge licence under
11
Part XI has been complied with; or
12
(iii) finding out whether a condition of an appointment of a
13
utility meter verifier under Part XIII has been complied
14
with; or
15
(iv) looking for evidential material;
16
(e) to inspect any book, record or document in or on the vehicle;
17
(f) to take extracts from or make copies of any such book, record
18
or document;
19
(g) to use fuel or another energy source in or on the vehicle for
20
the purpose of exercising powers in relation to the vehicle;
21
(h) to take to, and into, the vehicle such equipment and materials
22
as the inspector requires for the purpose of exercising powers
23
in relation to the vehicle.
24
Sampling and testing articles and packages
25
(3) Without limiting subsections (1) and (2), the powers under
26
paragraphs (1)(d) and (2)(d) include the power to:
27
(a) sample articles or packages in accordance with AQS
28
sampling procedures or national sampling procedures; and
29
(b) test articles or packages in accordance with AQS test
30
procedures, national group test procedures or national single
31
article test procedures.
32
(4) The powers under paragraphs (1)(d) and (2)(d) may be exercised in
33
relation to an article even though that might result in:
34
(a) damage to, or the destruction of, the article or the package
35
containing the article; or
36
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 89
(b) the reduction in the value of the article or the package
1
containing the article.
2
(5) The powers under paragraphs (1)(d) and (2)(d) may be exercised in
3
relation to a package even though that might result in:
4
(a) damage to, or the destruction of, the package; or
5
(b) the reduction in the value of the package.
6
(6) However, a trade measurement inspector must not be more
7
destructive in exercising a power under paragraph (1)(d) or (2)(d)
8
than is reasonable for the purpose of:
9
(a) finding out whether Part IV, V, VI or VII has been complied
10
with; or
11
(b) finding out whether a condition of a servicing licence under
12
Part X or a public weighbridge licence under Part XI has
13
been complied with; or
14
(c) finding out whether a condition of an appointment of a utility
15
meter verifier under Part XIII has been complied with; or
16
(d) collecting evidential material.
17
18MH Trade measurement inspector may request persons to answer
18
questions or produce documents
19
(1) If the trade measurement inspector was only authorised to enter
20
residential premises because its controller consented to the entry--
21
the inspector may ask the controller to:
22
(a) answer any questions put by the inspector; and
23
(b) produce any book, record or document requested by the
24
inspector.
25
(2) If the trade measurement inspector was authorised to enter business
26
premises under section 18ME or 18MF or to enter residential
27
premises by a warrant under section 18MZ or 18MZA--the
28
inspector may require any person in or on the premises to:
29
(a) answer any questions put by the inspector; and
30
(b) produce any book, record or document requested by the
31
inspector.
32
(3) If the trade measurement inspector was authorised to inspect a
33
business vehicle under section 18ME or 18MF--the inspector may
34
require its controller and any person in the vehicle to:
35
Schedule 1 Trade measurement
90 National Measurement Amendment Bill 2008 No. , 2008
(a) answer any questions put by the inspector; and
1
(b) produce any book, record or document requested by the
2
inspector.
3
(4) A person commits an offence if the person refuses or fails to
4
comply with a requirement under subsection (2) or (3).
5
Penalty: 200 penalty units.
6
(5) A person commits an offence of strict liability if the person refuses
7
or fails to comply with a requirement under subsection (2) or (3).
8
Penalty: 40 penalty units.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
(6) A person is excused from complying with a requirement of
11
subsection (2) or (3) if the answer to the question or the production
12
of the document might tend to incriminate the person or expose the
13
person to a penalty.
14
Note:
A defendant bears an evidential burden in relation to the matter in
15
subsection (6), see subsection 13.3(3) of the Criminal Code.
16
18MI English translation of book, record or docume nt requested by
17
a trade measure ment inspector
18
(1) If:
19
(a) a person gives a trade measurement inspector a book, record
20
or document in response to a request under subsection
21
18MH(1); and
22
(b) all or part of the book, record or document is in a language
23
other than English;
24
the inspector may ask the person to give a statement within a
25
reasonable period and written in the English language, setting out
26
those particulars in the book, document or record that are not
27
written in English.
28
(2) If:
29
(a) a person gives a trade measurement inspector a book, record
30
or document in response to a request under subsection
31
18MH(2) or (3); and
32
(b) all or part of the book, record or document is in a language
33
other than English;
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 91
the inspector may require the person to give a statement within a
1
reasonable period and written in the English language, setting out
2
those particulars in the book, document or record that are not
3
written in English.
4
(3) A person commits an offence if the person refuses or fails to
5
comply with a requirement under subsection (2).
6
Penalty: 200 penalty units.
7
(4) A person commits an offence of strict liability if the person refuses
8
or fails to comply with a requirement under subsection (2).
9
Penalty: 40 penalty units.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
(5) A person is excused from complying with a requirement of
12
subsection (2) if the answer to the question or the production of the
13
document might tend to incriminate the person or expose the
14
person to a penalty.
15
Note:
A defendant bears an evidential burden in relation to the matter in
16
subsection (5), see subsection 13.3(3) of the Criminal Code.
17
18MJ Powe r to give directions in relation to re-verification
18
(1) A trade measurement inspector may give reasonable directions to a
19
person in possession of a measuring instrument for the purposes of
20
facilitating re-verification of the instrument.
21
(2) The directions may include (but are not limited to) directions as to
22
the time and place at which the instrument is to be made available
23
to an inspector.
24
(3) If a direction given under this section specifies a time and place at
25
which the instrument is to be made available to the inspector, or
26
the inspector gives another direction that must be complied with
27
within a specified period, and the direction is not complied with at
28
that time or within that period, the instrument is taken not to be
29
verified from that time or the end of that period.
30
Note:
The person will commit an offence under Division 2 of Part IV if the
31
person uses the measuring instrument for trade, or installs or supplies
32
the measuring instrument for use for trade.
33
Schedule 1 Trade measurement
92 National Measurement Amendment Bill 2008 No. , 2008
18MK Power to ve rify measuring instrume nts on request
1
(1) A trade measurement inspector may examine a measuring
2
instrument and test its calibration:
3
(a) for the purposes of another Act; or
4
(b) at the request of the person in possession of the measuring
5
instrument;
6
even if the measuring instrument is not required to be verified or
7
re-verified under this Act.
8
(2) A trade measurement inspector may charge the prescribed fee for
9
verifying or re-verifying a measuring instrument under this section.
10
18ML Evidentiary certificate--examination and calibration under
11
section 18MK
12
In any proceedings (including disciplinary proceedings) under a
13
law of the Commonwealth, a certificate, signed by a trade
14
measurement inspector:
15
(a) stating that he or she has examined a measuring instrument or
16
tested its calibration under section 18MK; and
17
(b) setting out the results of that examination and testing;
18
is admissible as prima facie evidence of the matters stated in the
19
certificate.
20
18MM Trade measurement inspector must obliterate verification
21
mark
22
A trade measurement inspector must obliterate a verification mark
23
on a measuring instrument if, in the course of exercising powers or
24
performing functions or duties under this Act or the regulations,
25
the inspector becomes aware that:
26
(a) the measuring instrument no longer complies with the
27
requirements for verification set out in section 18GK when
28
tested in accordance with the national instrument test
29
procedures; or
30
(b) if the measuring instrument is treated as one of a batch under
31
the national instrument test procedures--the measuring
32
instrument is one of a batch that no longer complies with the
33
requirements for verification set out in section 18GK when
34
tested in accordance with those procedures.
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 93
Division 4--Obligations of trade measurement inspectors
1
18MN Trade measure ment inspector must produce identity card on
2
request
3
(1) A trade measurement inspector is not entitled to exercise any
4
powers under Division 3 in relation to premises if:
5
(a) the controller of the premises requires the inspector to
6
produce his or her identity card for inspection by the
7
controller; and
8
(b) the inspector fails to comply with the requirement.
9
(2) A trade measurement inspector is not entitled to exercise any
10
powers under Division 3 in relation to a business vehicle if:
11
(a) the controller of the vehicle requires the inspector to produce
12
his or her identity card for inspection by the controller; and
13
(b) the inspector fails to comply with the requirement.
14
18MO Details of warrant to be given to controller etc.
15
(1) If a warrant in relation to residential premises is being executed
16
and the controller of the premises or another person who
17
apparently represents the controller is present at the premises, the
18
trade measurement inspector must make available to that person a
19
copy of the warrant.
20
(2) The trade measurement inspector must identify himself or herself
21
to that person.
22
(3) The copy of the warrant need not include the signature of the
23
magistrate who issued the warrant.
24
18MP Consent to enter residential premises
25
(1) Before obtaining the consent of a person for the purposes of
26
paragraph 18ME(3)(a) or subparagraph 18MF(2)(b)(i), the trade
27
measurement inspector must inform the person that he or she may
28
refuse consent.
29
(2) An entry or inspection by a trade measurement inspector by virtue
30
of a person's consent is not lawful unless the person voluntarily
31
consented to the entry or inspection.
32
Schedule 1 Trade measurement
94 National Measurement Amendment Bill 2008 No. , 2008
18MQ Announcement on entry or inspection
1
(1) A trade measurement inspector must, on entering business
2
premises under section 18ME or 18MF or residential premises
3
under a warrant under section 18MZ or 18MZA:
4
(a) announce to the controller that he or she is authorised to enter
5
the premises; and
6
(b) give any person at the premises an opportunity to allow entry
7
to the premises.
8
(2) A trade measurement inspector must, on inspecting a business
9
vehicle under section 18ME or 18MF:
10
(a) announce to the controller that he or she is authorised to
11
inspect the vehicle; and
12
(b) give the controller or any person in the vehicle an
13
opportunity to allow the inspection.
14
18MR Compensation for damage to electronic equipme nt
15
(1) This section applies if:
16
(a) as a result of equipment being operated as mentioned in
17
section 18MF:
18
(i) damage is caused to the equipment; or
19
(ii) the data recorded on the equipment is damaged; or
20
(iii) programs associated with the use of the equipment, or
21
with the use of the data, are damaged or corrupted; and
22
(b) the damage or corruption occurs because:
23
(i) insufficient care was exercised in selecting the person
24
who was to operate the equipment; or
25
(ii) insufficient care was exercised by the person operating
26
the equipment.
27
(2) The Commonwealth must pay the owner of the equipment, or the
28
user of the data or programs, such reasonable compensation for the
29
damage or corruption as the Commonwealth and the owner or user
30
agree on.
31
(3) However, if the owner or user and the Commonwealth fail to
32
agree, the owner or user may institute proceedings in the Federal
33
Court of Australia for such reasonable amount of compensation as
34
the Court determines.
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 95
(4) In determining the amount of compensation payable, regard is to
1
be had to whether the controller of the premises or vehicle, or the
2
controller's employees or agents, if they were available at the time,
3
provided any appropriate warning or guidance on the operation of
4
the equipment.
5
(5) Compensation is payable out of money appropriated by the
6
Parliament.
7
(6) For the purposes of subsection (1):
8
damage, in relation to data, includes damage by erasure of data or
9
addition of other data.
10
18MS Copies of seized things to be provided
11
(1) Subject to subsection (3), if a trade measurement inspector seizes
12
from premises, either under a warrant or otherwise:
13
(a) a document, film, computer file or other thing that can be
14
readily copied; or
15
(b) a storage device, the information in which can be readily
16
copied;
17
the inspector must, if requested to do so by the controller of the
18
premises, or another person who apparently represents the
19
controller, and who is present when the thing is seized, give a copy
20
of the thing or the information to that person as soon as practicable
21
after the seizure.
22
(2) Subject to subsection (3), if a trade measurement inspector seizes,
23
from a vehicle:
24
(a) a document, film, computer file or other thing that can be
25
readily copied; or
26
(b) a storage device, the information in which can be readily
27
copied;
28
the inspector must, if requested to do so by the controller of the
29
vehicle, or another person who apparently represents the controller,
30
and who is present when the thing is seized, give a copy of the
31
thing or the information to that person as soon as practicable after
32
the seizure.
33
(3) Subsections (1) and (2) do not apply if:
34
Schedule 1 Trade measurement
96 National Measurement Amendment Bill 2008 No. , 2008
(a) the thing that has been seized was seized under paragraph
1
18MF(4)(b) or (c); or
2
(b) possession by the controller of the document, film, computer
3
file, thing or information could constitute an offence.
4
18MT Receipts for things seized
5
(1) If a thing is seized under this Part, the trade measurement inspector
6
must provide a receipt for the thing.
7
(2) If 2 or more things are seized or moved, they may be covered in
8
the one receipt.
9
18MU Retention of seized things
10
(1) Subject to any contrary order of a court, if a trade measurement
11
inspector seizes a thing under this Part, a trade measurement
12
inspector must return it if:
13
(a) the reason for its seizure no longer exists or it is decided that
14
it is not to be used in evidence; or
15
(b) the period of 6 months after its seizure ends;
16
whichever first occurs, unless the thing is forfeited or forfeitable to
17
the Commonwealth.
18
(2) At the end of the 6 months specified in subsection (1), a trade
19
measurement inspector must take reasonable steps to return the
20
thing to the person from whom it was seized, unless:
21
(a) proceedings in respect of which the thing may afford
22
evidence were instituted before the end of the 6 months and
23
have not been completed (including an appeal to a court in
24
relation to those proceedings); or
25
(b) the inspector may retain the thing because of an order under
26
section 18MV; or
27
(c) a trade measurement inspector is otherwise authorised (by a
28
law, or an order of a court, of the Commonwealth or of a
29
State or Territory) to retain, destroy or dispose of the thing.
30
(3) The thing may be returned under subsection (2) either
31
unconditionally or on such terms and conditions as the Secretary
32
sees fit.
33
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 97
18MV Magistrate may permit a thing to be retained
1
(1) A trade measurement inspector may apply to a magistrate for an
2
order that he or she may retain the thing for a further period if:
3
(a) before the end of 6 months after the seizure; or
4
(b) before the end of a period previously specified in an order of
5
a magistrate under this section;
6
proceedings in respect of which the thing may afford evidence
7
have not commenced.
8
(2) If the magistrate is satisfied that it is necessary for a trade
9
measurement inspector to continue to retain the thing:
10
(a) for the purposes of an investigation as to whether an offence
11
against this Act has been committed; or
12
(b) to enable evidence of an offence against this Act to be
13
secured for the purposes of a prosecution;
14
the magistrate may order that a trade measurement inspector may
15
retain the thing for a period (not being a period exceeding 3 years)
16
specified in the order.
17
(3) Before making the application, the trade measurement inspector
18
must:
19
(a) take reasonable steps to discover who has an interest in the
20
retention of the thing; and
21
(b) if it is practicable to do so, notify each person whom the trade
22
measurement inspector believes to have such an interest of
23
the proposed application.
