Bills Digest no. 50 2008–09
National Measurement Amendment Bill 2008
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
National Measurement Amendment Bill
2008
Date
introduced: 24
September 2008
House: House of Representatives
Portfolio: Innovation, Industry, Science and
Research
Commencement:
1 July 2009. However, the
Commonwealth trade measurement system will not come fully into
effect until 1 July 2010 as specified in Schedule 2, Part
2.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To introduce a new national trade
measurement system for Australia based on the current trade
measurement systems of the states and territories. The new national
system will be administered by the Commonwealth Government, through
the National Measurement Institute.
In his second reading speech for the Bill, the Minister for
Minister for Small Business, Independent Contractors and the
Service Economy and Minister Assisting the Finance Minister on
Deregulation, Dr Craig Emerson, explained trade measurement in
simple terms as the use of measurement as the basis for the price
in a transaction . He also explained that a trade measurement
system is the term used to describe the infrastructure that is
needed to make sure that trade measurement instruments are
sufficiently accurate to give a fair result to buyer and
seller.[1]
The scope of Australia s existing trade measurement system is as
follows:
The trade measurement system in Australia
refers to all activities carried out by government and authorised
private sector bodies in the application and enforcement of state
and territory Trade Measurement Acts and Regulations. The system
covers:
- the approval and usage of measuring instruments for trade (such
as weighing scales, flow-meters, tanks, and beverage
dispensers);
- the sale of goods by measurement (of quantity or quality);
- packaging and labelling of pre-packaged articles;
- licensing of operators of public weighbridges;
- licensing of measuring instrument servicing organisations that
have personnel nominated to certify measuring instruments; and
- inspection of trade measuring instruments and pre-packages, and
penalties for breaches of the law.
Studies in Australia, USA and Canada have
indicated that the annual value of goods sold by measure is
typically about 50% of GDP in developed countries. Based on this
broad estimate, the trade measurement system in Australia may be
underpinning transactions worth more than $400 billion per annum.
It is estimated that business-to-business transactions account for
about 75% and retail transactions make up 25% of this
value.[2]
The use of a government-implemented trade measurement scheme
ensures that measuring implements used in trade are standardised,
thereby allowing consumer confidence in the broader
marketplace.
Robert McEntyre, in his address to the Queensland Studies
Authority Asia Pacific Forum in 2003 about Australia s technical
infrastructure, pointed out that:
In broad terms, the desired outcomes of an
effective Australian technical infrastructure include:
- assurance provided to both domestic and international
purchasers of Australian products, that the purchase has complied
with strict standards as enforced by internationally recognised
organisations, and
- increased competitiveness, market share, innovation and lower
operating costs for Australian industries and companies, through
optimising trading environments as a result of removing technical
barriers to trade.[3]
Currently, the majority of Australia s trade measurement system
is enacted and administered by state and territory governments. In
1990, all states and territories signed an agreement to adopt
Uniform Trade Measurement Legislation (UTML) by 1999 (with the
exception of Western Australia, who did not enact trade measurement
legislation until 2006). The enactment of mirror legislation by all
states and territories was intended to provide a high level of
consistency of regulation between jurisdictions. Each state and
territory has a similar set of Acts and Regulations for ensuring
that:
- all measuring instruments used in trade bear an inspector s or
servicing licensee s mark attesting to their accuracy
- weighbridge licensees comply with the regulations governing
weighbridges
- penalties are in place to deter incorrect or unjust use of
measuring instruments in trade
- measuring instruments used in trade have been pre-approved for
that purpose (pattern approval)
- responsibilities are established for administering authorities
(typically the state or territory trade measurement agency) to
arrange for the provision, custody and maintenance of state primary
standards of measurement
- pre-packaged articles are of a correct measure and correctly
marked, as specified in the corresponding regulations
- inspectors have the power to enter premises in order to fulfil
their inspection duties such as checking the accuracy of weighing
instruments or the correctness of pre-packaged articles, and
ensuring that trading practices are compliant
- there is a system for licensing organisations to certify the
accuracy of trade measuring instruments, and
- there is a licensing system for public weighbridge
operators.[4]
The Commonwealth currently only has a limited role in inspection
and enforcement of trade measurement, governing the sole area of
utility metering. This role is set out in the National
Measurement Act 1960.
