Bills Digest No. 74 2003-04
National Measurement Amendment Bill 2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
National Measurement Amendment Bill
2003
Date Introduced:
3 December 2003
House: House of Representatives
Portfolio: Industry, Tourism and
Resources
Commencement:
A number of the provisions
in the Bill commence on Royal Assent. Parts 1, 2 and 3 of
Schedule 1 commence on a day to be fixed by Proclamation, or if
this is not within six months of Royal Assent, the first day after
that period. Items 1 and 4 of Schedule 2 commence immediately after
the commencement of Parts 1, 2 and 3 of Schedule 1.
The purpose of the Bill is to establish a
National Measurement Institute by the amalgamation of three
government agencies. These existing agencies are the National
Measurement Laboratory (within CSIRO), the National Standards
Commission and the Australian Government Analytical Laboratories.
The amalgamated National Measurement Institute will be located
within the Department of Industry, Tourism and Resources.
Background
Section 51 (xv) of the Constitution provides
the Parliament with the power to make laws with respect to weights
and measures. This constitutional head of power is uncontroversial
and one commentator on constitutional law has noted:
So the power is not restricted to the bare fixing
of standards of weights and measures, but could extend to the
creation of agencies in these areas e.g. to supervise an introduced
metric system.(1)
The Commonwealth's National Measurement
Act 1960 (the Act) establishes an Australian national system
of units and standards of measurement. The Act also allows
concurrent operation of certain State laws, including those that
relate to regulating improper practices in connection with weights
and measures e.g. to protect consumers. At present, the scientific
regulation of standards is committed to the CSIRO.
The science of weights and measures is
referred to as metrology.
The operation and the structure of the
Australian Government Analytical Laboratories (AGAL) was the
subject of a major review as far back as 2000 by the Department of
Finance and Administration (DoFA) and the Department of Industry,
Science and Resources (DISR). AGAL is a business unit within DISR.
The key recommendation of the review was that AGAL should be linked
to a national measurement institute.
The policy announcement for the creation of a
National Measurement Institute, involving AGAL, the National
Measurement Laboratory (within CSIRO) and the National Standards
Commission was made on 13 May 2003 in Budget 2003-04. The Fact
Sheet issued by the Department of Industry, Tourism and Resources
on the Budget initiative for a National Measurement Institute
includes the following comments about the proposal:
The demand for expertise in more than one type of
measurement is growing in industry and in research. Some
industries, such as the power industry, rely on three kinds of
measurement services physical, chemical and legal. New technologies
such as biotechnology and nanotechnology require physical, chemical
and biological measurements. Innovation in science and technology
will also benefit from a better integrated measurement system.
Measurement is supported by the broader standards
and conformance infrastructure. Conformance is the process of
assessing whether or not the product or service meets a required
standard. An efficient measurement, standards and conformance
infrastructure, able to support Australian industry, is essential
for international competitiveness and investment
attraction.(2)
The Government's proposal to locate the single
National Measurement Institute within the Department of Industry,
Tourism and Resources is stated as being aimed at drawing upon 'a
strong corporate support network' to enable better coordination
with government policy objectives.(3) It is the one-stop
shop approach and the proposal is said to be welcomed by
industry.(4)
The 2003-04 Budget initiative will see an
allocation of $3 million over the next two years from the resources
of the existing agencies and the Department of Industry, Tourism
and Resources to establish the National Measurement
Institute.(5)
David McLennan writing in The Canberra
Times of 27 November 2003, commented on the one-stop shop
approach and said:
Industry had been pushing for the agencies to be
brought together so there was better coordination between them. The
amalgamation would also create efficiencies and lift the agencies'
profiles making it easier to market their services in Australia and
overseas.(6)
McLennan also noted that the proposal would
not change these agencies' functions and services although new
positions of a Chief Executive and a Chief Metrologist would be
created (as noted above, metrology is the science of weights and
measures).