24
Division 5--Controller's rights and responsibilities
25
18MW Controller entitled to be present during search
26
(1) If:
27
(a) business premises are being searched; or
28
(b) a warrant in relation to residential premises is being
29
executed;
30
the controller of the premises, or another person who apparently
31
represents the controller is, if present at the premises, entitled to
32
observe the search being conducted.
33
Schedule 1 Trade measurement
98 National Measurement Amendment Bill 2008 No. , 2008
(2) If a business vehicle is being inspected, the controller of the
1
vehicle, or another person who apparently represents the controller,
2
is, if present, entitled to observe the inspection being conducted.
3
(3) The right to observe the search or inspection being conducted
4
ceases if the person impedes the search or inspection.
5
(4) This section does not prevent 2 or more areas of the premises or
6
vehicle being searched or inspected at the same time.
7
18MX Controlle r must provide trade measure ment inspector with
8
facilities and assistance
9
(1) If:
10
(a) a person is the controller of business premises, or a business
11
vehicle; and
12
(b) a trade measurement inspector enters the premises, or
13
inspects the vehicle, under section 18ME or 18MF;
14
the person must provide the inspector, or any person assisting the
15
inspector, with all reasonable facilities and assistance for the
16
effective execution of the inspector's powers under Division 3.
17
(2) If:
18
(a) a person is the controller of residential premises to which a
19
warrant issued under section 18MZ or 18MZA relates; and
20
(b) a trade measurement inspector executing the warrant enters
21
the premises under the warrant;
22
the person must provide the inspector, or any person assisting the
23
inspector, with all reasonable facilities and assistance for the
24
effective execution of the warrant.
25
(3) A person commits an offence if:
26
(a) the person engages in conduct; and
27
(b) the conduct contravenes subsection (1) or (2).
28
Penalty for a contravention of this subsection: 30 penalty units.
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 99
Division 6--Warrants
1
18MY Overview
2
Overview of Division
3
(1) This Division contains provisions allowing warrants to be
4
issued in relation to residential premises for the purposes of
5
finding out whether Part IV, V, VI or VII has been complied
6
with or for the collection of evidential material.
7
(2) There is a special process available for the issue of warrants in
8
urgent cases (see section 18MZB).
9
(3) Warrants are issued by magistrates in their personal capacity.
10
18MZ Monitoring warrants
11
(1) A trade measurement inspector may apply to a magistrate for a
12
warrant under this section in relation to residential premises.
13
(2) Subject to subsection (3), the magistrate may issue the warrant if
14
the magistrate is satisfied, by information on oath or affirmation,
15
that it is reasonably necessary that one or more trade measurement
16
inspectors should have access to the premises for the purposes of:
17
(a) finding out whether Part IV, V, VI or VII has been complied
18
with; or
19
(b) finding out whether a condition of a servicing licence under
20
Part X or a public weighbridge licence under Part XI has
21
been complied with; or
22
(c) finding out whether a condition of an appointment of a utility
23
meter verifier under Part XIII has been complied with.
24
(3) The magistrate must not issue the warrant unless the trade
25
measurement inspector or some other person has given to the
26
magistrate, either orally or by affidavit, such further information (if
27
any) as the magistrate requires concerning the grounds on which
28
the issue of the warrant is being sought.
29
(4) The warrant must:
30
Schedule 1 Trade measurement
100 National Measurement Amendment Bill 2008 No. , 2008
(a) authorise one or more trade measurement inspectors (whether
1
or not named in the warrant):
2
(i) to enter the premises; and
3
(ii) to exercise the powers set out in section 18MG in
4
relation to the premises; and
5
(b) state whether the entry is authorised to be made at any time
6
of the day or during specified hours of the day; and
7
(c) specify the day (not more than 6 months after the issue of the
8
warrant) on which the warrant ceases to have effect; and
9
(d) state the purpose for which the warrant is issued.
10
18MZA Warrants relating to the collection of evidential material
11
(1) A trade measurement inspector may apply to a magistrate for a
12
warrant under this section in relation to residential premises.
13
(2) Subject to subsection (3), the magistrate may issue the warrant if
14
the magistrate is satisfied, by information on oath or affirmation,
15
that there are reasonable grounds for suspecting that there is, or
16
there may be within the next 72 hours, evidential material in or on
17
the premises.
18
(3) The magistrate must not issue the warrant unless the authorised
19
officer or some other person has given to the magistrate, either
20
orally or by affidavit, such further information (if any) as the
21
magistrate requires concerning the grounds on which the issue of
22
the warrant is being sought.
23
(4) The warrant must:
24
(a) name one or more trade measurement inspectors; and
25
(b) authorise the persons so named, with such assistance:
26
(i) to enter the premises; and
27
(ii) to exercise the powers set out in sections 18MF and
28
18MG in relation to premises; and
29
(iii) to seize the evidential material; and
30
(c) state whether the entry is authorised to be made at any time
31
of the day or during specified hours of the day; and
32
(d) specify the day (not more than one week after the issue of the
33
warrant) on which the warrant ceases to have effect; and
34
(e) state the purpose for which the warrant is issued.
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 101
18MZB Urgent warrant for the collection of evidential material
1
(1) If, in an urgent case, a trade measurement inspector considers it
2
necessary to do so, the inspector may apply to a magistrate by
3
telephone, fax or other electronic means for a warrant under
4
section 18MZA in relation to residential premises.
5
(2) Before applying for the warrant, the trade measurement inspector
6
must prepare an information of the kind mentioned in subsection
7
18MZA(2) in relation to the premises that sets out the grounds on
8
which the warrant is sought.
9
(3) If it is necessary to do so, the trade measurement inspector may
10
apply for the warrant before the information is sworn or affirmed.
11
(4) The magistrate:
12
(a) may require oral communication to the extent that it is
13
practicable in the circumstances; and
14
(b) may make a recording of the whole or any part of any such
15
oral communication.
16
(5) If the magistrate is satisfied:
17
(a) after having considered the terms of the information; and
18
(b) after having received such further information (if any) as the
19
magistrate requires concerning the grounds on which the
20
issue of the warrant is being sought;
21
that there are reasonable grounds for issuing the warrant, the
22
magistrate may complete and sign the same warrant that the
23
magistrate would issue under section 18MZA if the application had
24
been made under that section.
25
(6) If the magistrate completes and signs the warrant:
26
(a) the magistrate must tell the trade measurement inspector by
27
telephone, fax or other electronic means:
28
(i) what the terms of the warrant are; and
29
(ii) the day on which and the time at which the warrant was
30
signed; and
31
(iii) the day (not more than one week after the magistrate
32
completes and signs the warrant) on which the warrant
33
ceases to have effect; and
34
(b) the magistrate must record on the warrant the reasons for
35
granting the warrant; and
36
Schedule 1 Trade measurement
102 National Measurement Amendment Bill 2008 No. , 2008
(c) the trade measurement inspector must:
1
(i) complete a form of warrant in the same terms as the
2
warrant completed and signed by the magistrate; and
3
(ii) write on the form the name of the magistrate and the
4
day on which and the time at which the warrant was
5
signed.
6
(7) The trade measurement inspector must also, not later than the day
7
after the day of expiry or execution of the warrant, whichever is the
8
earlier, send to the magistrate:
9
(a) the form of warrant completed by the inspector; and
10
(b) the information referred to in subsection (2), which must
11
have been duly sworn or affirmed.
12
(8) When the magistrate receives those documents, the magistrate
13
must:
14
(a) attach them to the warrant that the magistrate completed and
15
signed; and
16
(b) deal with them in the way in which the magistrate would
17
have dealt with the information if the application had been
18
made under section 18MZA.
19
(9) A form of warrant duly completed under subsection (5) is authority
20
for any entry, search, seizure or other exercise of a power that the
21
warrant signed by the magistrate authorises.
22
(10) If:
23
(a) it is material, in any proceedings, for a court to be satisfied
24
that an exercise of a power was authorised by this section;
25
and
26
(b) the warrant signed by the magistrate authorising the exercise
27
of the power is not produced in evidence;
28
the court must assume, unless the contrary is proved, that the
29
exercise of the power was not authorised by such a warrant.
30
(11) A reference in this Part to a warrant under section 18MZA includes
31
a reference to a warrant signed by a magistrate under this section.
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 103
18MZC Powe rs confe rred on magistrates in their personal capacity
1
(1) A power conferred on a magistrate by this Part is conferred on the
2
magistrate in a personal capacity and not as a court or a member of
3
a court.
4
(2) The magistrate need not accept the power conferred.
5
(3) The magistrate must not exercise a power conferred by this Part
6
unless the conferral of the power is in accordance with an
7
agreement between the Commonwealth and the State or Territory
8
concerned.
9
18MZD Immunity of magistrates
10
A magistrate exercising a power mentioned in subsection
11
18MZC(1) has the same protection and immunity as if he or she
12
were exercising that power as, or as a member of, the court of
13
which the magistrate is a member.
14
Part X--Servicing licensees
15
16
18N Overview
17
Overview of Part
18
(1) Servicing licences are granted by the Secretary on application.
19
(2) The Secretary must refuse an application if the applicant does
20
not meet certain suitability requirements.
21
(3) There are conditions that are common to all servicing licences.
22
In addition, the Secretary may impose conditions on a
23
servicing licence. New conditions may be imposed, or existing
24
conditions amended or revoked, during the life of the licence.
25
(4) Servicing licences are granted for a period but may be
26
renewed on application.
27
Schedule 1 Trade measurement
104 National Measurement Amendment Bill 2008 No. , 2008
18NA Application for a servicing licence
1
(1) A person may make an application to the Secretary to be granted a
2
servicing licence.
3
(2) Two or more persons who carry on business together as partners
4
may make an application jointly for the partnership to be granted a
5
servicing licence.
6
(3) The application:
7
(a) must be in the form approved by the Secretary; and
8
(b) must be accompanied by the application fee prescribed for
9
the purposes of this paragraph; and
10
(c) must be accompanied by such other material as is prescribed.
11
(4) The Secretary may, by notice in writing to an applicant, request the
12
applicant to provide to the Secretary information or documents of
13
the kind specified in the notice within a specified period of not less
14
than 14 days.
15
(5) The Secretary may refuse the application if the notice is not
16
complied with.
17
18NB Granting a servicing licence
18
(1) The Secretary must grant an application for a servicing licence
19
unless there are grounds for refusal under this Act.
20
Note:
The Secretary may refuse to grant a servicing licence:
21
(a)
if the applicant fails to comply with a request for further
22
information or documents (see subsection 18NA(4)); or
23
(b)
because of other circumstances set out in section 18NC.
24
(2) The Secretary must give the applicant written notice of the decision
25
on the application within 28 days after the application is made (the
26
consideration period).
27
(3) If the Secretary requests an applicant under subsection 18NA(4) to
28
provide information or documents, the time taken by the applicant
29
to provide the information or documents is not to be included in the
30
consideration period.
31
(4) If the Secretary grants an applicant a servicing licence, the
32
Secretary must:
33
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 105
(a) approve a mark for use by the servicing licensee and
1
employees of the servicing licensee when verifying
2
measuring instruments; and
3
(b) include details of the mark in the notice given to the applicant
4
under subsection (2); and
5
(c) specify the period for which the licence is granted in the
6
notice given to the applicant under subsection (2).
7
(5) If the Secretary fails to give the applicant written notice of the
8
decision under subsection (2) within the consideration period the
9
Secretary is, at the end of the period, taken to have refused to grant
10
the application.
11
18NC Circumstances in which servicing licence must be refused
12
(1) The Secretary must refuse an application by an applicant to be
13
granted a servicing licence if:
14
(a) the applicant is an individual who has not reached the age of
15
18 years; or
16
(b) the applicant holds a licence under this Act that is suspended;
17
or
18
(c) the applicant is disqualified under this Act from holding a
19
licence; or
20
(d) neither the applicant nor any employee of the applicant has
21
the competencies appropriate to perform the functions and
22
duties of a verifier; or
23
(e) the applicant is not likely to carry on the activities of a
24
servicing licensee honestly and fairly; or
25
(f) the applicant is in any other way not a fit and proper person
26
to be a servicing licensee.
27
(2) Without limiting the generality of paragraph (1)(f), the Secretary
28
may have regard to any or all of the following matters in
29
determining whether the applicant is a fit and proper person to be a
30
servicing licensee:
31
(a) whether the applicant has, during the period of 10 years that
32
immediately preceded the making of the application, been
33
convicted of, or served any part of a term of imprisonment
34
for, an offence (whether under the law of the Commonwealth
35
or any other law) involving fraud or dishonesty;
36
Schedule 1 Trade measurement
106 National Measurement Amendment Bill 2008 No. , 2008
(b) whether the applicant was, when the application was made,
1
the subject of a charge pending in relation to such an offence;
2
(c) whether the applicant has, at any time, been convicted of an
3
offence against this Act or an earlier corresponding law;
4
(d) whether the applicant has been refused a licence under this
5
Act or an earlier corresponding law.
6
18ND Where the applicant is a body corporate
7
If the applicant is a body corporate, paragraph 18NC(1)(f) and
8
paragraphs 18NC(2)(a) to (d) apply as if a reference to the
9
applicant included a reference to a person concerned in the
10
management of the applicant.
11
18NE Where the applicant is a partnership
12
(1) If the applicant is a partnership, this Part applies as if:
13
(a) a reference to the applicant, other than in paragraph
14
18NC(1)(d), were a reference to each member of the
15
partnership; and
16
(b) the reference to the applicant in paragraph 18NC(1)(d) were a
17
reference to any partner in the partnership.
18
(2) If the Secretary grants a servicing licence to a partnership, the
19
licence must state:
20
(a) the names of all the partners; and
21
(b) if the partnership has a registered business name, the
22
registered business name.
23
(3) Each of the partners named on the servicing licence is taken to be a
24
servicing licensee for the purposes of this Act.
25
18NF Register of servicing licences
26
The Secretary must keep a register of prescribed particulars
27
relating to servicing licences.
28
18NG Conditions may be imposed on servicing licences
29
(1) The Secretary may impose conditions on a servicing licence.
30
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 107
(2) A condition may be imposed at the time the servicing licence is
1
granted or at a later time.
2
(3) A condition may be amended or revoked at any time.
3
(4) However, if a condition is to be imposed or amended after a
4
servicing licence is granted, the Secretary must invite the servicing
5
licensee to make written submissions in relation to the proposed
6
condition or amendment before imposing the condition, or making
7
the amendment.
8
(5) The invitation must:
9
(a) be in writing; and
10
(b) state the period of not less than 14 days within which the
11
submission must be made.
12
(6) Without limiting the generality of subsection (1), a condition may
13
restrict to a specified class or classes the measuring instruments
14
that may be verified under the servicing licence.