The ongoing policy development of trade measurement issues
occurs at the forum of the Ministerial Council of Consumer Affairs
(MCCA), of which all jurisdictions (including the Commonwealth) are
members.
Despite the use of the UTML, inconsistencies have developed
between jurisdictions on issues such as fees, licensing and
legislative interpretation. Additionally, the use of a separate
(albeit similar) licensing scheme in each jurisdiction requires
industry to hold multiple licences when operating in more than one
jurisdiction.
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In 2006 the Standing Committee of Officials on Consumer Affairs
(SCOCA), operating under MCCA, commissioned a review of national
arrangements for administering trade measurement in Australia. The
Final Report from the review was published on 30 August 2006.
The Final Report detailed the consultation that occurred for the
Review:
Detailed submissions were received from the
Australian and New Zealand governments and from all state and
territory governments. In total, 56 submissions were received from
industry, of which 56% were from manufacturers and certifiers of
measuring instruments, 17% from retailers, 8% from agricultural
producers, 8% from packers and importers and 11% from others. No
submissions were received from consumer representatives.[5]
The lack of consumer industry submissions was discussed
further:
The consultants contacted a number of consumer
groups with a view to eliciting a consumer perspective on the
current system and identifying any requirements for change. The
organisations contacted included: the Australian Consumers
Association, the Consumer Federation of Australia, NRMA, RACV, the
Public Interest Advocacy Centre and the Consumer Law Centre in
Victoria. However, no submissions were received from consumer
organisations. Consumer groups typically cited a lack of resources,
the relatively short time frame allowed for responses and higher
priority consumer issues as the reasons for not making a
submission.[6]
The consultation process asked stakeholders to identify key
problem areas. The main problems identified were:
- legislative differences across jurisdictions, due to lack of
synchronisation of amendments to trade measurement acts and
regulations
- the lack of a national trade measurement policy focus, as
responsibilities lie with the states and territories
- different enforcement regimes, as jurisdictions have separate
trade measurement administration acts which reflect different
procedures, priorities, fees and charges
- multiple licensing systems for certifiers of measuring
instruments, involving multiple fees and reporting systems for
companies which operate across jurisdictions, and
- inconsistent advice and interpretation of legislation on the
part of trade measurement authorities, leading to industry
confusion and costs. [7]
In seeking to address the problems areas, the Review process was
framed to consider the key problems areas with the following
options for reform in mind:
- Option 1: Partial national legislation, based on the
UTML, with consistent state and territory Administration Acts
- Option 2: Full national legislation, including
administration aspects, with state and territory
administration
- Option 3: National legislation with contracted
administration undertaken by states and territories, and
- Option 4: National legislation and
administration.[8]
The Review Report detailed a number of respondents comments
about the current administrative arrangements for trade
measurement.[9] It
also offered a detailed analysis of each option for reform,
including stakeholder preferences for a solution (some of which are
detailed on pages 45-46 of the Final Report). Stakeholder comments
showed a range of preferences, mostly for options 2 or 4, and the
Report concluded that:
It is clear that the drivers for industry s
choice of options are national legislation; consistent
interpretation and application of legislation; and a single
licensing system for servicing licensees.[10]
Subsequently, the Review Report offered the following
table[11] as a
summary of its qualitative analysis of Options 1 4 (including the
practicality of their implementation).