Australian Labor Party's comments
In a speech with the title 'Is smashing CSIRO
the answer to the research funding crisis?' Senator Kim Carr, the
Shadow Minister for Industry, Innovation, Science and Research
noted the suggestions for the amalgamation of some of the CSIRO's
strategic and applied research functions (such as rainforest
research and forestry laboratories) with university research
functions (i.e. basic research) and also observed:
Further, CSIRO has already been stripped of its
measurement laboratories in order that the government can create a
new National Measurement Institute within the Department of
Industry.(7)
Senator Carr's concern on the broader issue of
a perceived undermining of the funding mechanisms within research
agencies was also reiterated in his Second Reading speech on the
Higher Education Legislation Amendment Bill 2003 on 20 August
2003.(8)
Senator Carr also raised the issue of the
delay in working through the recommendations of the 2000 review of
AGAL in the Senate Estimates Committee on 12 February
2003.(9) Senator Carr's questions were aimed at
clarifying whether AGAL would be relocated to a national
measurement institute within CSIRO.
Senator Lyn Allison, the Australian Democrats
spokesperson for Health and Ageing, has raised questions in the
Senate about the continuation of the CSIRO's work on international
standards for ultrasound measurement and safety, especially in
relation to foetal risks from diagnostic ultrasound. The answers
given to Senator Allison include a confirmation from CSIRO that the
National Measurement Laboratory will continue to maintain a
standard for ultrasound power measurement after it becomes part of
the National Measurement Institute in July 2004.
The answers also included the confirmation
that further investigation into metrology and measurement
traceability in medicine has been deferred by CSIRO pending the
establishment of the new National Measurement
Institute.(10) (if
any)
Item 1 repeals Part III of
the National Measurement Act 1960 (the Act). Part III
currently provides the legislative basis for the National Standards
Commission. A new Part III is substituted and it provides for the
establishment of the National Measurement Institute within the
Department of Industry, Tourism and Resources and the position of
Chief Metrologist. The Chief Metrologist will be a public servant
engaged under the Public Service Act 1999.
In its annual report for 2002-03, the National
Standards Commission, which will be dissolved by this legislation,
noted that it sees the proposed amalgamation 'as an exciting
opportunity to increase the profile of metrology in Australia', as
well as providing a central contact point for measurement advice
and services. The Chair of the National Standards Commission, Dr
Doreen Clark AM, stated:
In the coming year, the Commission will play an
active role in the planning and implementation of the National
Measurement Institute, and will be keen to ensure that the
interests of its stakeholders and staff are fully recognised and
accommodated in the new organisation
arrangements.(11)
The technical effect of Item
1 is to dissolve a statutory authority and to transfer its
functions to an executive department.
Item 2 repeals Part IV (the
provisions in the Act dealing with the Executive Director and staff
of the National Standards Commission) and Part V (the provisions in
the Act authorising the National Standards Commission to receive
and deal with Commonwealth appropriation).
Items 3 to
18 are technical amendments which largely change
legislative references from the 'National Standards Commission' to
the 'Secretary' and to insert relevant references to the proposed
new position of 'Chief Metrologist'.
At present, the Act contains provisions at
Division 4 of Part VA that enable the National Standards Commission
to be a 'verifying authority' and to appoint other 'verifying
authorities', as well as to allocate 'verification marks' that are
used in connection with 'utility meters'. (Utility meters are
instruments used to measures gas, electricity or water). The
National Standards Commission Annual Report for 2002-03 states:
Utility meters are currently exempt from the
provisions of the National Measurement Act, pending the
establishment of agreed standards and procedures for metrological
control.(12)
It is understood that progress is being made
on agreed national standards for small water meters and the current
exemption (at least for water and irrigation meters) may be lifted
in the near future.
Items 19 to
38 are technical amendments to change legislative
references from the 'National Standards Commission' to the
'Secretary' in connection with the power to appoint and, where
necessary, take disciplinary action against a 'verifying
authority'. Decisions taken under this part of the Act are
reviewable by the Administrative Appeals Tribunal (see section 18ZK
of the Act). Item 39 adds a new section 18ZKA to
enable the Secretary to appoint a Commonwealth, State or Territory
officer to be a verifying authority (where the State or Territory
agrees to the appointment).