15
(7) The Secretary must notify the servicing licensee in writing of:
16
(a) the terms of any condition imposed on the servicing licence;
17
and
18
(b) the terms of any condition of the servicing licence as
19
amended; and
20
(c) the revocation of any condition of the servicing licence.
21
(8) The amendment or revocation of a condition of the servicing
22
licence takes effect on the later of:
23
(a) the day on which the notice is given; or
24
(b) the day specified in the notice.
25
18NH Conditions on all servicing licences
26
A servicing licence is subject to the following conditions:
27
(a) if the servicing licensee is an individual--a condition that the
28
servicing licensee must not personally verify a measuring
29
instrument unless he or she is competent to do so;
30
(b) a condition that the servicing licensee must not employ a
31
person to verify a measuring instrument unless he or she is
32
competent to do so;
33
Schedule 1 Trade measurement
108 National Measurement Amendment Bill 2008 No. , 2008
(c) a condition that the servicing licensee or an employee of the
1
servicing licensee must not mark a measuring instrument
2
with the servicing licensee's mark without first obliterating
3
any other verification mark that the instrument already bears;
4
(d) a condition that any obliteration by the servicing licensee or
5
an employee of the servicing licensee of a verification mark
6
without verification of the measuring instrument must be
7
reported in writing to the Secretary within 14 days or such
8
shorter period as is specified in the licence;
9
(e) a condition that if the servicing licensee or an employee of
10
the servicing licensee determines, when examining or testing
11
a measuring instrument, that the instrument could not be
12
verified, the servicing licensee must report the fact in writing
13
to the Secretary within 14 days or such shorter period as is
14
specified in the licence unless a report of the matter is also
15
required under paragraph (d);
16
(f) a condition that the servicing licensee or an employee of the
17
servicing licensee must not verify a measuring instrument
18
without using such equipment as is specified by the Secretary
19
when granting the licence;
20
(g) a condition that if the servicing licensee's mark is made by an
21
employee of the servicing licensee, the servicing licensee
22
must at all times be able from that mark to identify the
23
employee to the Secretary;
24
(h) a condition that the date on which the servicing licensee or an
25
employee of the servicing licensee verifies a measuring
26
instrument must be included with the servicing licensee's
27
mark;
28
(i) a condition that the servicing licensee must provide such
29
classes and denominations, as are determined by the
30
Secretary, of reference standards of measurement as are
31
necessary for the exercise of the powers or the performance
32
of the functions of the servicing licensee;
33
(j) such other conditions as may be prescribed.
34
18NI Application to ame nd a condition of a servicing licence
35
(1) A servicing licensee may apply to the Secretary for an amendment
36
of a condition of the servicing licence imposed under
37
section 18NG.
38
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 109
(2) The application:
1
(a) must be in writing in the form approved by the Secretary; and
2
(b) must be accompanied by the application fee prescribed for
3
the purposes of this paragraph; and
4
(c) must be accompanied by such other material as is prescribed.
5
(3) The Secretary may:
6
(a) grant the application; or
7
(b) refuse the application.
8
(4) The Secretary must give the servicing licensee written notice of the
9
decision on the application within 28 days after the application is
10
made.
11
(5) If the Secretary fails to give the servicing licensee written notice of
12
the decision within that period, the Secretary is, at the end of the
13
period, taken to have refused to grant the application.
14
18NJ Application to change servicing licensee due to change of
15
partnership
16
(1) This section applies if:
17
(a) a partnership is a servicing licensee; and
18
(b) there is or is proposed to be a change to the membership of
19
the partnership (the change) with at least one partner before
20
the change continuing as a partner after the change.
21
(2) The partnership may apply to the Secretary to amend the servicing
22
licence to state the partners who are or will be the partners after the
23
change.
24
(3) The application:
25
(a) must be in writing in the form approved by the Secretary; and
26
(b) must include information about how the partnership has
27
changed or is proposed to change; and
28
(c) must include information about any new partner that the new
29
partner would have to have given to the Secretary if the new
30
partner were applying to be a servicing licensee; and
31
(d) must be accompanied by the application fee prescribed for
32
the purposes of this paragraph.
33
Schedule 1 Trade measurement
110 National Measurement Amendment Bill 2008 No. , 2008
(4) To the extent the change involves a person ceasing to be a partner,
1
the Secretary must grant the application and amend the servicing
2
licence to remove the name of the partner from the licence.
3
(5) To the extent the change involves a new partner being admitted to
4
the partnership, the Secretary must, after considering the
5
application:
6
(a) grant the application and amend the servicing licence to
7
include the name of the new partner; or
8
(b) refuse the application.
9
The Secretary must notify the partnership in writing of the
10
decision.
11
(6) The Secretary must refuse an application under subsection (2) if
12
the Secretary would have had to refuse an application under
13
section 18NC if the new partner were applying to be a servicing
14
licensee.
15
(7) From the day on which the amendment of the servicing licence
16
takes effect, the licence is taken to be held by the partnership as it
17
exists on that day.
18
(8) The amendment of the servicing licence takes effect:
19
(a) if the partnership changed more than 28 days before the
20
application for amendment of the licence was made--at the
21
start of that 28th day; or
22
(b) if the partnership is changed on or after that 28th day but
23
before the end of the day on which the application is
24
decided--on the day on which the partnership was changed;
25
or
26
(c) if the partnership changes on a later day--on that later day.
27
18NK Application for renewal of servicing licence
28
(1) A servicing licensee may apply to the Secretary for the renewal of
29
the licensee's servicing licence.
30
(2) The application:
31
(a) must be in the form approved by the Secretary; and
32
(b) must be accompanied by the application fee prescribed for
33
the purposes of this paragraph; and
34
(c) must be accompanied by such other material as is prescribed.
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 111
(3) The Secretary may, by notice in writing to an applicant, request the
1
applicant to provide to the Secretary information or documents of
2
the kind specified in the notice within a specified period of not less
3
than 14 days.
4
(4) The Secretary may refuse the application if the notice is not
5
complied with.
6
18NL Renewal of servicing licence
7
(1) The Secretary must grant an application for the renewal of a
8
servicing licence unless:
9
(a) the Secretary would have had to refuse the application under
10
section 18NC if it had been an application made under
11
section 18NA; or
12
(b) the Secretary decides to refuse the application under
13
subsection 18NK(4).
14
(2) The Secretary must give the applicant written notice of the decision
15
on the application within 28 days after the application is made (the
16
consideration period) and, if the renewal is granted, specify the
17
period of the renewal in the notice.
18
(3) The notice must specify the period for which the licence is
19
renewed.
20
(4) If the Secretary requests an applicant under subsection 18NK(3) to
21
provide information or documents, the time taken by the applicant
22
to provide the information or documents is not to be included in the
23
consideration period.
24
(5) If the Secretary fails to give the applicant written notice of the
25
decision under subsection (2) within the consideration period the
26
Secretary is, at the end of the period, taken to have refused to grant
27
the application.
28
18NM Surrender and transfer of servicing licence
29
(1) A servicing licensee may surrender the licence by notice in writing
30
given to the Secretary.
31
(2) Subject to section 18NJ, a servicing licence is not transferable.
32
Schedule 1 Trade measurement
112 National Measurement Amendment Bill 2008 No. , 2008
18NN Order preventing employme nt of certain pe rsons
1
(1) The Secretary may, by order in writing, direct that a specified
2
person:
3
(a) is not to be employed by a servicing licensee to verify any
4
measuring instrument; or
5
(b) is not to be employed by a servicing licensee to verify a
6
specified class or classes of measuring instruments; or
7
(c) is to be employed by a servicing licensee to verify any
8
measuring instrument, or verify a specified class or classes of
9
measuring instrument, only in compliance with specified
10
conditions.
11
(2) The Secretary must not make such an order unless satisfied that it
12
is necessary to do so because of the person's lack of competency,
13
or lack of fitness in any other respect, to exercise the functions
14
concerned.
15
(3) If the Secretary makes an order under this section, the Secretary
16
must:
17
(a) serve a copy of the order on the person to whom it relates (if
18
the person's whereabouts are known to the Secretary); and
19
(b) serve a copy of the order on each servicing licensee that the
20
Secretary knows is employing that person when the order is
21
made.
22
The order comes into force on the last day on which it is served.
23
(4) It is a condition of the servicing licence of that servicing licensee
24
that the servicing licensee must not employ a person in
25
contravention of an order in force under this section.
26
18NO Offence--breaching a condition of a servicing licence
27
(1) A person commits an offence if:
28
(a) the person is a servicing licensee; and
29
(b) the person engages or fails to engage in conduct; and
30
(c) the conduct or failure is in breach of a condition of the
31
person's servicing licence.
32
Penalty: 30 penalty units.
33
(2) A person commits an offence if:
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 113
(a) the person is a servicing licensee; and
1
(b) an employee of the person engages or fails to engage in
2
conduct; and
3
(c) the conduct or failure is in breach of a condition of the
4
person's servicing licence; and
5
(d) the person expressly, tacitly or impliedly authorises or
6
permits the conduct or failure.
7
Penalty: 30 penalty units.
8
(3) A person commits an offence if:
9
(a) the person is an employee of a servicing licensee; and
10
(b) the person engages or fails to engage in conduct; and
11
(c) the conduct or failure is in breach of a condition of the
12
servicing licensee's servicing licence; and
13
(d) the conduct or failure is not within the actual or apparent
14
scope of the person's employment.
15
Penalty: 30 penalty units.
16
(4) Subsections (1), (2) and (3) are offences of strict liability.
17
Note:
For strict liability, see section 6.1 of the Criminal Code.
18
Part XI--Public weighbridges
19
Division 1--Public weighbridge licences
20
18P Overvie w
21
Overview of Part
22
(1) Public weighbridge licences are granted by the Secretary on
23
application.
24
(2) The Secretary must refuse an application if the applicant does
25
not meet certain suitability requirements.
26
(3) There are conditions that are common to all public
27
weighbridge licences. In addition, the Secretary may impose
28
conditions on a public weighbridge licence. New conditions
29
Schedule 1 Trade measurement
114 National Measurement Amendment Bill 2008 No. , 2008
may be imposed, or existing conditions amended or revoked,
1
during the life of the licence.
2
(4) Public weighbridge licences are granted for a period, but may
3
be renewed on application.
4
18PA Application for a public weighbridge licence
5
(1) A person may make an application to the Secretary for a public
6
weighbridge licence for a single weighbridge.
7
(2) 2 or more persons who carry on business together as partners may
8
make an application jointly for a public weighbridge licence for a
9
single weighbridge.
10
(3) The application:
11
(a) must be in the form approved by the Secretary; and
12
(b) must be accompanied by the application fee prescribed for
13
the purposes of this paragraph; and
14
(c) must be accompanied by such other material as is prescribed.
15
(4) The Secretary may, by notice in writing to an applicant, request the
16
applicant to provide information or documents of the kind
17
specified in the notice to the Secretary within a specified period of
18
not less than 14 days.
19
(5) The Secretary may refuse the application if the notice is not
20
complied with.
21
18PB Granting a public weighbridge licence
22
(1) The Secretary must grant an application for a public weighbridge
23
licence for a single weighbridge unless there are grounds for
24
refusal under this Act.
25
Note:
The Secretary may refuse to grant a public weighbridge licence:
26
(a)
if the applicant fails to comply with a request for further
27
information or documents (see subsection 18PA(4)); or
28
(b)
because of other circumstances set out in section 18PC.
29
(2) The Secretary must give the applicant written notice of the decision
30
on the application within 28 days after the application is made (the
31
consideration period).
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 115
(3) The notice must specify the period for which the licence is granted.
1
(4) If the Secretary requests an applicant under subsection 18PA(4) to
2
provide information or documents, the time taken by the applicant
3
to provide the information or documents is not to be included in the
4
consideration period.
5
(5) If the Secretary fails to give the applicant written notice of the
6
decision under subsection (2) within the consideration period the
7
Secretary is, at the end of the period, taken to have refused to grant
8
the application.
9
18PC Circumstances in which public weighbridge licence must be
10
refused
11
(1) The Secretary must refuse an application by an applicant for a
12
public weighbridge licence for a single weighbridge if:
13
(a) the applicant is an individual who has not reached the age of
14
18 years; or
15
(b) the applicant holds a licence under this Act that is suspended;
16
or
17
(c) the applicant is disqualified under this Act from holding a
18
licence under this Act; or
19
(d) neither:
20
(i) the applicant; nor
21
(ii) an employee of the applicant; nor
22
(iii) a person who has contracted with the applicant to
23
operate the weighbridge; nor
24
(iv) any employee of a person mentioned in
25
subparagraph (iii);
26
is competent to operate a public weighbridge; or
27
(e) the applicant or a person who has contracted with the
28
applicant to operate the weighbridge is not likely to carry on
29
the operation of a public weighbridge honestly and fairly; or
30
(f) the applicant or a person who has contracted with the
31
applicant to operate the weighbridge is in any other way not a
32
fit and proper person to operate a public weighbridge; or
33
(g) the Secretary considers that the weighbridge is not suitable
34
for use as a public weighbridge.
35
Schedule 1 Trade measurement
116 National Measurement Amendment Bill 2008 No. , 2008
(2) Without limiting the generality of paragraph (1)(f), the Secretary
1
may have regard to any or all of the following matters in
2
determining whether the applicant or a person who has contracted
3
with the applicant to operate the weighbridge (the contractor) is a
4
fit and proper person to operate a public weighbridge:
5
(a) whether the applicant or the contractor has, during the period
6
of 10 years that immediately preceded the making of the
7
application, been convicted of, or served any part of a term of
8
imprisonment for, an offence (whether under the law of the
9
Commonwealth or any other law) involving fraud or
10
dishonesty;
11
(b) whether the applicant or the contractor was, when the
12
application was made, the subject of a charge pending in
13
relation to such an offence;
14
(c) whether the applicant or the contractor has, at any time, been
15
convicted of an offence against this Act or an earlier
16
corresponding law;
17
(d) whether the applicant or the contractor has been refused a
18
licence under this Act or an earlier corresponding law.
19
18PD Where the applicant is a body corporate
20
If the applicant or the person who has contracted with the applicant
21
to operate the weighbridge is a body corporate, paragraph
22
18PC(1)(f) and paragraphs 18PC(2)(a) to (d) apply as if a reference
23
to the applicant or the person who has contracted with the applicant
24
to operate the weighbridge included a reference to a person
25
concerned in the management of the body corporate.
26
18PE Whe re the applicant is a partnership
27
(1) If the applicant is a partnership, this Division applies as if:
28
(a) a reference to the applicant, other than in subparagraph
29
18PC(1)(d)(i), were a reference to each member of the
30
partnership; and
31
(b) the reference to the applicant in subparagraph 18PC(1)(d)(i)
32
were a reference to any partner in the partnership.
33
(2) If the Secretary grants a public weighbridge licence to a
34
partnership the licence must state:
35
(a) the names of all the partners; and
36
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 117
(b) if the partnership has a registered business name, the
1
registered business name.