In assessing the merits of each option, the Report
concluded:
Option 4 meets all of the concerns raised by
industry. Option 4 is, however, the most difficult to implement,
requiring not only the transfer of legislative responsibility but
also the transfer of assets, operations and funding
responsibilities from the States and Territories to the Australian
Government. Option 4 could only be achieved through a significant
commitment from the Australian Government to a national approach to
the administration of trade measurement. [12]
The Report also notes that while option 4 is the preferred
option of the majority of stakeholders, it is the most expensive
and will take longest to implement.[13]
The Energy Networks Association Limited stated in their submission
that:
Option 4 of the Discussion Paper would be the
most efficient administrative option for addressing energy sector
trade measurement issues and ensuring consistency and clarity of
approach between the energy market and trade measures arrangements.
This approach also appears to be the most appropriate way to
address future gas metrology arrangements, which are likely to
follow similar arrangements to those in electricity, albeit with
different rules given the significant differences in metrology
needs between the two fuel types.[14]
Ultimately, the Final Report recommended the adoption of option
4,[15] however it
also acknowledged that implementation of Option 4 would involve the
negotiation of budget transfers between the state and territory
governments and the Commonwealth Government.[16]
MCCA presented the recommendation to the Council of Australian
Governments (COAG), which was formally agreed to and accepted by
COAG on 13 April 2007.[17]
As the COAG agreement to reform trade measurement occurred
before the last election, it is presumed that the proposed new
system has in-principle bipartisan support. In April 2007 the then
Minister for Industry, Tourism and Resources, the Hon. Ian
MacFarlane, published a
media release[18] announcing the Howard Government s intention to adopt
the new trade measurement system from 1 July 2010.
Back to top
The Explanatory Memorandum for the Bill offers the following
Financial Impact Statement:
Funding of $31.65m, including $3m capital and
$2.3m depreciation, was provided to the Department (of Innovation,
Industry, Science and Research) for the transition to a national
system of trade measurement and its first year of its operation
(2007-08 to 2010-11). Ongoing funding of $23.653m including $2.3m
depreciation will be provided from 2011-12.[19]
The Final Report concluded that:
The Consultants recommend a phased
implementation of Option 4 over a period of 5 years, with the
establishment of a national trade measurement agency within the
first year. The start-up costs of this proposal would be $2 million
over 3 years. When fully implemented, annual operating costs
(excluding existing NMI operations) are estimated at $19 million
for an agency within the NMI or $20.6 million for a statutory
authority. A substantial portion of the ongoing costs could be met
through cost recovery from industry and through a budget transfer
from the States and Territories.
Budget estimates are based on the maintenance
of existing (state and territory) resourcing and service levels.
The number of trade measurement inspectors has declined
significantly over the past 5 years and there is general concern
that current resources are inadequate to cover new trade
measurement responsibilities such as product quality measurements.
It is anticipated that this situation would be partially addressed
through the achievement of operational efficiencies within a
national system, but a budget review may be required once a
national system is in place.
Direct financial benefits to industry have
proved difficult to quantify, but productivity benefits have been
clearly identified and would justify the additional investment on
the part of the Australian Government. The trade measurement system
in Australia underpins transactions worth more than $400 billion
per annum. The accuracy and equity of these transactions depend on
a strong measurement infrastructure and effective market
surveillance operations. The cost of implementing national
legislation and administration of the trade measurement system is
insignificant in comparison with its importance to the Australian
economy. [20]
In reforming the trade measurement
system, the Commonwealth Government has attempted to closely
replicate the current state and territory regime. Consequently, the
provisions in the Bill will establish offences, a licensing regime
and inspector powers which are largely identical to those already
in force in most jurisdictions. Similarly, the sizes of penalties
for offences in the Bill have been framed comparably to existing
trade measurement offence penalties.
However, as noted in the Explanatory Memorandum, the Bill also
introduces measures that have been approved by MCCA for inclusion
in the uniform state and territory legislation, but have not yet
been introduced across all jurisdictions.[21] This mainly refers to the
introduction of the average quantity system (AQS).