Division 5 of Part VA of the Act deals with
enforcement matters. Items 41 to
43 replace references to the 'National Standards
Commission' in sections 18ZM and 18ZN of the Act with references to
'Secretary'. Item 40 is a redraft of subsection
18ZM(1) and the Explanatory Memorandum to the Bill (at
page 10) specifically notes that, because it allows the appointment
of a person who has coercive enforcement powers, it has been recast
to comply with the test of the Senate Scrutiny of Bills Committee
Report 4/2000. Those who can be appointed are from an appropriate
class of persons who are subject to obligations dealing with
accountability in connection with the use of such powers.
Item 44 is a recast of
existing section 18ZW (compensation for damage to electronic
equipment) of the Act to comply with the Office of Parliamentary
Counsel Drafting Direction 2001, No. 15 (see page 10 of the
Explanatory Memorandum to the Bill).
Part VI of the Act deals with miscellaneous
provisions including the making of regulations relating to
examination and approval of patterns of measuring instruments
(section 19A). Item 50 provides a transitional
mechanism to protect the validity and continuity of regulations
made before the changes made by this amending Bill.
Section 19AAB of the Act allows regulations to
be made to specify the requirements and procedures necessary to be
satisfied before a measuring device is taken to be in accordance
with an approved pattern. Items 51 to
54 make consequential changes to the references in
the Act as well as provide a transitional mechanism to protect the
validity and continuity of the regulations (see Item
54).
Section 20 of the Act is the general
regulation-making power in the Act. Under the existing section, a
regulation is made that enables the National Standards Commission
to charge a fee for certain official activities. Items
57 and 58 recast the relevant provisions
in section 20 to remove references to the Commission and clarify
the circumstances under which fees may be prescribed by
regulation.
Section 9 of the Science and Industry
Research Act 1949 specifies the functions of the CSIRO.
Item 66 repeals paragraph 9(1)(g) which
states:
(g) to establish, develop and maintain standards
of measurement of physical quantities and, in relation to those
standards:
(i) to promote their use;
(ii) to promote, and participate in, the
development of calibration with respect to them; and
(iii) to take any other action with respect to
them that the Chief Executive determines;
This repeal removes this function from the
CSIRO. The function will be moved to the National Measurement
Institute by this legislation.
Items 59 to
65 make consequential amendments to the Act to
insert definitional and other references to the 'Chief Metrologist'
within the National Measurement Institute, to recognise the
relocation of the function previously performed by the CSIRO.
Items 67 to
88 are conventional transitional provisions to
facilitate the transfer of assets and records to the new National
Measurement Institute. There are also protective provisions in this
part of the Bill to ensure validity and continuity of relevant
standards of measurement and guidelines pending the commencement of
the amalgamated body.
Item 85 is a constitutional
safety net to ensure that compensation is paid on 'just terms' by
the Commonwealth where the amalgamation removes property in
circumstances where compensation is required.
Items 1 to 4
are technical amendments that enhance some existing definitions in
the Act (in subsection 3(1) of the Act) and to allow greater
flexibility in the coverage of units of measurement which are the
subject of guidelines issued by the Chief Metrologist under
existing section 7B. Item 5 is a simple
legislative drafting correction to the Act.
The table that accompanies the Notes on
'commencement' contained in the National Measurement Regulations
1999 reads as follows:
Table
|
Year and
number
|
Date of
notification in Gazette
|
Date of
commencement
|
Application, saving or
transitional provisions
|
|
1999 No.
110
|
17 June
1999
|
1 Oct
1999
|
|
|
1999 No.
185
|
1 Sept
1999
|
1 Sept
1999
|
|
Item 1 and 2
remove any ambiguity in the commencement of the Regulations by
specifying that the commencement of the Regulations is 1 October
1999.
The proposed amalgamation involves three
broad and separate functions. One of those functions is performed
by the National Measurement Laboratory within CSIRO. This
laboratory is already a national facility and it maintains and
develops Australia's national standards of physical measurement for
mass, area, length, volume, time, voltage and light. Another
existing entity is the National Standards Commission which
administers Australia's legal metrology system and it provides
testing and approval for the basic designs of measuring instruments
for use in trade and commerce. The other agency to be included in
the amalgamation, the AGAL, provides Australia with a range of
chemical and biological measurement services, including support for
key programs such as police forensic work, the Australian Customs
Service, sports drug testing and food import standards.