2
(3) Each of the partners named on the public weighbridge licence is
3
taken to be a public weighbridge licensee for the purposes of this
4
Act.
5
18PF Register of public weighbridge licences
6
The Secretary must keep a register of prescribed particulars
7
relating to public weighbridge licences.
8
18PG Conditions may be imposed on public weighbridge licences
9
(1) The Secretary may impose conditions on a public weighbridge
10
licence.
11
(2) A condition may be imposed at the time the public weighbridge
12
licence is granted or at a later time.
13
(3) A condition may be amended or revoked at any time.
14
(4) However, if a condition is to be imposed or amended after a public
15
weighbridge licence is granted, the Secretary must invite the public
16
weighbridge licensee to make written submissions in relation to the
17
proposed condition or amendment before imposing the condition,
18
or making the amendment.
19
(5) The invitation must:
20
(a) be in writing; and
21
(b) state the period of not less than 14 days within which the
22
submission must be made.
23
(6) The Secretary must notify the public weighbridge licensee in
24
writing of:
25
(a) the terms of any condition imposed on the public
26
weighbridge licence; and
27
(b) the terms of any condition of the public weighbridge licence
28
as amended; and
29
(c) the revocation of any condition of the public weighbridge
30
licence.
31
Schedule 1 Trade measurement
118 National Measurement Amendment Bill 2008 No. , 2008
(7) The amendment or revocation of a condition of the public
1
weighbridge licence takes effect on the later of:
2
(a) the day on which the notice is given; or
3
(b) the day specified in the notice.
4
18PH Conditions on all public we ighbridge licences
5
(1) A public weighbridge licence is subject to the following
6
conditions:
7
(a) a condition that the weighbridge mentioned in the licence is
8
to be located at the place stated in the licence;
9
(b) a condition that the public weighbridge licensee must ensure
10
that, if the weighbridge mentioned in the licence is made
11
available as a public weighbridge, it is not operated by any
12
person other than:
13
(i) the public weighbridge licensee; or
14
(ii) an employee of the public weighbridge licensee; or
15
(iii) a person who has contracted with the public
16
weighbridge licensee to operate the weighbridge; or
17
(iv) an employee of a person mentioned in
18
subparagraph (iii);
19
(c) if the public weighbridge licensee is an individual--a
20
condition that the public weighbridge licensee must not
21
personally operate the weighbridge mentioned in the licence
22
unless competent to do so;
23
(d) a condition that the public weighbridge licensee must not
24
employ a person to operate the weighbridge mentioned in the
25
licence unless the person is competent to do so;
26
(e) a condition that the public weighbridge licensee must not
27
contract with another person to operate the weighbridge
28
mentioned in the licence unless:
29
(i) where the contractor will operate the weighbridge
30
personally--the contractor is competent to do so; and
31
(ii) where an employee of the contractor will operate the
32
weighbridge--the employee is competent to do so;
33
(f) such other conditions as may be prescribed.
34
(2) The condition mentioned in paragraph (1)(b) does not apply to the
35
operation of a weighbridge if:
36
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 119
(a) the weighbridge is approved in writing by the Secretary for
1
direct operation by the public; and
2
(b) the public weighbridge licensee ensures that:
3
(i) the weighbridge is not operated otherwise than in
4
accordance with that condition; and
5
(ii) the weighbridge is operated only during such periods
6
and in accordance with such conditions as specified in
7
the approval.
8
18PI Application to ame nd a condition of a public weighbridge
9
licence
10
(1) A public weighbridge licensee may apply to the Secretary for an
11
amendment of a condition of the licensee's public weighbridge
12
licence imposed under section 18PG.
13
(2) The application:
14
(a) must be in writing in the form approved by the Secretary; and
15
(b) must be accompanied by the application fee prescribed for
16
the purposes of this paragraph; and
17
(c) must be accompanied by such other material as is prescribed.
18
(3) The Secretary may:
19
(a) grant the application; or
20
(b) refuse the application.
21
(4) The Secretary must give the public weighbridge licensee written
22
notice of the decision on the application within 28 days after the
23
application is made.
24
(5) If the Secretary fails to give the public weighbridge licensee
25
written notice of the decision within that period, the Secretary is, at
26
the end of the period, taken to have refused to grant the application.
27
18PJ Application to change public weighbridge licensee due to
28
change of partnership
29
(1) This section applies if:
30
(a) a partnership is a public weighbridge licensee; and
31
Schedule 1 Trade measurement
120 National Measurement Amendment Bill 2008 No. , 2008
(b) there is or is proposed to be a change to the membership of
1
the partnership (the change) with at least one partner before
2
the change continuing as a partner after the change.
3
(2) The partnership may apply to the Secretary to amend the public
4
weighbridge licence to state the partners who are or will be the
5
partners after the change.
6
(3) The application:
7
(a) must be in writing in the form approved by the Secretary; and
8
(b) must include information about how the partnership has
9
changed or is proposed to change; and
10
(c) must include information about any new partner that the new
11
partner would have to have given to the Secretary if the new
12
partner were applying to be a public weighbridge licensee;
13
and
14
(d) must be accompanied by the application fee prescribed for
15
the purposes of this paragraph.
16
(4) To the extent the change involves a person ceasing to be a partner,
17
the Secretary must grant the application and amend the public
18
weighbridge licence to remove the name of the partner from the
19
licence.
20
(5) To the extent the change involves a new partner being admitted to
21
the partnership, the Secretary must, after considering the
22
application:
23
(a) grant the application and amend the public weighbridge
24
licence to include the name of the new partner; or
25
(b) refuse the application.
26
The Secretary must notify the partnership in writing of the
27
decision.
28
(6) The Secretary must refuse an application under subsection (2) if
29
the Secretary would have had to refuse an application under
30
section 18PC if the new partner were applying to be a public
31
weighbridge licensee.
32
(7) From the day on which the amendment of the public weighbridge
33
licence takes effect, the licence is taken to be held by the
34
partnership as it exists on that day.
35
(8) The amendment of the public weighbridge licence takes effect:
36
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 121
(a) if the partnership changed more than 28 days before the
1
application for amendment of the licence was made--at the
2
start of that 28th day; or
3
(b) if the partnership is changed on or after that 28th day but
4
before the end of the day on which the application is
5
decided--on the day on which the partnership was changed;
6
or
7
(c) if the partnership changes on a later day--on that later day.
8
18PK Application to contract out the operation of the public
9
weighbridge
10
(1) This section applies if, during the term of a public weighbridge
11
licence:
12
(a) the public weighbridge licensee enters into, or proposes to
13
enter into, a contract with another person to operate the
14
public weighbridge (the contractor); and
15
(b) the public weighbridge licensee did not apply for the public
16
weighbridge licence on the basis that the contractor would
17
operate the public weighbridge.
18
(2) The public weighbridge licensee may apply to the Secretary to
19
amend the public weighbridge licence to state the person who will
20
operate the public weighbridge after the contract or variation takes
21
effect.
22
(3) The application:
23
(a) must be in writing in the form approved by the Secretary; and
24
(b) must include a copy of the contract or proposed contract; and
25
(c) must include any information about the contractor, or
26
proposed contractor, that the public weighbridge licensee
27
would have to have given to the Secretary if the licensee had
28
applied for the public weighbridge licence on the basis that
29
the contractor would operate the public weighbridge; and
30
(d) must be accompanied by the application fee prescribed for
31
the purposes of this paragraph.
32
(4) The Secretary must, after considering the application:
33
(a) grant the application and amend the public weighbridge
34
licence to include the name of the contractor; or
35
(b) refuse the application.
36
Schedule 1 Trade measurement
122 National Measurement Amendment Bill 2008 No. , 2008
The Secretary must notify the public weighbridge licensee in
1
writing of the decision.
2
(5) The Secretary must refuse an application under subsection (2) if
3
the Secretary would have had to refuse an application under
4
section 18PC if the public weighbridge licensee were applying for
5
a public weighbridge licence on the basis that the contractor would
6
operate the public weighbridge.
7
18PL Application for rene wal of public weighbridge licence
8
(1) A public weighbridge licensee may apply to the Secretary for the
9
renewal of the licensee's public weighbridge licence.
10
(2) The application:
11
(a) must be in the form approved by the Secretary; and
12
(b) must be accompanied by the application fee prescribed for
13
the purposes of this paragraph; and
14
(c) must be accompanied by such other material as is prescribed.
15
(3) The Secretary may, by notice in writing to an applicant, request the
16
applicant to provide to the Secretary information or documents of
17
the kind specified in the notice within a specified period of not less
18
than 14 days.
19
(4) The Secretary may refuse the application if the notice is not
20
complied with.
21
18PM Renewal of public weighbridge licence
22
(1) The Secretary must grant an application for the renewal of a public
23
weighbridge licence unless:
24
(a) the Secretary would have had to refuse the application under
25
section 18PC if it had been an application made under
26
section 18PA; or
27
(b) the Secretary decides to refuse the application under
28
subsection 18PL(4).
29
(2) The Secretary must give the applicant written notice of the decision
30
on the application within 28 days after the application is made (the
31
consideration period) and, if the renewal is granted, specify the
32
period of the renewal in the notice.
33
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 123
(3) The notice must specify the period for which the licence is granted.
1
(4) If the Secretary requests an applicant under subsection 18PL(3) to
2
provide information or documents, the time taken by the applicant
3
to provide the information or documents is not to be included in the
4
consideration period.
5
(5) If the Secretary fails to give the applicant written notice of the
6
decision under subsection (2) within the consideration period the
7
Secretary is, at the end of the period, taken to have refused to grant
8
the application.
9
18PN Surrender and transfer of public we ighbridge licence
10
(1) A public weighbridge licensee may surrender the licence by notice
11
in writing given to the Secretary.
12
(2) Subject to section 18PJ, a public weighbridge licence is not
13
transferable.
14
18PO Effect of relocation of licensed public weighbridge
15
(1) This section applies if a public weighbridge licensee moves a
16
weighbridge from the location at which it was inspected before it
17
was licensed to another location at the place stated in the licence.
18
(2) The public weighbridge licence for the weighbridge is taken to
19
have been surrendered under section 18PN.
20
18PP If weighbridge no longer suitable for use as public
21
weighbridge
22
(1) This section applies if the Secretary decides a licensed public
23
weighbridge is no longer suitable for use as a public weighbridge.
24
(2) The Secretary may give the public weighbridge licensee for the
25
weighbridge a notice stating:
26
(a) why the Secretary considers the weighbridge is no longer
27
suitable for use as a public weighbridge; and
28
(b) that the licensee may make a written submission to the
29
Secretary within 28 days stating why the licensee considers
30
the public weighbridge licence should not be revoked.
31
Schedule 1 Trade measurement
124 National Measurement Amendment Bill 2008 No. , 2008
(3) After considering any submissions made to the Secretary within
1
the relevant period, the Secretary may:
2
(a) decide to take no further action against the public
3
weighbridge licensee; or
4
(b) revoke the public weighbridge licence.
5
(4) The Secretary must give the public weighbridge licensee written
6
notice of the Secretary's decision under subsection (3) within 14
7
days after making the decision.
8
18PQ Order preventing employment of certain pe rsons
9
(1) The Secretary may, by order in writing, direct that a specified
10
person:
11
(a) is not to be employed by a public weighbridge licensee to
12
perform duties relating to the operation of any public
13
weighbridge; or
14
(b) is to be employed by a public weighbridge licensee to
15
perform duties relating to the operation of any public
16
weighbridge only in compliance with specified conditions.
17
(2) The Secretary must not make such an order unless satisfied that it
18
is necessary to do so because of the person's lack of competency,
19
or lack of fitness in any other respect, to exercise the functions
20
concerned.
21
(3) If the Secretary makes an order under this section, the Secretary
22
must:
23
(a) serve a copy of the order on the person to whom it relates (if
24
the person's whereabouts are known to the Secretary); and
25
(b) serve a copy of the order on each public weighbridge licensee
26
that the Secretary knows is employing that person when the
27
order is made.
28
The order comes into force on the last day on which it is served.
29
(4) It is a condition of each public weighbridge licence of that public
30
weighbridge licensee that the licensee must not employ a person in
31
contravention of an order in force under this section.
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 125
18PR Order preventing contract with certain person to ope rate
1
public weighbridge
2
(1) The Secretary may, by order in writing, direct that:
3
(a) a public weighbridge licensee must terminate any contract
4
with a specified person to operate any public weighbridge; or
5
(b) a public weighbridge licensee is to continue to contract with
6
a specified person to operate any public weighbridge only in
7
compliance with specified conditions.
8
(2) The Secretary must not make such an order unless satisfied that it
9
is necessary to do so because of the person's lack of competency,
10
or lack of fitness in any other respect, to exercise the functions
11
concerned.
12
(3) If the Secretary makes an order under this section, the Secretary
13
must:
14
(a) serve a copy of the order on the person to whom it relates (if
15
the person's whereabouts are known to the Secretary); and
16
(b) serve a copy of the order on each public weighbridge licensee
17
that the Secretary knows has contracted with the person when
18
the order is made.
19
The order comes into force on the last day on which it is served.
20
(4) It is a condition of each public weighbridge licence of that public
21
weighbridge licensee that the licensee must comply with an order
22
in force under this section.
23
(5) It is a condition of each contract entered into by the public
24
weighbridge licensee, either before or after the public weighbridge
25
licence is granted, that the licensee may vary or terminate the
26
contract if required to do so to comply with an order in force under
27
this section.
28
18PS Order preventing e mployee of a public weighbridge contractor
29
from operating public weighbridge
30
(1) The Secretary may, by order in writing, direct that a specified
31
person:
32
(a) is not to be employed by a person who has contracted with a
33
public weighbridge licensee to operate a public weighbridge
34
Schedule 1 Trade measurement
126 National Measurement Amendment Bill 2008 No. , 2008
(a contractor) to perform duties relating to the operation of
1
any public weighbridge; or
2
(b) is to be employed by a contractor to perform duties relating
3
to the operation of any public weighbridge only in
4
compliance with specified conditions.
5
(2) The Secretary must not make such an order unless satisfied that it
6
is necessary to do so because of the person's lack of competency,
7
or lack of fitness in any other respect, to exercise the functions
8
concerned.
9
(3) If the Secretary makes an order under this section, the Secretary
10
must:
11
(a) serve a copy of the order on the person to whom it relates (if
12
the person's whereabouts are known to the Secretary); and
13
(b) serve a copy of the order on each contractor that the
14
Secretary knows employs the person when the order is made;
15
and
16
(c) serve a copy of the order on each public weighbridge licensee
17
who the Secretary knows has contracted with each such
18
contractor to operate a public weighbridge.
19
The order comes into force on the last day on which it is served.