Currently, trade measurement legislation requires industry to
comply with a Minimum Quantity System (MQS) this means that an
offence is committed by a supplier or seller where a tested package
shows a shortfall (inadequate amount in comparison to the stated
amount on the packet) of the product in the package. As most
filling and packing processes are automated, it is considered
physically impossible for systems to achieve an exact amount as
they fill each package in a production run. Therefore, packers set
their target fill quantity to an excess level to ensure they do not
become liable for shortfall when tested. While the current regime
allows for certain tolerance levels of shortfalls (currently sets
at 5% in any package, provided the contents of randomly selected
packages of the same kind and quantity do not show an overall
average deficiency), problems still occur with some items,
particularly those that may lose weight or volume through
evaporation (such as dessicated goods, like mushrooms or
coconut).[22]
Another common complaint about the MQS is the cost that is incurred
by industry in filling packages to an excess level.
In contrast, an Average Quantity System (AQS) allows packers to
fill packages with an average amount, rather than a minimum amount.
Literature suggests that correct application of AQS gives a 97.5%
assurance that the measured content of pre-packed goods is accurate
within the prescribed tolerance levels.[23] AQS has been adopted by various major
trading nations, including Canada, China, the European Union,
Japan, USA and New Zealand. In an attempt to promote international
harmonisation of world trade practices, the International
Organisation of Legal Metrology recommended the adoption of AQS for
international trade in pre-packed goods.[24]
In 2006, the Queensland Office of Fair Trading released a
Regulatory Impact
Statement (RIS) about AQS for the measurement of pre-packed
articles. The RIS described compliance with AQS as involving a
three-rules-measure ,[25] as follows:
- Rule 1: the declared quantity on a package should accurately
reflect the quantity being supplied, so the average net content of
the packages in a lot (production run) may not be less than the
declared quantity.
- Rule 2: no more than 2.5% of the packages in a lot may have
negative errors more than the prescribed tolerable negative
error.
- Rule 3: No package shall have a negative error by more than
twice the prescribed tolerable negative error.
Some of the costs and benefits to industry identified in the RIS
are:
Benefits
- Using AQS rather than MQS provides uniformity of standards and
enables industry to compete on a more equitable basis with
international traders
- In most cases, once packers set their measurement delivery
systems to comply with AQS and implement a revised sampling system,
the number of checks required would not change significantly
- Some industries with smaller content limits than 50 grams could
benefit financially as the deficiency tolerance levels would
increase from 5 percent to 9 percent under AQS
- Possible long-term benefits to industry in terms of fairer
exchange and reduced degrees of over-packing
Costs
- Initially, there may be a need to extend sampling frequency,
which would require short-term additional resources
- The Mushroom and Soap industries, which experience some
difficulties with moisture loss, may need to incur significant
initial costs to adjust to AQS, although this is not certain
The Explanatory Memorandum notes that the AQS provisions in the
Bill may be accessed by industry on a voluntary basis and are
intended to support the export of pre-packaged goods (such as wine)
from Australia. It also states that Australian industry strongly
supports the introduction of an AQS system.[26]
While AQS is intended for use for pre-packaged articles for
export or trade outside of Australia, the provisions in the Bill do
not restrict its use to exportable goods, nor does it require goods
being exported to be packed in accordance with AQS standards. Those
not packed in accordance with AQS (including displaying the AQS
mark on packaging) are subject to the current MQS standards, which
are contained in Division 4 of Schedule 1 of the Bill.
Another new element in the proposed new
system is found in the framing of the Bills offences, as compared
to offences currently set in state and territory legislation. The
majority of offences in the Bill are set out with two tiers of
penalty a larger penalty requiring a fault element to the offence,
and a smaller penalty for the corresponding strict liability
offence. Examination of existing state and territory legislation
indicates that a general application of strict liability offence
provisions operates under the current system.
