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Trade Measurement Legislation Repeal Bill 2009
Trade Measurement Legislation Repeal
Bill 2009
Explanatory Notes
Short Title
The short title of the Bill is the Trade Measurement Legislation Repeal Bill
2009.
Policy Objectives of the Bill
The objectives of the Bill are to repeal the Trade Measurement Act 1990
and the Trade Measurement Administration Act 1990 (the Trade
Measurement Acts) and to introduce transitional measures for a seamless
transfer of the State responsibility for administration and enforcement of
trade measurement to a national regime (so as to minimise any adverse
impacts on the community or the market in the process).
Reasons for the Bill
Current regulatory arrangements for trade measurement
Currently, in accordance with the Uniform Trade Measurement Legislation
and Administration Agreement of 1990, the States and Territories are
jointly responsible for the administration of trade measurement. Each
jurisdiction has implemented substantially uniform trade measurement
legislation (UTML). The system provides a national legal framework to
ensure that weights and measures used in trade are accurate.
For its part of the agreement, Queensland administers the following
legislation:
· Trade Measurement Act 1990
· Trade Measurement (Measuring Instruments) Regulation 1991
· Trade Measurement (Miscellaneous) Regulation 1991
· Trade Measurement (Prepacked Articles) Regulation 1991
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Trade Measurement Legislation Repeal Bill 2009
· Trade Measurement (Weighbridges) Regulation 1991
· Trade Measurement Administration Act 1990
· Trade Measurement Administration Regulation 1991.
Review process
The 1995 Kean Inquiry into Australia's Standards and Conformance
Infrastructure noted a decline in the trade measurement system and the
continuing lack of uniform implementation of trade measurement
legislation and administrative requirements. The inquiry also noted that not
all States and Territories implemented the UTML and some amendments to
the UTML have resulted in less than uniform implementation.
In 2004, the Ministerial Council on Consumer Affairs (MCCA) agreed to
commission a national review of trade measurement. This review
identified the current trade measurement system as creating:
· additional costs for national industries imposed by having to comply
with different requirements in each jurisdiction;
· inefficiencies when operating across state borders;
· lack of equity in cost recovery; and
· an inability to adopt new technologies and processes within
timeframes required by industry.
In February 2006, the Council of Australian Governments (COAG)
identified trade measurement as a regulatory 'hot spot' requiring reform and
asked MCCA to develop a recommendation and timeline for the
introduction of a national trade measurement system. A major national
review confirmed significant problems with the current administrative
arrangements. MCCA recommended to the COAG that Commonwealth
administration would be the best means of resolving them.
Central administration is expected to produce benefits for businesses,
consumers and government. A single policy platform would allow
Government to provide a framework for consistent and timely adoption of
new technologies and processes by industry. Requiring compliance with a
single set of requirements nationwide would be likely to result in cost
reductions and efficiency gains. Where there are charges for government
trade measurement services they will be uniform, removing current
inequities for businesses in different States and Territories.
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Trade Measurement Legislation Repeal Bill 2009
On 13 April 2007, COAG agreed to establish a national system of trade
measurement funded and administered by the Commonwealth, meaning
the Commonwealth will assume full responsibility for both administration
and enforcement. The agreement provides for Commonwealth
enforcement of trade measurement to begin on 1 July 2010.
On 8 December 2008, the Federal Parliament passed the National
Measurement Amendment Act 2008, which amends the Commonwealth
National Measurement Act 1960 (NMA). This provides the basis for the
Commonwealth legislative regime and includes a commencement date of 1
July 2009 and a `transition day' of 1 July 2010. The transition day will be
the time when the Commonwealth begins enforcing the trade measurement
law across Australia.
The National Measurement Institute (NMI), in the Commonwealth
Department of Innovation, Industry, Science and Research, will have
responsibility for the ongoing operation of the national trade measurement
regime.
The national agreement involves the Commonwealth using existing State
and Territory staff and infrastructure to continue performing trade
measurement duties. State and Territory staff will be employed by the
Commonwealth to operate under Commonwealth legislation. The
agreement includes maintaining continuity of the level of service and
service standards. Commonwealth, State and Territory officials are
working together on the transitional arrangements.
The COAG agreement includes a requirement that each State and Territory
repeal its trade measurement law to take effect 1 July 2010. The Bill
progresses Queensland's commitment to the agreement. It also introduces a
small number of savings provisions necessary for the transition to a
national regime.
Achievement of the objectives
The Bill provides for the repeal of the Trade Measurement Acts on a date
fixed by proclamation. It is anticipated that a proclamation will be made to
repeal the Trade Measurement Acts on 1 July 2010, which is consistent
with the national agreement for the Commonwealth to assume full
responsibility for trade measurement and the time when Commonwealth
enforcement begins across Australia.