20
(4) It is a condition of each public weighbridge licence of each of
21
those public weighbridge licensees that the licensee must terminate
22
a contract for the operation of a public weighbridge with any
23
contractor who employs the person in contravention of an order in
24
force under this section.
25
(5) It is a condition of each contract for the operation of a public
26
weighbridge entered into by a public weighbridge licensee, either
27
before or after the public weighbridge licence is granted, that the
28
licensee may terminate the contract if required to do so to comply
29
with subsection (4).
30
Division 2--Offences in relation to public weighbridges
31
18PT Offence--making a we ighbridge available as a public
32
weighbridge when not licensed etc.
33
(1) A person commits an offence if:
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 127
(a) the person makes a weighbridge available as a public
1
weighbridge; and
2
(b) the person is not:
3
(i) a public weighbridge licensee; or
4
(ii) an employee of a public weighbridge licensee; or
5
(iii) a person who has contracted with a public weighbridge
6
licensee to operate the weighbridge as a public
7
weighbridge; or
8
(iv) an employee of a person mentioned in
9
subparagraph (iii).
10
Penalty: 30 penalty units.
11
(2) Subsection (1) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
18PU Offence--breaching a condition of a public weighbridge
14
licence
15
Public weighbridge licensee
16
(1) A person commits an offence if:
17
(a) the person is a public weighbridge licensee; and
18
(b) the person engages or fails to engage in conduct; and
19
(c) the conduct or failure is in breach of a condition of the
20
person's public weighbridge licence.
21
Penalty: 30 penalty units.
22
(2) A person commits an offence if:
23
(a) the person is a public weighbridge licensee; and
24
(b) an employee of the person engages or fails to engage in
25
conduct; and
26
(c) the conduct or failure is in breach of a condition of the
27
person's public weighbridge licence; and
28
(d) the person expressly, tacitly or impliedly authorises or
29
permits the conduct or failure.
30
Penalty: 30 penalty units.
31
Schedule 1 Trade measurement
128 National Measurement Amendment Bill 2008 No. , 2008
Employee of public weighbridge licensee
1
(3) A person commits an offence if:
2
(a) the person is an employee of a public weighbridge licensee;
3
and
4
(b) the person engages or fails to engage in conduct; and
5
(c) that conduct or failure is in breach of a condition of the
6
public weighbridge licensee's licence; and
7
(d) the conduct or failure is not within the actual or apparent
8
scope of the person's employment.
9
Penalty: 30 penalty units.
10
Person who contracts with public weighbridge licensee to operate
11
weighbridge
12
(4) A person commits an offence if:
13
(a) the person contracts with a public weighbridge licensee to
14
operate a public weighbridge; and
15
(b) the person engages or fails to engage in conduct; and
16
(c) the conduct or failure is in breach of a condition of the public
17
weighbridge licensee's licence.
18
Penalty: 30 penalty units.
19
(5) A person commits an offence if:
20
(a) the person contracts with a public weighbridge licensee to
21
operate a public weighbridge; and
22
(b) an employee of the person engages or fails to engage in
23
conduct; and
24
(c) the conduct or failure is in breach of a condition of the public
25
weighbridge licensee's licence; and
26
(d) the person expressly, tacitly or impliedly authorises or
27
permits the conduct or failure.
28
Penalty: 30 penalty units.
29
Employee of person who contracts with public weighbridge
30
licensee to operate weighbridge
31
(6) A person commits an offence if:
32
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 129
(a) the person is an employee of a person who contracts with a
1
public weighbridge licensee to operate a public weighbridge;
2
and
3
(b) the person engages or fails to engage in conduct; and
4
(c) that conduct or failure is in breach of a condition of the
5
public weighbridge licensee's licence; and
6
(d) the conduct or failure is not within the actual or apparent
7
scope of the person's employment.
8
Penalty: 30 penalty units.
9
(7) Subsections (1) to (6) are offences of strict liability.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
Part XII--Disciplinary action against servicing
12
licensees and public weighbridge licensees
13
14
18Q Overview
15
Overview of Part
16
(1) This Part contains provisions about the disciplinary action that
17
may be taken against servicing licensees and public
18
weighbridge licensees.
19
(2) Section 18QA sets out the grounds on which disciplinary
20
action may be taken.
21
(3) The kinds of disciplinary action that may be taken are:
22
(a) reprimanding the licensee; or
23
(b) imposing a condition on the licence; or
24
(c) suspending the licence; or
25
(d) cancelling the licence; or
26
(e) accepting an enforceable undertaking from the
27
licensee; or
28
Schedule 1 Trade measurement
130 National Measurement Amendment Bill 2008 No. , 2008
(f) publicising information about particular
1
disciplinary action.
2
18QA Grounds for disciplinary action
3
(1) Each of the following constitutes grounds for disciplinary action
4
against a servicing licensee or a public weighbridge licensee:
5
(a) the licensee has failed to comply with a provision of this Act,
6
or with a condition of the licence;
7
(b) the licensee has been found guilty of an offence involving
8
fraud or dishonesty;
9
(c) in the case of a servicing licensee--continuously, for a period
10
prescribed by the regulations, neither the licensee nor any
11
employee of the licensee is competent to perform the
12
functions and duties of a verifier;
13
(d) in the case of a public weighbridge licensee--continuously,
14
for a period prescribed by the regulations, neither:
15
(i) the licensee; nor
16
(ii) an employee of the licensee; nor
17
(iii) a person who contracts with the licensee to operate the
18
weighbridge; nor
19
(iv) an employee of a person mentioned in
20
subparagraph (iii);
21
has the competencies appropriate to operate the public
22
weighbridge;
23
(e) the activities to which the licence relates are being carried on
24
in a dishonest or unfair manner;
25
(f) the Secretary would be required by sections 18NC or 18PC to
26
refuse an application for a licence by the licensee (if the
27
licensee were not already licensed);
28
(g) the licensee has been refused a licence under this Act or an
29
earlier corresponding law;
30
(h) the licensee is the subject of disciplinary action under
31
section 18QC or under the equivalent provision of an earlier
32
corresponding law;
33
(i) the licensee is not, for any other reason, a fit and proper
34
person to continue to hold a licence.
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 131
(2) A ground for disciplinary action under subsection (1) exists in
1
relation to a licensee that is a partnership if:
2
(a) in relation to the grounds mentioned in paragraphs (a), (b),
3
(f), (g), (h) and (i)--the ground exists in relation to any one
4
or more of the members of the partnership; and
5
(b) in relation to the grounds mentioned in paragraphs (c) and
6
(d)--neither the partners nor anyone else mentioned in those
7
paragraphs has the competencies mentioned in those
8
paragraphs.
9
(3) A ground for disciplinary action under paragraph (1)(i) exists in
10
relation to a licensee that is a body corporate if it exists in relation
11
to a person concerned in the management of the body corporate.
12
18QB Notice to licensee of grounds for disciplinary action
13
(1) If the Secretary reasonably suspects that there are grounds for
14
disciplinary action against a servicing licensee or a public
15
weighbridge licensee, the Secretary may serve a written notice on
16
the licensee:
17
(a) giving full particulars of those grounds, including particulars
18
for the reasons for any general ground; and
19
(b) calling on the licensee to show cause within a reasonable
20
period specified in the notice why the Secretary should not
21
take disciplinary action on those grounds against the licensee
22
under section 18QC.
23
(2) A licensee on whom such a notice is served may, within the period
24
allowed by the notice, make a written submission to the Secretary
25
on the matters concerned.
26
18QC Taking disciplinary action
27
(1) If, after consideration of any submissions made by the licensee
28
within the period allowed, the Secretary is satisfied that grounds
29
for disciplinary action against a licensee have been established, the
30
Secretary may:
31
(a) reprimand the licensee; or
32
(b) impose a condition on the licence; or
33
(c) suspend the licence for up to 12 months; or
34
Schedule 1 Trade measurement
132 National Measurement Amendment Bill 2008 No. , 2008
(d) act under any combination of 2 or more of paragraphs (a), (b)
1
and (c); or
2
(e) cancel the licence and disqualify the former licensee
3
permanently or for a specified period from holding a licence.
4
(2) The Secretary may take the disciplinary action by written notice
5
given to the licensee.
6
(3) That notice takes effect:
7
(a) at the end of the period for lodging an application for a
8
review of the decision by the Administrative Appeals
9
Tribunal; and
10
(b) if such an application has been made within that period--on
11
determination or abandonment of the application, unless the
12
Administrative Appeals Tribunal orders otherwise.
13
18QD Accepting undertakings
14
(1) The Secretary may, either instead of or in addition to taking
15
disciplinary action under section 18QC, accept a written
16
undertaking given by the licensee.
17
(2) The licensee may vary or withdraw the undertaking at any time,
18
but only with the consent of the Secretary.
19
18QE Enforcing unde rtakings
20
(1) If the Secretary considers that a licensee who gave an undertaking
21
under section 18QD has breached a term of the undertaking, the
22
Secretary may apply to the Federal Court of Australia or the
23
Federal Magistrates Court for an order under subsection (2).
24
(2) If the court is satisfied that the licensee has breached a term of the
25
undertaking, the court may make one or more of the following
26
orders:
27
(a) an order directing the licensee to comply with that term of the
28
undertaking;
29
(b) an order directing the licensee to pay to the Commonwealth
30
an amount up to the amount of any financial benefit that the
31
licensee has obtained directly or indirectly and that is
32
reasonably attributable to the breach;
33
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 133
(c) any order that the court considers appropriate directing the
1
person to compensate any other person who has suffered loss
2
or damage as a result of the breach;
3
(d) any other order that the court considers appropriate.
4
18QF Secretary may publicise grounds on which disciplinary action
5
taken, etc.
6
(1) The Secretary may publicise, in any way he or she thinks
7
appropriate, the grounds on which disciplinary action is taken
8
against a licensee, and the disciplinary action taken.
9
(2) This section does not:
10
(a) limit the Secretary's powers to publicise those details; or
11
(b) prevent anyone else from publicising those details; or
12
(c) affect any obligation (however imposed) on anyone to
13
publicise those details.
14
Part XIII--Utility meter verifiers
15
Division 1--Appointment of utility meter verifiers on
16
application
17
18R Applying to be a utility meter verifie r
18
(1) A person may apply for appointment as a utility meter verifier.
19
(2) An application must be:
20
(a) made in the form approved by the Secretary; and
21
(b) given to the Secretary.
22
18RA Appointme nt of utility meter verifiers
23
(1) The Secretary may, in writing, appoint a person who has applied
24
under section 18R to be a utility meter verifier.
25
(2) The appointment must specify the class or classes of utility meters
26
that the utility meter verifier may verify under the appointment.
27
(3) An appointment is subject to:
28
(a) the conditions set out in paragraphs 18RB(a) to (g); and
29
Schedule 1 Trade measurement
134 National Measurement Amendment Bill 2008 No. , 2008
(b) any other conditions that the Secretary imposes.
1
(4) The Secretary may impose a condition referred to in
2
paragraph (3)(b) at the time of making the appointment or after the
3
appointment is made. The Secretary may vary or revoke a
4
condition at any time.
5
(5) Except when acting under section 18RG (following a breach of
6
conditions), the Secretary must not impose, vary or revoke a
7
condition unless the utility meter verifier has first been consulted.
8
18RB Conditions on appointme nt of utility meter ve rifiers
9
The appointment of a person as a utility meter verifier under
10
section 18RA is subject to the following conditions:
11
(a) that the verifier is accredited by the National Association of
12
Testing Authorities to test the class or classes of utility
13
meters specified in the verifier's appointment;
14
(b) if the verifier employs persons to verify utility meters--that
15
the verifier provide a list to the Secretary of the employees
16
who will verify utility meters;
17
(c) that the verifier, and its employees (if any), comply with the
18
requirements of this Act;
19
(d) that the verifier, and its employees (if any), comply with the
20
requirements of a trade measurement inspector made under
21
this Act;
22
(e) that the verifier maintain such reference standards of
23
measurement as the Secretary specifies in writing;
24
(f) that the verifier participate in such training in respect of the
25
verification of utility meters as the Secretary requires in
26
writing;
27
(g) that the verifier report as required in writing by the Secretary
28
concerning its role as a utility meter verifier.
29
18RC Secretary must allocate utility meter verifie r's mark
30
When the Secretary appoints a utility meter verifier under
31
section 18RA, the Secretary must allocate the following utility
32
meter verifier's marks for use by the verifier, or its employees (if
33
any), when verifying utility meters:
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 135
(a) if the verifier will be personally undertaking the
1
verification--a mark for use by the verifier; and
2
(b) if the verifier will be employing persons to undertake the
3
verification--a separate mark for use by each employee.
4
Division 2--Disciplinary action against utility meter
5
verifiers appointed on application
6
18RD Notice to utility meter verifie r of intention to take disciplinary
7
action
8
If the Secretary is of the opinion that there may be grounds for
9
taking disciplinary action under section 18RG against a utility
10
meter verifier appointed under section 18RA because it is in breach
11
of a condition of its appointment, the Secretary must:
12
(a) give the verifier written notice of the Secretary's opinion
13
specifying the reasons for the opinion; and
14
(b) invite the verifier to make a written submission to the
15
Secretary within 14 days.
16
18RE Secretary may seek further information
17
The Secretary may ask the utility meter verifier, in writing, to give
18
to the Secretary, within the period specified in the request,
19
information for the purpose of making a decision under
20
section 18RG.
21
18RF Secretary must consider utility meter verifier's submission
22
and information in making a decision unde r section 18RG
23
In making a decision under section 18RG in respect of a utility
24
meter verifier, the Secretary must have regard to the matters raised
25
in the verifier's submission (if any) and any information received
26
by the Secretary under section 18RE.
27
18RG Taking of disciplinary action against a utility meter verifie r
28
(1) If the Secretary is satisfied that a utility meter verifier appointed
29
under section 18RA has breached a condition of its appointment,
30
the Secretary may decide:
31
Schedule 1 Trade measurement
136 National Measurement Amendment Bill 2008 No. , 2008
(a) to take any or all of the following actions in respect of the
1
breach:
2
(i) to reprimand the verifier;
3
(ii) to vary or revoke a condition of the verifier's
4
appointment or to impose a further condition on the
5
verifier's appointment;
6
(iii) to suspend the verifier's appointment for up to 12
7
months; or
8
(b) to revoke the verifier's appointment.
9
(2) The following actions take effect on a day specified in writing by
10
the Secretary:
11
(a) a variation or revocation of a condition of a utility meter
12
verifier's appointment;
13
(b) the imposition of a further condition on a utility meter
14
verifier's appointment;
15
(c) the revocation of a utility meter verifier's appointment.
16
(3) Written notice of a decision of the Secretary under this section
17
must be given to the utility meter verifier concerned. The notice
18
must also include reasons for the decision.