As a concept, the amalgamation of
functions to provide a one-stop shop can offer efficiencies for
government and industry. In certain circumstances, however,
amalgamations of activities may see the erosion of the priorities
of one particular function as it adjusts to the collective
priorities of the newly amalgamated body. There is no suggestion
that this will occur with the various aspects of weights and
measures but the allure of a one-stop shop needs to be weighed
against the possibility that it may inadvertently dampen any
potential for innovation in one or more particular
disciplines.
This concern is, perhaps, more relevant
to AGAL which is an analytical laboratory and which is not
necessarily involved in the science of metrology in the strict
definitional sense, although it does participate in the development
of international standards. To that extent, it is a little
anomalous to have a "Chief Metrologist" responsible for the
provision of analytical services in chemistry and
biology.
The retention of AGAL within an
executive department (as part of the National Measurement
Institute) is also interesting when it is considered that it also
provides independent analysis for law enforcement purposes.
Conceptually, it would seem that it is also worth considering
whether there are advantages for and against in placing such a
function in a statutory structure that is outside an executive
department. In the context of the overall review of its functions,
AGAL had suggested that it become a statutory authority in its
submission to the 2000 review of its operation and structure by
DISR and DoFA.(13)
-
P. H. Lane, Lane's Commentary on the Australian
Constitution, Law Book Company Limited, Sydney, 1986, p.
147.
-
The Fact Sheet on the Budget 2003-04 initiative is on the web
site for the Department of Industry, Tourism and Resources at:
http://www.industry.gov.au/content/itrinternet/cmscontent.cfm?objectID=BB889EC9-8DA7-418E-AD947343A1ED0C51
. The Minister for Industry, Tourism and Resources, Hon Ian
Macfarlane MP, issued a Media Release on 13 May 2003, 'Measuring up
to Industry Expectations with National Measurement Institute',
which can be found on ParlInfo at:
http://parlinfoweb.parl.net/parlinfo/Repository1/Media/pressrel/8IB960.pdf
.
-
The Hon Warren Entsch MP, Parliamentary Secretary to the
Minister for Industry, Tourism and Resources, Second Reading
Speech, National Measurement Amendment Bill 2003, House of
Representatives, Debates, 3 December 2003, p. 23546.
-
ibid.
-
The Hon Warren Entsch MP, Parliamentary Secretary to the
Minister for Industry, Tourism and Resources, Consideration in
Detail, Appropriation Bill (No. 1) 2003-2004, House of
Representatives, Debates, 18 June 2003, p. 16917. See
ParlInfo at:
http://parlinfoweb.parl.net/parlinfo/view_document.aspx?id=787969&table=HANSARDR
.
-
David McLennan, 'One-stop shop for measuring', Canberra
Times, 27 November 2003, p. 11.
-
Senator Kim Carr, Shadow Minister for Industry, Innovation,
Science and Research, 'Is smashing CSIRO the answer to the research
funding crisis', Public Lecture, Roberston Lecture Theatre,
Australian National University, 7 August 2003, p. 5.
-
Senator Kim Carr, Shadow Minister for Industry, Innovation,
Science and Research, Second Reading Speech, Higher Education
Legislation Amendment Bill 2003, Senate, Debates, 20
August 2003, p. 14064.
-
Senate Economic Legislation Committee, Consideration of
Additional Estimates, Senate, Debates, 12 February 2003 on
ParlInfo at:
http://parlinfoweb.parl.net/parlinfo/view_document.aspx?id=71334&table=ESTIMATE
.
-
Senator Lyn Allison, Senate, Debates, 'Health:
Ultrasound Standards', 2 December 2003, p. 18771 and 'Health:
Research', 15 September 2003, p. 15110.
-
Annual Report 2002 03, National Standards Commission,
p. vi.
-
ibid, p. 10.
-
See Lynne Reeder, 'Mini-Report: The AGAL submission',
Australasian Biotechnology, Volume 10 No. 6,
November-December 2000, pp. 18 19.
Brendan Bailey
30 January 2004
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2004
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
2004.
Back to top