Transitional provisions provided by the Bill are reasonable, appropriate and
necessary for finalising any outstanding administrative or enforcement
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Trade Measurement Legislation Repeal Bill 2009
matters at the time of changeover. For example, proceedings against
offences, disciplinary proceedings against a licensee and reviews of
decisions by the licensing authority may not be concluded on the date of
transition. The Bill also enables information associated with the
administration of trade measurement to be supplied to the Commonwealth
upon assent. This allows the Commonwealth time to establish information
systems, infrastructure and work schedules before commencing
enforcement. These provisions will facilitate a seamless transition to a
national regime with minimal, if any, adverse impacts on the community
and the market.
Alternative ways of achieving the policy objectives
The MCCA considered various options to develop a national trade
measurement system.
In order to develop and assess options for an effective national system, the
MCCA Standing Committee of Consumer Affairs Officials (SCOCA)
established a Working Party comprising representatives from all State and
Territory trade measurement authorities.
In November 2003, the Working Party presented a report, which identified
the following four major options. The report contained an initial
assessment of how each option may impact on industry and consumers, as
well as the policy implications for all jurisdictions.
(i) National Trade Measurement Legislation with Consistent State and
Territory Administration Acts - Under this option the present uniform
State and Territory Trade Measurement Acts would be replaced with
national legislation, however the States and Territories would continue
to have their own supporting administrative Acts and would enforce
and administer the trade measurement laws within their respective
jurisdiction.
(ii) Full National Legislation with State and Territory Administration -
Under this option all of the present uniform State and Territory Trade
Measurement Acts and their supporting administrative Acts would be
replaced with national legislation, however States and Territories
would continue to have responsibility for enforcement and
administration of those national trade measurement laws within their
respective jurisdiction.
(iii) National Legislation with Contracted Administration - Under this
option all of the present uniform State and Territory Trade
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Trade Measurement Legislation Repeal Bill 2009
Measurement Acts would be replaced with national legislation, and
although the Commonwealth would then have responsibility for
enforcement and administration of those national trade measurement
laws, the States and Territories would be contracted to perform those
functions within their respective jurisdiction.
(iv) National Legislation and Administration - Under this option all of the
present uniform State and Territory Trade Measurement Acts would
be replaced with national legislation and responsibility for
enforcement and administration of trade measurement laws would
move fully to the Commonwealth.
Of the four options, the first three would rationalise and unify trade
measurement laws and at the same time preserve, to varying extents, the
enforcement and administrative role of each State and Territory. The
Queensland Government endorsed the fourth option which was the option
adopted by MCCA.
MCCA recommended that a trade measurement system administered by
the Commonwealth was the best option to remove existing structural
problems, to rationalise the different regulatory regimes of the States and
Territories, and to address the challenges presented by new measurement
technologies. MCCA recommended to COAG that Commonwealth
administration would best overcome the problems in the system and
produce benefits sought by businesses, consumers and government.
The main benefit of national legislation and administration is that trading
practices will comply with only one set of requirements across Australia
and this will result in cost reductions and efficiency gains. Also,
cost-recovery for government services will be uniform and therefore,
option (iv) would remove current inequities for businesses in different
States and Territories. Government will be able to provide a framework for
consistent and timely adoption of new technologies and processes by
industry, and will have a single policy platform.
COAG subsequently accepted MCCA's recommendation and agreed on the
transfer of full responsibility for trade measurement to the Commonwealth.
State and Territory Trade Measurement law will become redundant once
enforcement of the new Commonwealth law starts on 1 July 2010.
Therefore, each State and Territory will need to separately progress an
amendment bill, similar to this Bill, to repeal its trade measurement
legislation on that date.
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Trade Measurement Legislation Repeal Bill 2009
A referral of powers is not necessary as the Commonwealth already has the
constitutional power under section 51 of the Constitution to make law in
respect of `weights and measures'.
Administrative costs
The transfer of the administration of trade measurement will realise a
substantial net financial saving for the Queensland Government.
COAG agreed on the Commonwealth providing $29 million over four
years to establish the national system of trade measurement. This is
intended to cover the initial three year transition period and the first year of
Commonwealth operation of the system. The Commonwealth also agreed
to fully fund ongoing measurement operations estimated at $24 million per
annum. No additional budgetary expenditure is anticipated by the
Queensland Government.
The States and Territories will transfer existing trade measurement testing
and scientific equipment to the Commonwealth. The total depreciated book
value of Queensland measurement testing and scientific equipment is
estimated to be approximately $0.087 million as at 30 June 2009. The
valuation reflects the fact that much of the equipment has been in use for
some years.
The Commonwealth is offering to employ the same State and Territory
staff to perform the same role under Commonwealth legislation in similar
locations around Australia.
COAG has indicated that any transfer of staff and resources would involve
no net cost to the Commonwealth or to the States and Territories.