19
(4) The day specified by the Secretary under subsection (2) must not
20
be a day earlier than the seventh day after the day on which written
21
notice of the Secretary's decision under this section is given to the
22
utility meter verifier.
23
Division 3--Appointing Commonwealth or State officials
24
etc. as utility meter verifiers
25
18RH Appointment of Commonwealth or State officials etc. as
26
utility meter verifie rs
27
(1) The Secretary may, in writing, appoint one or more of the
28
following person to be utility meter verifiers:
29
(a) an APS employee (whether or not in the Department);
30
(b) a Commonwealth authority;
31
(c) an employee (whether or not an APS employee) of a
32
Commonwealth authority;
33
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 137
(d) the holder of an office established by or under a law of the
1
Commonwealth;
2
(e) a body corporate established for a public purpose by or under
3
a law of a State or Territory;
4
(f) a State or Territory officer.
5
(2) The Secretary may appoint a body or person mentioned in
6
paragraph (1)(e) or (f) only if the State or Territory concerned
7
agrees to the appointment.
8
(3) The appointment must specify:
9
(a) the class or classes of utility meters that the utility meter
10
verifier may verify under the appointment; and
11
(b) the period of the appointment.
12
(4) An appointment is subject to conditions that the Secretary imposes.
13
(5) The Secretary may impose a condition at the time of making the
14
appointment or after the appointment is made.
15
18RI Secretary must allocate verification marks to utility meter
16
verifie rs appointed under section 18RH
17
When the Secretary appoints a utility meter verifier under
18
section 18RH, the Secretary must allocate the following
19
verification marks for use by the verifier, or its employees (if any),
20
when verifying utility meters:
21
(a) if the verifier will be personally undertaking the
22
verification--a mark for use by the verifier; and
23
(b) if the verifier will be employing persons to undertake the
24
verification--a separate mark for use by each employee.
25
66 Part VI (heading)
26
Repeal the heading, substitute:
27
Part XIV--Miscellaneous
28
67 Paragraph 19A(1)(d)
29
Omit "the admissibility of the matters certified to as evidence",
30
substitute "the admission as prima facie evidence of the matters stated
31
in the document".
32
Schedule 1 Trade measurement
138 National Measurement Amendment Bill 2008 No. , 2008
68 Subsection 19A(6)
1
Repeal the subsection.
2
69 At the end of section 19A
3
Add:
4
(8) The Chief Metrologist may charge the prescribed fee for:
5
(a) the examination of patterns of measuring instruments under
6
this section; and
7
(b) the approval and verification of patterns of measuring
8
instruments as patterns of measuring instruments under this
9
section; and
10
(c) the issuing of certificates in respect of the approval and
11
verification of patterns of measuring instruments under this
12
section.
13
70 Paragraph 19AAA(1)(a)
14
Repeal the paragraph, substitute:
15
(a) the limits of error that may be tolerated in a measuring
16
instrument of the same kind as the original instrument when
17
the instrument is tested for the purposes of this Act; and
18
71 Subsection 19AAB(3)
19
Repeal the subsection.
20
72 After section 19B
21
Insert:
22
19C Offences committed by employees--liability of employee
23
A person is not criminally responsible for an offence against a
24
provision of Part IV, V, VI or VII if:
25
(a) a physical element of the offence is committed by the person
26
as an employee; and
27
(b) the person was acting within the actual or apparent scope of
28
his or her employment.
29
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 139
19D Offences committed by employees--liability of employer
1
(1) If a physical element of an offence against a provision of Part IV,
2
V, VI or VII is committed by an employee of a person (the
3
employer) other than a body corporate acting within the actual or
4
apparent scope of his or her employment, the physical element
5
must also be attributed to the employer.
6
(2) If intention, knowledge or recklessness is a fault element in
7
relation to a physical element of the offence, that fault element
8
must be attributed to the employer if the employer expressly,
9
tacitly or impliedly authorised or permitted the commission of the
10
offence.
11
19E Offences committed by agents--liability of agent
12
A person is not criminally responsible for an offence against a
13
provision of Part IV, V, VI or VII if:
14
(a) a physical element of the offence is committed by the person
15
as an agent of another person; and
16
(b) the person was acting within the actual or apparent scope of
17
his or her authority.
18
19F Offences committed by agents--liability of principal
19
(1) If a physical element of an offence against a provision of Part IV,
20
V, VI or VII is committed by an agent of a person (the principal)
21
other than a body corporate acting within the actual or apparent
22
scope of his or her authority, the physical element must also be
23
attributed to the principal.
24
(2) If intention, knowledge or recklessness is a fault element in
25
relation to a physical element of the offence, that fault element
26
must be attributed to the principal if the principal expressly, tacitly
27
or impliedly authorised or permitted the commission of the
28
offence.
29
Schedule 1 Trade measurement
140 National Measurement Amendment Bill 2008 No. , 2008
19G Offence committed by a body corporate--liability of directors
1
etc.
2
(1) If a physical element of an offence is committed by a body
3
corporate, the physical element must also be attributed to each
4
person who is:
5
(a) a director of the body corporate; or
6
(b) an employee, agent or officer of the body corporate with
7
duties of such responsibility that his or her conduct may
8
fairly be assumed to represent the body corporate's policy.
9
(2) If intention, knowledge or recklessness is a fault element in
10
relation to a physical element of the offence, that fault element
11
must be attributed to a director of the body corporate if the
12
director:
13
(a) intentionally, knowingly or recklessly carried out the relevant
14
conduct; or
15
(b) expressly, tacitly or impliedly authorised or permitted the
16
commission of the offence.
17
(3) If intention, knowledge or recklessness is a fault element in
18
relation to a physical element of the offence, that fault element
19
must be attributed to a person mentioned in paragraph (1)(b) if the
20
person:
21
(a) intentionally, knowingly or recklessly carried out the relevant
22
conduct; or
23
(b) expressly, tacitly or impliedly authorised or permitted the
24
commission of the offence.
25
19H Protected information
26
(1) This section applies to a person:
27
(a) who is or has been a trade measurement inspector; or
28
(b) who is or has been employed or engaged by the Department;
29
or
30
(c) who is performing, or has performed, functions or duties
31
under this Act.
32
(2) A person to whom this section applies commits an offence if:
33
(a) the person obtains protected information; and
34
(b) the person does any of the following:
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 141
(i) copies, or makes a record of, the protected information;
1
(ii) uses the protected information;
2
(iii) discloses the protected information to any person.
3
Penalty: Imprisonment for 2 years.
4
(3) Subsection (2) does not apply if:
5
(a) the person copies, records, uses or discloses the protected
6
information for the purposes of performing functions or
7
exercising powers under this Act; or
8
(b) the person obtains the protected information for any other
9
lawful purpose; or
10
(c) the person obtains consent from the person to whom the
11
protected information relates for the copying, recording, use
12
or disclosure of the protected information; or
13
(d) the person believes, on reasonable grounds, that the copying,
14
recording, use or disclosure of the protected information is
15
necessary for the purpose of preserving the safety of another
16
person or other persons.
17
Note 1:
A defendant bears an evidential burden in relation to a matter in
18
subsection (3), see subsection 13.3(3) of the Criminal Code.
19
Note 2:
The Privacy Act 1988 also imposes limitations on the use or disclosure
20
of protected information if it is personal information for the purposes
21
of that Act.
22
(4) Except where it is necessary to do so for the purposes of giving
23
effect to this Act, the person must not be required to:
24
(a) produce to a court a document containing protected
25
information; or
26
(b) disclose protected information to a court.
27
(5) In this section:
28
court includes any tribunal, authority or person having power to
29
require the production of documents or the answering of questions.
30
personal information has the same meaning as in the Privacy Act
31
1988.
32
protected information means information acquired under or for the
33
purposes of this Act that is:
34
(a) personal information; or
35
Schedule 1 Trade measurement
142 National Measurement Amendment Bill 2008 No. , 2008
(b) information that relates to the personal affairs or business
1
affairs of a person.
2
19J Review by Administrative Appeals Tribunal of decisions under
3
this Act
4
An application may be made to the Administrative Appeals
5
Tribunal for the review of each of the following decisions:
6
(a) a decision under section 18JX to refuse to issue a permit;
7
(b) a decision under section 18NB to refuse an application by a
8
person to be a servicing licensee;
9
(c) a decision under section 18NG to impose a condition on a
10
servicing licence;
11
(d) a decision under subsection 18NG(3) to amend a condition of
12
a servicing licence;
13
(e) a decision under section 18NI to refuse an application to
14
amend a condition of a servicing licence;
15
(f) a decision under section 18NJ to refuse an application to
16
amend a servicing licence because of a change in the
17
partnership holding the licence;
18
(g) a decision under section 18NL to refuse to renew a servicing
19
licence;
20
(h) a decision under section 18NN to make an order in respect of
21
a person;
22
(i) a decision under section 18PB to refuse an application by a
23
person to be a public weighbridge licensee;
24
(j) a decision under section 18PG to impose a condition on a
25
public weighbridge licence;
26
(k) a decision under subsection 18PG(3) to amend a condition of
27
a public weighbridge licence;
28
(l) a decision under section 18PI to refuse an application to
29
amend a condition of a public weighbridge licence;
30
(m) a decision under section 18PJ to refuse an application to
31
amend a public weighbridge licence because of a change in
32
the partnership holding the licence;
33
(n) a decision under section 18PM to refuse to renew a public
34
weighbridge licence;
35
(o) a decision under section 18PP to revoke a public weighbridge
36
licence;
37
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 143
(p) a decision under section 18PQ, 18PR or 18PS to make an
1
order in respect of a person;
2
(q) a decision under section 18QC to take disciplinary action
3
against a servicing licensee or a public weighbridge licensee;
4
(r) a decision under section 18RA to refuse an application by a
5
person to be a utility meter verifier;
6
(s) a decision under paragraph 18RA(3)(b) to impose a condition
7
on a utility meter verifier's appointment;
8
(t) a decision under subsection 18RA(4) to vary or revoke a
9
condition on a utility meter verifier's appointment;
10
(u) a decision under section 18RG to take disciplinary action
11
against a utility meter verifier.
12
19K Jurisdiction of the Federal Court of Australia and the Federal
13
Magistrates Court
14
Jurisdiction is conferred on the Federal Court of Australia and the
15
Federal Magistrates Court in respect of matters arising under the
16
following provisions:
17
(a) section 18LN;
18
(b) section 18LO;
19
(c) in relation to the Federal Court of Australian only--
20
section 18MR;
21
(d) section 18QE.
22
19L Fees recoverable as a debt due to the Commonwealth
23
A fee payable under this Act may be recovered in a court of
24
competent jurisdiction as a debt due to the Commonwealth.
25
19M Rights may be amended, suspended or cancelled etc.
26
(1) A right granted under this Act is granted on the basis that:
27
(a) where the right is a servicing licence:
28
(i) it may be amended under section 18NG or 18NI or
29
paragraph 18QC(1)(b); and
30
(ii) it may be suspended or cancelled under paragraph
31
18QC(1)(c) or (e); and
32
(b) where the right is a public weighbridge licence:
33
Schedule 1 Trade measurement
144 National Measurement Amendment Bill 2008 No. , 2008
(i) it may be amended under section 18PG or 18PI or
1
paragraph 18QC(1)(b); and
2
(ii) it may be suspended or cancelled under paragraph
3
18QC(1)(c) or (e); and
4
(c) where the right is a permit granted under section 18JX--it
5
may be amended or cancelled under subsection 18JX(8); and
6
(d) where the right is in relation to an appointment as a utility
7
meter verifier:
8
(i) it may be amended under section 18RA or 18RG; and
9
(ii) it may be suspended or revoked under section 18RG;
10
(e) in the case of any right--it may be cancelled, revoked,
11
terminated or amended by or under subsequent legislation;
12
and
13
(f) no compensation is payable if the right is cancelled, revoked,
14
terminated or amended as mentioned in any of the above
15
paragraphs.
16
(2) For the purposes of this section, right includes anything that is
17
property within the meaning of paragraph 51(xxxi) of the
18
Constitution.
19
19N Compensation for acquisition of property
20
(1) If the operation of this Act would result in an acquisition of
21
property from a person otherwise than on just terms, the
22
Commonwealth is liable to pay a reasonable amount of
23
compensation to the person.
24
(2) If the Commonwealth and the person do not agree on the amount
25
of the compensation, the person may institute proceedings in a
26
court of competent jurisdiction for the recovery from the
27
Commonwealth of such reasonable amount of compensation as the
28
court determines.
29
(3) In this section:
30
acquisition of property has the same meaning as in paragraph
31
51(xxxi) of the Constitution.
32
just terms has the same meaning as in paragraph 51(xxxi) of the
33
Constitution.
34
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 145
19P Evidentiary matters--signature of Secretary or trade
1
measurement inspector
2
A document purporting to be signed by the Secretary or a trade
3
measurement inspector is taken to be signed by that person unless
4
the contrary is established.
5
73 Paragraph 20(1)(a)
6
Omit "to be evidence", substitute "to be prima facie evidence".
7
74 After paragraph 20(1)(a)
8
Insert:
9
(aaa) providing for the provision, maintenance, custody and care of
10
standards of measurement; and
11
75 Paragraph 20(1)(e)
12
Omit "to be evidence", substitute "to be prima facie evidence".
13
76 Paragraph 20(1)(f)
14
Omit "Part VA", substitute "Part IV".
15
77 Paragraph 20(1)(g)
16
Omit "and the verification marking of utility meters used for trade".
17
78 Paragraph 20(1)(i)
18
Omit "verifying authorities", substitute "utility meter verifiers".
19
79 Paragraph 20(1)(j)
20
Omit "utility meters", substitute "measuring instruments".
21
80 After paragraph 20(1)(j)
22
Insert:
23
(ja) providing for the positioning of, and access to, measuring
24
instruments in order to facilitate their use by a person for
25
trade, their examination by a verifier and their verification;
26
and
27
(jb) providing for the sealing of a measuring instrument that has
28
been verified; and
29
Schedule 1 Trade measurement
146 National Measurement Amendment Bill 2008 No. , 2008
(jc) providing for quality assurance for measuring instruments
1
used by persons for trade, and the provision of labour,
2
facilities and equipment for that purpose; and
3
(jd) providing for matters applicable to weighbridges, whether or
4
not public weighbridges, including their installation,
5
functioning, operation, examination, testing, suitability and
6
use; and
7
(je) providing for the functions of operators of public
8
weighbridges; and
9
(jf) regulating the advertising of articles (including articles
10
packed in advance ready for sale) in so far as the advertising
11
relates to measurement; and
12
(jg) providing for the keeping of records relating to measuring
13
instruments and articles or utilities sold, or to be sold, by
14
measurement; and
15
81 Paragraph 20(1)(k)
16
Repeal the paragraph, substitute:
17
(k) prescribing a fee for applications; and
18
82 Subparagraph 20(1)(l)(ii)
19
Repeal the subparagraph, substitute:
20
(ii) the verification of measuring instruments used for trade;
21
and
22
83 At the end of paragraph 20(1)(l)
23
Add:
24
; and (iii) the issue of a certificate in relation to the verification of
25
a measuring instrument used for trade; and
26
(iv) the issue of a permit for a packed article under
27
Division 5 of Part VI; and
28
84 At the end of subsection 20(1)
29
Add:
30
; and (n) prescribing appropriate limits of error for a measuring
31
instrument for the purposes of the definition of measuring
32
instrument gives an inaccurate measurement; and
33
(o) prescribing the re-verification period for a class of measuring
34
instrument; and
35
Trade measurement Schedule 1
National Measurement Amendment Bill 2008 No. , 2008 147
(p) prescribing AQS marks; and
1
(q) prescribing AQS thresholds for the purposes of
2
Subdivision 3-C of Division 3 of Part VI; and
3
(r) prescribing AQS sampling procedures for the purposes of
4
Subdivision 3-C of Division 3 of Part VI; and
5
(s) prescribing AQS test procedures for the purposes of
6
Subdivision 3-C of Division 3 of Part VI; and
7
(t) prescribing the circumstances in which a group of packages
8
is taken to have failed testing in accordance with AQS test
9
procedures; and
10
(u) prescribing national sampling procedures for the purposes of
11
Subdivision 4-B of Division 4 of Part VI; and
12
(v) prescribing national group test procedures for the purposes of
13
Subdivision 4-B of Division 4 of Part VI; and
14
(w) prescribing national single article test procedures for the
15
purposes of Subdivision 4-B of Division 4 of Part VI; and
16
(x) prescribing national test thresholds for the purposes of
17
Subdivision 4-B of Division 4 of Part VI; and
18
(y) prescribing the circumstances in which a group of packages
19
is taken to have failed testing in accordance with national
20
group test procedures; and
21
(z) prescribing the circumstances in which a package is taken to
22
have failed testing in accordance with national single article
23
test procedures; and
24
(za) provide for the issue of infringement notices that specify
25
penalties of no more than 5 penalty units for specified
26
offences against the regulations.
27
85 Subsection 20(3)
28
Repeal the subsection, substitute:
29
(3) A fee mentioned in subsection (1) must not be such as to amount to
30
taxation.
31
32
Schedule 2 Application and transitional provisions
Part 1 Preliminary
148 National Measurement Amendment Bill 2008 No. , 2008
1
Schedule 2
--
Application and transitional
2
provisions
3
Part 1
--
Preliminary
4
1 Definitions
5
(1)
In this Schedule:
6
administering authority means the person who, under an earlier
7
corresponding law, is the administering authority for the purposes of the
8
earlier corresponding law.
9
commencing day means 1 July 2009.
10
earlier corresponding law has the same meaning as in the National
11
Measurement Act 1960, as amended by item 12 of Schedule 1.
12
licensing authority means the person who, under an earlier
13
corresponding law, is the licensing authority for the purposes of the
14
earlier corresponding law.
15
new law means the National Measurement Act 1960, as amended by
16
Schedule 1.
17
transition day means 1 July 2010.
18
(2)
Subject to subitem (1), an expression used in this Schedule that is also
19
used in the new law has the same meaning in this Schedule as it has in
20
the new law.
21
22
Application and transitional provisions Schedule 2
General application provisions Part 2
National Measurement Amendment Bill 2008 No. , 2008 149
1
Part 2
--
General application provisions
2
2 Application of Part IV of new law
3
Part IV of the new law applies to:
4
(a) in relation to offences in relation to utility meters--conduct
5
occurring on or after the commencing day; and
6
(b) in relation to the verification of utility meters--verification
7
on or after the commencing day; and
8
(c) in relation to offences in relation to any other measuring
9
instrument--conduct occurring on or after the transition day;
10
and
11
(d) in relation to the verification of any other measuring
12
instrument--verification on or after the transition day.
13
3 Application of Parts V, VI and VII of new law
14
(1)
Parts V, VI and VII of the new law apply to conduct occurring on or
15
after the transition day, unless otherwise specified in this item.
16
(2)
Section 18HH of the new law applies to measuring instruments and
17
methods of measurement used by trade measurement inspectors:
18
(a) in relation to utility meters--on or after the commencing day;
19
and
20
(b) in all other cases--on or after the transition day.
21
(3)
Sections 18JX and 18JY of the new law apply to articles imported, sold
22
or possessed, offered or exposed for sale, on or after the transition day.
23
(4)
Paragraphs 18HF(2)(b) and (c) of the new law apply to contracts
24
entered into on or after the transition day.
25
4 Application of section 18LE of new law
26
Section 18LE of the new law applies in relation to an article packed in
27
advance ready for sale on or after the transition day.
28
5 Application of sections 18LQ, 18PR and 18PS of new law
29
The following provisions of the new law apply to contracts entered into
30
on or after the transition day:
31
(a) section 18LQ;
32
Schedule 2 Application and transitional provisions
Part 2 General application provisions
150 National Measurement Amendment Bill 2008 No. , 2008
(b) subsection 18PR(5);
1
(c) subsection 18PS(5).
2
6 Licences granted under Part X of new law
3
If the Secretary grants a servicing licence under section 18NB of the
4
new law before the transition day, the licence comes into force on:
5
(a) the transition day; or
6
(b) a later day specified in the notice given to the applicant under
7
subsection 18NB(2).
8
7 Licences granted under Part XI of new law
9
If the Secretary grants a public weighbridge licence under section 18PB
10
of the new law before the transition day, the licence comes into force
11
on:
12
(a) the transition day; or
13
(b) a later day specified in the notice given to the applicant under
14
subsection 18PB(2).
15
16
Application and transitional provisions Schedule 2
Marks and verification generally Part 3
National Measurement Amendment Bill 2008 No. , 2008 151
1
Part 3
--
Marks and verification generally
2
8 Continued recognition of existing verification and
3
certification marks
4
(1)
This item applies if:
5
(a) a measuring instrument has been marked under an earlier
6
corresponding law with an inspector's mark or a licensee's
7
mark (within the meaning of the earlier corresponding law);
8
and
9
(b) the mark is present on the instrument immediately before the
10
transition day; and
11
(c) the presence of the mark on the instrument at that time is in
12
accordance with the earlier corresponding law.
13
(2)
Subject to subitem (3), on and from the transition day the instrument is
14
taken to be a measuring instrument verified for the purposes of the new
15
law.
16
(3)
If the instrument is of a class for which a re-verification period is
17
prescribed under paragraph 18GG(1)(b) of the new law:
18
(a) the re-verification period is taken to have started on the day
19
on which the instrument was last marked with an inspector's
20
mark or licensee's mark under the earlier corresponding law;
21
and
22
(b) the instrument ceases to be verified at the end of the
23
re-verification period, unless re-verified before that day.
24
(4)
If the re-verification period prescribed under paragraph 18GG(1)(b)
25
would, on the application of paragraph (3)(a) of this item, end before
26
the transition day, the instrument does not cease to be verified under
27
paragraph (3)(b) of this item, but does cease to be verified on the last
28
day of the period of 1 month beginning at the start of the transition day,
29
unless re-verified before that day.
30
9 Continued use of existing licensee's mark
31
(1)
This item applies if:
32
(a) a mark (the old mark) has been approved by a licensing
33
authority for use by or on behalf of a person holding a
34
servicing licence under an earlier corresponding law (the
35
Schedule 2 Application and transitional provisions
Part 3 Marks and verification generally
152 National Measurement Amendment Bill 2008 No. , 2008
licensee) in certifying a measuring instrument under the
1
earlier corresponding law; and
2
(b) immediately before the transition day:
3
(i) the approval has not been revoked under the earlier
4
corresponding law; and
5
(ii) the servicing licence has not been cancelled.
6
(2)
For the purposes of the new law, the old mark is taken to be a servicing
7
licensee's mark approved by the Secretary under paragraph 18NB(4)(a)
8
of the new law for use by or on behalf of the licensee in verifying
9
measuring instruments during the period:
10
(a) beginning at the start of the transition day; and
11
(b) ending on the earliest of the following:
12
(i) the end of the day that is 12 months after the transition
13
day;
14
(ii) if the licence that the licensee is taken to hold under
15
item 12 of this Schedule is suspended or cancelled
16
under section 18QC of the new law during that period--
17
the start of the day on which the suspension or
18
cancellation takes effect;
19
(iii) the day on which a servicing licensee's mark is
20
approved for use by the licensee under subitem 12(7).
21
22
Application and transitional provisions Schedule 2
Permits Part 4
National Measurement Amendment Bill 2008 No. , 2008 153
1
Part 4
--
Permits
2
10 Permits in relation to compulsory product information
3
(1)
This item applies if:
4
(a) a permit (the old permit) is issued to a person under an earlier
5
corresponding law authorising the sale (within the meaning
6
of the earlier corresponding law) of an article packed in
7
advance ready for sale; and
8
(b) the sale of the article would, but for the old permit, be an
9
offence against a compulsory product information provision;
10
and
11
(c) immediately before the transition day, the old permit is still
12
in force.
13
(2)
The old permit has effect under the new law as if it had been issued:
14
(a) in relation to the sale of the article (as defined for the
15
purposes of the new law)--under paragraph 18JX(2)(a) of
16
the new law; or
17
(b) in relation to the possession of the article for sale, or the
18
offering or exposure of the article for sale--under paragraph
19
18JX(3)(a) of the new law;
20
for the period:
21
(c) beginning at the start of the transition day; and
22
(d) ending on the earlier of:
23
(i) the end of the day on which the old permit would have
24
ceased to have had effect if the earlier corresponding
25
law had not been repealed; and
26
(ii) the end of the day that is 6 months after the transition
27
day.
28
(3)
For the purposes of this item, each of the following is a compulsory
29
product information provision:
30
(a) paragraph 28(3)(b) of the Trade Measurement Act 1989 of
31
New South Wales;
32
(b) paragraph 28(3)(b) of the Trade Measurement Act 1995 of
33
Victoria;
34
(c) paragraph 28(3)(b) of the Trade Measurement Act 1990 of
35
Queensland;
36
Schedule 2 Application and transitional provisions
Part 4 Permits
154 National Measurement Amendment Bill 2008 No. , 2008
(d) paragraph 39(3)(b) of the Trade Measurement Act 2006 of
1
Western Australia;
2
(e) paragraph 28(3)(b) of the Trade Measurement Act 1993 of
3
South Australia;
4
(f) paragraph 28(3)(b) of the Trade Measurement Act 1999 of
5
Tasmania;
6
(g) paragraph 28(3)(b) of the Trade Measurement Act 1991 of
7
the Australian Capital Territory;
8
(h) paragraph 28(3)(b) of the Trade Measurement Act of the
9
Northern Territory.
10
11 Permits in relation to prohibited expressions
11
(1)
This item applies if:
12
(a) a permit (the old permit) is issued to a person under an earlier
13
corresponding law authorising the sale (within the meaning
14
of the earlier corresponding law) of an article packed in
15
advance ready for sale; and
16
(b) the sale of the article would, but for the old permit, be an
17
offence against a prohibited expression provision; and
18
(c) immediately before the transition day, the old permit is still
19
in force.
20
(2)
The old permit has effect under the new law as if it had been issued:
21
(a) in relation to the sale of the article (as defined for the
22
purposes of the new law)--under paragraph 18JX(2)(b) of
23
the new law; or
24
(b) in relation to the possession of the article for sale, or the
25
offering or exposure of the article for sale--under paragraph
26
18JX(3)(b) of the new law;
27
for the period:
28
(c) beginning at the start of the transition day; and
29
(d) ending on the earlier of:
30
(i) the end of the day on which the old permit would have
31
ceased to have had effect if the earlier corresponding
32
law had not been repealed; and
33
(ii) the end of the day that is 6 months after the transition
34
day.
35
Application and transitional provisions Schedule 2
Permits Part 4
National Measurement Amendment Bill 2008 No. , 2008 155
(3)
For the purposes of this item, each of the following is a prohibited
1
expression provision:
2
(a) section 30 of the Trade Measurement Act 1989 of New South
3
Wales;
4
(b) section 30 of the Trade Measurement Act 1995 of Victoria;
5
(c) section 30 of the Trade Measurement Act 1990 of
6
Queensland;
7
(d) section 41 of the Trade Measurement Act 2006 of Western
8
Australia;
9
(e) section 30 of the Trade Measurement Act 1993 of South
10
Australia;
11
(f) section 30 of the Trade Measurement Act 1999 of Tasmania;
12
(g) section 30 of the Trade Measurement Act 1991 of the
13
Australian Capital Territory;
14
(h) section 30 of the Trade Measurement Act of the Northern
15
Territory.
16
17
Schedule 2 Application and transitional provisions
Part 5 Servicing licences and public weighbridge licences
156 National Measurement Amendment Bill 2008 No. , 2008
1
Part 5
--
Servicing licences and public weighbridge
2
licences
3
12 Servicing licences and public weighbridge licences
4
continue in force
5
(1)
If a person holds a servicing licence under an earlier corresponding law
6
(an old licence) immediately before the transition day, the old licence
7
has effect on and after the transition day as if it were a servicing licence
8
granted under section 18NB of the new law (a new licence).
9
(2)
If a person holds a public weighbridge licence under an earlier
10
corresponding law (also an old licence) immediately before the
11
transition day, the old licence has effect on and after the transition day
12
as if it were a public weighbridge licence granted under section 18PB of
13
the new law (also a new licence).
14
(3)
Any condition to which an old licence was subject under an earlier
15
corresponding law immediately before the transition day continues in
16
force as a condition of the new licence imposed:
17
(a) in the case of a servicing licence--under section 18NG of the
18
new law; or
19
(b) in the case of a public weighbridge licence--under
20
section 18PG of the new law.
21
(4)
However, if a condition mentioned in subitem (3) is inconsistent with:
22
(a) in the case of a servicing licence--a condition on all
23
servicing licences under section 18NH of the new law; or
24
(b) in the case of a public weighbridge licence--a condition on
25
all public weighbridge licences under section 18PH of the
26
new law; or
27
(c) any other condition prescribed for the purposes of this
28
paragraph;
29
the condition mentioned in paragraph (a), (b) or (c) prevails and, to the
30
extent of the inconsistency, the condition mentioned in subitem (3) does
31
not have effect.
32
(5)
Nothing in this item prevents the imposition, variation or revocation of
33
a condition on a new licence under the new law on or after the transition
34
day.
35
Application and transitional provisions Schedule 2
Servicing licences and public weighbridge licences Part 5
National Measurement Amendment Bill 2008 No. , 2008 157
(6)
The new licence continues in effect until:
1
(a) if the old licence was subject to a periodic licence fee under a
2
periodic licence fee provision--the day on which the next fee
3
was payable; or
4
(b) the new licence is cancelled under the new law.