Twenty-eight staff are employed in the Queensland Trade Measurement
Branch. Inspectors are based in Brisbane and seven regional locations in
Queensland. The Commonwealth has confirmed it will offer all existing
State and Territory trade measurement personnel employment performing
similar duties at similar regional locations. Most of the Queensland
personnel have indicated they may accept the offer. The actual number will
not be known until closer to the transition on 1 July 2010. For those who
accept, salary scales will be very similar and the offer will be on the basis
that there will be no disadvantage to them when commencing duties with
the Commonwealth on 1 July 2010.
The Department of Employment, Economic Development and Innovation,
in consultation with the Public Service Commission, will endeavour to
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Trade Measurement Legislation Repeal Bill 2009
satisfactorily redeploy any staff who do not accept the offer. The
Queensland Public Sector Union is being consulted on an ongoing basis
regarding the interests of staff and proposed employment arrangements.
Fundamental Legislative Principles
To facilitate the seamless transition of trade measurement administration
and enforcement to the Commonwealth it will be necessary to provide the
NMI with information relating to trade measurement licensees and
regulated traders. This will include personal information.
Clause 14 of the Bill provides for the provision of information to the NMI,
after the repeal of the Trade Measurement Acts, about administrative and
enforcement matters yet to be finalised at the time of the repeal. Such
matters include disciplinary proceedings, infringement notice offences,
proceedings for offences against either of the repealed Acts, reviews of
decisions made under the Trade Measurement Act 1990, unpaid trade
measurement fees and instruments or other things seized by trade
measurement inspectors in the performance of their duties under the Trade
Measurement Act 1990.
Clause 16 of the Bill provides for the transfer of information prior to the
repeal of the Trade Measurement Acts, including information from the
register containing the particulars of current licences, as well as
information obtained by the chief inspector as the administering authority
or licensing authority.
Enabling the supply of information held by Queensland trade measurement
authorities, including about licensees and regulated traders, to the
Commonwealth may impact on requirements under the Legislative
Standards Act 1992 that legislation shall have sufficient regard to the rights
and liberties of individuals, including privacy. However, any potential
breach of such a fundamental legislation principle is considered reasonable
and necessary. The only information provided will be that information
obtained in the lawful administration of the repealed Trade Measurement
Acts. As administration of trade measurement will be transferred to the
Commonwealth, this information will be necessary to ensure the ongoing
efficient administration and enforcement of trade measurement. The
provision of the register relating to licences will have beneficial impacts for
current Queensland licensees as it will enable the recognition of their
licenses by the Commonwealth, without the need for them to apply again
under the Commonwealth scheme.
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Trade Measurement Legislation Repeal Bill 2009
Consultation
An extensive national community and government consultation process
informed a major review of the administration of trade measurement law. A
public discussion paper entitled Review of the National Trade Measurement
System was released in June 2006. Consultation included different sectors
of industry, consumers, all Australian Governments and the New Zealand
Government.
Queensland officials have been extensively involved in the review process,
including providing input to the public discussion paper and the
preparation of a Regulatory Impact Statement, which was released
nationally for public consultation in March 2007.
The review process strongly showed all stakeholder groups experience
fundamental problems with the current administrative arrangements for
trade measurement and support Queensland proceeding with its
components of the proposed COAG reforms.
Since the COAG agreement on the reforms, ongoing consultation is
occurring between the States and Territories and the Commonwealth on
nationally agreed processes for implementing the transition to the new
regime. A national transition forum has been established for this purpose
comprising officials from all jurisdictions. Queensland is also represented
on nine working groups providing consultation on specific areas of trade
measurement administration. Progress is being monitored by the COAG
Business Regulation and Competition Working Group. Queensland
officials are members of the working group.
Uniform and complementary nature of the bill
As noted above, in accordance with the Uniform Trade Measurement
Legislation and Administration Agreement of 1990, each jurisdiction has
implemented substantially uniform trade measurement legislation.
Similarly, under the COAG agreement, each State and Territory will be
introducing similar transition and repeal bills to transfer State and Territory
responsibility for administration and enforcement of trade measurement to
a national regime.
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Trade Measurement Legislation Repeal Bill 2009
Notes on Provisions
Part 1 Preliminary
Clause 1 sets out the short title of the Act.
Clause 2 provides, that other than section 16, the Act will commence on
proclamation. The notes for clause 16 explain why this clause will
commence on assent.
Clause 3 provides the definitions of various terms used for interpreting the
Act.
Clause 4 provides that words used under this Act and under the repealed
Trade Measurement Act 1990 and Trade Measurement Administration Act
1990 (the Trade Measurement Acts) have the same meanings.
Clause 5 provides that the transitional provisions in this Act do not limit,
nor are they limited by section 20 of the Acts Interpretation Act 1954 which
provides for the saving of the operation of repealed Acts.
Part 2 Repeals
Clause 6 repeals the Trade Measurement Acts.
Part 3 Transitional Provisions
Clause 7 provides for the finalisation of certain administrative and
enforcement matters, specified under the definition of a `continuing matter'
in clause 3, during the 12 month period following the repeal of the Trade
Measurement Acts. It also provides for trade measurement officials to be
employed during that time for these purposes.
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Trade Measurement Legislation Repeal Bill 2009
Clause 8 relates to finalisation of proceedings. It clarifies that proceedings
for an offence against the Trade Measurement Acts may be started, or
concluded if the offence was alleged to have been committed prior to the
repeal of those Acts.
Clause 9 relates to the finalisation of infringement notices. It clarifies that a
fine for an offence may be served for a trade measurement offence
actionable under the State Penalties Enforcement Act 1999, if the offence
was committed and the fine was yet to be served prior to the repeal of the
Trade Measurement Acts.
Clause 10 relates to finalisation of disciplinary actions against a licensee. It
provides that action may be taken if a notice has been served before the
repeal of the Trade Measurement Acts and, at the time of repeal,
disciplinary action was yet to be taken.
Clause 11 relates to finalisation of reviews. It enables the Queensland Civil
and Administrative Tribunal to commence, or finalise a review of a
decision of the trade measurement licensing authority in the situation
where a person could have started a review, but had not applied to do so
prior to the repeal of the Trade Measurement Acts, or where a person had
commenced a review, but the Tribunal was yet to make its decision, prior to
the repeal of the Trade Measurement Acts.
This section will commence after the commencement of the relevant
provisions of the Queensland Civil and Administrative Tribunal
(Jurisdiction Provisions) Amendment Act 2009 which confers jurisdiction
on the Queensland Civil and Administrative Tribunal to hear and determine
reviews of decisions of the licensing authority listed in section 59 Trade
Measurement Act 1990.
Clause 12 enables trade measurement inspectors to make a decision to
retain, return or dispose of seized things, such as measuring instruments,
related records and articles after the repeal of the Trade Measurement Acts.
This is subject to allowing the NMI to inspect the thing if required under
the new national law.
Clause 13 provides for the recovery of unpaid trade measurement fees after
the repeal of the Trade Measurement Acts.
Clause 14 provides for the disclosure of information to the NMI by the
chief inspector about various administrative and enforcement matters yet to
be finalised upon the repeal of the Trade Measurement Acts. This is to
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Trade Measurement Legislation Repeal Bill 2009
enable the seamless transition of trade measurement administration and
enforcement to the Commonwealth.
Clause 15 provides that, where applicable, a reference in another Act or a
document to the repealed Trade Measurement Acts is a reference to the
Commonwealth law.
Part 4 Miscellaneous
Clause 16 provides for the transfer of information associated with
administration of trade measurement to the NMI. This section will
commence upon assent. The transfer of information to the Commonwealth
will allow for re-establishment of information systems, work schedules and
employment arrangements. With Commonwealth enforcement
commencing on 1 July 2010, commencement of this section upon assent
will avoid gaps in the transition and minimise the impacts on stakeholders
and the market.
Clause 17 sets the expiry of this Act as 1 July 2011.
Part 5 Amendment of Acts and
subordinate legislation
Clause 18 states that the schedule makes consequential amendments to the
Acts and subordinate legislation listed in the schedule.
Schedule
The Schedule makes minor consequential amendments to the following
Acts and subordinate legislation:
· Agricultural Standards Act 1994
· Agricultural Standards Regulation 1997
· Fair Trading Act 1989
· Fisheries Act 1994
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Trade Measurement Legislation Repeal Bill 2009
· Fisheries (Coral Reef Fin Fish) Management Plan 2003
· Petroleum and Gas (Production and Safety) Act 2004
· State Penalties Enforcement Act 1999
· State Penalties Enforcement Regulation 2000
· Statutory Instruments Act 1992
· Statutory Instruments Regulation 2002
· Transport Operations (Road Use Management) Act 1995
· Transport Operations (Road use management, Mass, Dimensions
and Loading) Regulation 2005
Where subordinate legislation is amended, the principal Act is also
amended to clarify that the amendment by this Act of the subordinate
legislation does not affect the power of the Governor in Council to further
amend or repeal the relevant subordinate legislation.
In the case of the Fisheries (Coral Reef Fin Fish) Management Plan 2003,
a new provision is inserted in the Fisheries Act 1994 to clarify that
amendment by this Act to the Fisheries (Coral Reef Fin Fish) Management
Plan 2003 does not affect the power of the chief executive to further amend
or repeal the management plan or the power of the Governor in Council to
approve the management plan.
© State of Queensland 2009
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