5
(7)
The Secretary must:
6
(a) approve a mark for use by the servicing licensee and
7
employee of the servicing licensee when verifying measuring
8
instruments; and
9
(b) give the servicing licensee written notice including the details
10
of the mark.
11
(8)
If, immediately before the transition day, the old licence is suspended
12
under an earlier corresponding law, on the transition day the new
13
licence is taken to be suspended under the new law for the period
14
ending on the day on which the suspension of the old licence would
15
have ended under the earlier corresponding law.
16
(9)
For the purposes of this item, each of the following is a periodic licence
17
fee provision:
18
(a) section 52 of the Trade Measurement Act 1989 of New South
19
Wales;
20
(b) section 52 of the Trade Measurement Act 1995 of Victoria;
21
(c) section 52 of the Trade Measurement Act 1990 of
22
Queensland;
23
(d) section 64 of the Trade Measurement Act 2006 of Western
24
Australia;
25
(e) section 52 of the Trade Measurement Act 1993 of South
26
Australia;
27
(f) section 52 of the Trade Measurement Act 1999 of Tasmania;
28
(g) section 52 of the Trade Measurement Act 1991 of the
29
Australian Capital Territory;
30
(h) section 52 of the Trade Measurement Act of the Northern
31
Territory.
32
13 Transitional provision
--
public weighbridge no longer
33
suitable for use
34
If:
35
Schedule 2 Application and transitional provisions
Part 5 Servicing licences and public weighbridge licences
158 National Measurement Amendment Bill 2008 No. , 2008
(a) a notice has been served, under an earlier corresponding law,
1
on a person who held a public weighbridge licence under that
2
law:
3
(i) stating that an administering authority considers a
4
public weighbridge is no longer suitable for use as a
5
public weighbridge; and
6
(ii) stating that the person may make written representations
7
to the administering authority within a period stating
8
why the person considers the public weighbridge
9
licence for the public weighbridge should not be
10
cancelled; and
11
(b) immediately before the transition day the period mentioned
12
in subparagraph (a)(ii) has not expired;
13
then:
14
(c) the notice is taken to be a notice given under 18PP of the new
15
law in relation to the public weighbridge; and
16
(d) the person may make written submissions to the Secretary
17
within the period of 14 days beginning at the start of the
18
transition day stating why the person considers the public
19
weighbridge licence that the person is taken to hold under
20
item 12 of this Schedule for the public weighbridge should
21
not be cancelled; and
22
(e) after considering any submissions made to the Secretary
23
within that period, the Secretary may make a decision in
24
accordance with section 18PP of the new law.
25
14 Orders preventing employment of certain persons
26
(1)
If, immediately before the transition day, an order under an employment
27
prevention order provision is in force (the old order), then on and after
28
the transition day, the old order is taken to be an order under:
29
(a) if the old order is a direction as to any of the following--
30
section 18NN of the new law:
31
(i) not to employ a specified person to certify any
32
measuring instrument;
33
(ii) not to employ a specified person to certify a specified
34
class or classes of measuring instruments;
35
(iii) to employ a specified person to do either of the things
36
mentioned in subparagraph (i) or (ii) only in compliance
37
with specified conditions; or
38
Application and transitional provisions Schedule 2
Servicing licences and public weighbridge licences Part 5
National Measurement Amendment Bill 2008 No. , 2008 159
(b) if the old order is a direction as to any of the following--
1
section 18PQ of the new law:
2
(i) not to employ a specified person to perform duties
3
relating to the operation of any public weighbridge;
4
(ii) not to employ a specified person to perform duties
5
relating to the operation of a specified class or classes of
6
public weighbridges;
7
(iii) to employ a specified person to do either of the things
8
mentioned in subparagraph (i) or (ii) only in compliance
9
with specified conditions.
10
(2)
If the old order is one that, under paragraph (1)(a), is taken to have been
11
made under section 18NN and a copy of the old order has not been
12
served on a person to whom such an order is, under subsection
13
18NN(3), required to be served, a copy of the old order must be served
14
on that person. However, nothing in this subitem or in subsection
15
18NN(3) affects the validity of the old order that continues to exist by
16
force of subitem (1).
17
(3)
If the old order is one that, under paragraph (1)(b), is taken to have been
18
made under section 18PQ and a copy of the old order has not been
19
served on a person to whom such an order is, under subsection 18PQ(3),
20
required to be served, a copy of the old order must be served on that
21
person. However, nothing in this subitem or in subsection 18PQ(3)
22
affects the validity of the old order that continues to exist by force of
23
subitem (1).
24
(4)
For the purposes of this item, each of the following is an employment
25
prevention order provision:
26
(a) section 55 of the Trade Measurement Act 1989 of New South
27
Wales;
28
(b) section 55 of the Trade Measurement Act 1995 of Victoria;
29
(c) section 55 of the Trade Measurement Act 1990 of
30
Queensland;
31
(d) section 72 of the Trade Measurement Act 2006 of Western
32
Australia;
33
(e) section 55 of the Trade Measurement Act 1993 of South
34
Australia;
35
(f) section 55 of the Trade Measurement Act 1999 of Tasmania;
36
(g) section 55 of the Trade Measurement Act 1991 of the
37
Australian Capital Territory;
38
Schedule 2 Application and transitional provisions
Part 5 Servicing licences and public weighbridge licences
160 National Measurement Amendment Bill 2008 No. , 2008
(h) section 55 of the Trade Measurement Act of the Northern
1
Territory.
2
15 Proceedings under new law if disciplinary action not yet
3
commenced
4
If:
5
(a) the Secretary reasonably suspects that there existed, before
6
the transition day, grounds for disciplinary action under an
7
earlier corresponding law in relation to a servicing licence or
8
public weighbridge licence held by a person under that law
9
immediately before that day (an old licence); and
10
(b) no written notice has been served in accordance with the
11
earlier corresponding law in relation to the grounds before
12
the transition day;
13
then:
14
(c) on and after the transition day, the grounds for disciplinary
15
action in relation to the old licence are taken to be grounds
16
for disciplinary action in relation to the licence that the
17
person is taken to hold under item 12 of this Schedule (the
18
new licence); and
19
(d) on or after the transition day, the Secretary may:
20
(i) serve a notice on the person in relation to those grounds
21
under section 18QB of the new law; and
22
(ii) take disciplinary action in relation to the new licence in
23
relation to those grounds in accordance with Part XII of
24
the new law.
25
16 Proceedings under earlier corresponding law if
26
disciplinary action commenced
27
If:
28
(a) disciplinary action under an earlier corresponding law has
29
begun in relation to a servicing licence or public weighbridge
30
licence held by a person under that law; and
31
(b) immediately before the transition day, the disciplinary action
32
had not ended or been discontinued;
33
then nothing in this Act affects the continuation or conclusion of the
34
disciplinary action on or after the transition day in accordance with the
35
earlier corresponding law, but:
36
(c) to the extent that the disciplinary action to be taken involves:
37
Application and transitional provisions Schedule 2
Servicing licences and public weighbridge licences Part 5
National Measurement Amendment Bill 2008 No. , 2008 161
(i) the imposition of a condition on a licence; or
1
(ii) the suspension of a licence; or
2
(iii) the cancellation of a licence;
3
the disciplinary action is taken in relation to the licence that
4
the person is taken to hold under item 12 of this Schedule;
5
and
6
(d) to the extent that the disciplinary action to be taken involves
7
the disqualification, permanently or for a specified period, of
8
the person from holding a licence, the disqualification is in
9
relation to a servicing licence or public weighbridge licence
10
under the new law.
11
17 Disqualification continues in force
12
(1)
If, immediately before the transition day, a person was, under an earlier
13
corresponding law, permanently disqualified from holding a licence
14
under that law, the person is taken to be permanently disqualified under
15
paragraph 18QC(1)(e) of the new law from holding a servicing licence
16
or public weighbridge licence under that law.
17
(2)
If, immediately before the transition day, a person was, under an earlier
18
corresponding law, disqualified for a specified period from holding a
19
licence under that law, the person is taken to be disqualified under
20
paragraph 18QC(1)(e) of the new law from holding a servicing licence
21
or public weighbridge licence under that law for the period:
22
(a) beginning at the start of the transition day; and
23
(b) ending at the time at which the disqualification would have
24
ended under the earlier corresponding law.
25
26
Schedule 2 Application and transitional provisions
Part 6 Utility meters
162 National Measurement Amendment Bill 2008 No. , 2008
1
Part 6
--
Utility meters
2
18 Continued recognition of existing verification marks
--
3
utility meters
4
If, immediately before the commencing day, a utility meter is verified
5
under the National Measurement Act 1960, as in force at that time, then
6
on and from the commencing day the utility meter is taken to be
7
verified under the new law.
8
19 Continued
use of existing verifying authority's mark--
9
utility meters
10
(1)
This item applies if:
11
(a) before the commencing day, a mark (the old mark) has been
12
allocated to a person under Part VA of the National
13
Measurement Act 1960, as in force at the time at which the
14
old mark was allocated; and
15
(b) immediately before the commencing day:
16
(i) the allocation has not been revoked under the Act, as in
17
force at that time; and
18
(ii) the appointment of the person as a verifying authority
19
has not been revoked under the Act, as in force at that
20
time.
21
(2)
For the purposes of the new law, the old mark is taken to be a
22
verification mark in relation to utility meters during the period:
23
(a) beginning at the start of the commencing day; and
24
(b) ending on the earliest of the following:
25
(i) the end of the day that is 12 months after the
26
commencing day;
27
(ii) if the person is, at the start of the commencing day,
28
taken to be a verifier in relation to utility meters under
29
item 20 but the person's appointment is subsequently
30
revoked under section 18RG of the new law--the start
31
of the day on which the appointment is revoked;
32
(iii) the day on which a verification mark in relation to
33
utility meters is allocated to the verifier under subitem
34
20(4).
35
Application and transitional provisions Schedule 2
Utility meters Part 6
National Measurement Amendment Bill 2008 No. , 2008 163
20 Verifying authorities under old law become verifiers under
1
new law
2
(1)
If, immediately before the commencing day, a person was a verifying
3
authority under the National Measurement Act 1960, as in force at that
4
time (the old law), in relation to a particular class of utility meters, the
5
person is taken to be a verifier in relation to that class of utility meters
6
under the new law at the start of the commencing day as if the person
7
were appointed:
8
(a) in the case of a person appointed before the commencing day
9
under section 18ZC of the old law--under section 18RA of
10
the new law; or
11
(b) in the case of a person appointed before the commencing day
12
under section 18ZKA of the old law--under section 18RH of
13
the new law.
14
(2)
Any condition to which the appointment under the old law was subject
15
immediately before the commencing day continues in force as if it were
16
made:
17
(a) in the case of a person appointed before the commencing day
18
under section 18ZC of the old law--under section 18RA of
19
the new law; or
20
(b) in the case of a person appointed before the commencing day
21
under section 18ZKA of the old law--under section 18RH of
22
the new law.
23
(3)
Nothing in this item prevents the imposition, variation or revocation of
24
a condition under the new law on the appointment on or after the
25
commencing day.
26
(4)
The Secretary must allocate to the verifier:
27
(a) if the verifier will be personally undertaking verification of
28
utility meters--a mark for use by the verifier; and
29
(b) if the verifier will be employing persons to undertake the
30
verification of utility meters--a separate mark for use by
31
each employee.
32
(5)
If, immediately before the commencing day, the person's appointment
33
as a verifying authority is suspended under the old law, on the
34
commencing day the appointment as verifier is taken to be suspended
35
under the new law for the period ending on the day on which the
36
Schedule 2 Application and transitional provisions
Part 6 Utility meters
164 National Measurement Amendment Bill 2008 No. , 2008
suspension of appointment under the old law would have ended under
1
that law.
2
21 Proceedings under new law if disciplinary action not yet
3
commenced
4
If:
5
(a) the Secretary is of the opinion that, immediately before the
6
commencing day, there may have been grounds for taking
7
disciplinary action under section 18ZJ of the National
8
Measurement Act 1960, as in force immediately before the
9
commencing day (the old law), against a person appointed as
10
a verifying authority under section 18ZC of the old law
11
because the person was in breach of a condition of the
12
person's appointment; and
13
(b) no written notice has been served in accordance with
14
section 18ZG of the old law on the person;
15
then:
16
(c) on and after the commencing day, the grounds for
17
disciplinary action against the person under the old law are
18
taken to be grounds for disciplinary action against the person
19
under section 18RG of the new law; and
20
(d) on or after the commencing day, the Secretary may:
21
(i) serve a notice on the person in relation to those grounds
22
under section 18RD of the new law; and
23
(ii) take disciplinary action in relation to the person in
24
relation to those grounds in accordance with Division 2
25
of Part XIII of the new law.
26
22 Proceedings under earlier corresponding law if
27
disciplinary action commenced
28
If:
29
(a) disciplinary action has begun against a person appointed as a
30
verifying authority under section 18ZC of the National
31
Measurement Act 1960, as in force immediately before the
32
commencing day (the old law); and
33
(b) immediately before the commencing day, the disciplinary
34
action had not ended or been discontinued;
35
Application and transitional provisions Schedule 2
Utility meters Part 6
National Measurement Amendment Bill 2008 No. , 2008 165
then nothing in this Act affects the continuation or conclusion of the
1
disciplinary action on or after the commencing day in accordance with
2
the old law, but to the extent that the disciplinary action to be taken
3
involves:
4
(c) the imposition of a condition on an appointment of the
5
person; or
6
(d) the suspension of an appointment of the person; or
7
(e) the revocation of an appointment of the person;
8
the disciplinary action is taken in relation to the appointment of the
9
person as a verifier that is taken to have been made under item 20 of
10
this Schedule.
11
12
Schedule 2 Application and transitional provisions
Part 7 Miscellaneous
166 National Measurement Amendment Bill 2008 No. , 2008
1
Part 7
--
Miscellaneous
2
23 National instrument test procedures
3
The Uniform Test Procedures for the verification, certification and
4
in-service inspection of trade measuring instruments published by the
5
National Measurement Institute as in force immediately before the
6
transition day are taken, on and after the transition day, to be the
7
national instrument test procedures for the purposes of section 18GG
8
of the new law until national instrument test procedures are determined
9
under that section.
10
24 Definition of approved pattern
11
If:
12
(a) a measuring instrument was first verified or certified under
13
an earlier corresponding law before the transition day; and
14
(b) approval for a pattern for a measuring instrument was in
15
force under the National Measurement Act 1960, or
16
regulations made under that Act, when it was first verified or
17
certified; and
18
(c) the approval has expired or been cancelled (but not
19
withdrawn);
20
the pattern is taken to be an approved pattern in relation to the
21
measuring instrument for the purposes of that Act.
22

 


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