Offences requiring a fault element should be considered in the
context of Division 5 of the Criminal Code:
Where the physical element is conduct, the
fault element if no other is specified is intention (subsection
5.6(1)). Where the physical element is a circumstance or result,
the fault element if no other is specified is recklessness
(subsection 5.6(2)).[27]
A strict liability offence, in comparison, only requires
evidence of the physical element of the offence, resulting in a
lesser burden of proof and usually a lesser penalty. The
application of strict liability still allows a defence of honest
and reasonable mistake of fact to be raised.[28]
Justification for the two-tiered system of penalties is set out
in the Explanatory Memorandum:
The offence provisions in the Bill will apply
to a wide range of entities, from small businesses to large
multinational concerns, in a wide variety of circumstances. This
makes it desirable to have a range of enforcement options
appropriate to the difference circumstances to which the Bill might
apply.[29]
The penalties set in the Bill for offence provisions are
comparable to those currently offered in state and territory
legislation. While not appearing immediately similar (particularly
due to the use of penalty units in the Bill, compared to pecuniary
amounts as set in state legislation such as the Trade
Measurement Act 1989 (NSW)), the penalties for strict
liability offences set by the Bill are not vastly different from
the current penalties in state and territory legislation. However,
the Bill s penalties for fault element offences are much greater
than the current state and territory penalties (but not overly
onerous in context).
It is presumed that the states and Territories will, as part of
the COAG agreement, legislate to repeal their relevant Trade
Measurement legislation from the commencement of the new system
(scheduled for 1 July 2010).
However, even if this does not happen, the presence of
inconsistent state and territory laws would not impede the ability
for the federal legislation to operate. Under the Constitution of
Australia, section 51(xv) (weights and measures), the Commonwealth
has the power to legislate on trade measurement. Further, section
109 of the Constitution provides that Commonwealth laws override
state laws to the extent of any inconsistency between the two.
Back to top
The Bill makes amendments to the National Measurement Act
1960 (the Act).
Schedule 1 amends the Act to create a new
system of trade measurement in Australia. Items
1 64 insert necessary definitions and some minor
technical amendments for the new system. Of note is item
59, which sets out the scope of the new trade measurement
provisions, specifically excluding telephone and internet metering,
taxi metering, motor vehicle hire, tyre pressures, parking meters,
automated packing machines, or any measurements of greenhouse gas
emissions.
Item 65 repeals old Part VA of the Act, which
deals with utility meters, and replaces it with the majority of the
bills proposed new provisions. The requirements relating to utility
meters have been incorporated into the new trade measurement
scheme. Where necessary, current provisions have been replicated
and re-inserted (the majority of them in proposed Part
XIII utility meter verifiers).
Item 65 inserts the following proposed new
parts into the Act:
- Part IV Using measuring instruments for
trade
- Part V General Provisions on using measurement
in trade
- Part VI Articles packed in advance ready for
sale
- Part VII Other articles
- Part VIII Enforcement of Parts IV to VII
- Part IX Trade measurement inspectors
- Part X Servicing licensees
- Part XI Public Weighbridges
- Part XII Disciplinary action against servicing
licensees and public weighbridge licensees
- Part XIII Utility meter verifiers
The new Parts create a wide range of offences to enforce the new
trade measurement scheme. For most offences in the Bill, there are
two levels of offence - fault element offences and strict liability
offences. This point is discussed further in the Key Issues part of
this Digest.
Under section 4AA of the Crime Act 1914, a penalty unit
equals $110. It should also be noted that subsection 4B(3) of the
Crimes Act 1914 provides that, under certain
circumstances, if the guilty party is a body corporate rather a
natural person, the maximum penalty can multiplied by five times.
For example, if the general maximum penalty is 20 penalty units ($2
200), a body corporate could face a penalty of up to 100 penalty
units.
For ease of reference, the following commonly-occurring penalty
amounts convert to pecuniary amounts as follows:
|
No. of penalty units = pecuniary
amount
|
|
20
units
|
$2
200
|
|
40
units
|
$4
400
|
|
100
units
|
$11
000
|
|
200
units
|
$22
000
|
Proposed section 18LF states that infringement
notices can be given in relation to strict liability offences under
this Act, provided they are given within 12 months after discovery
of the contravention. Infringement notices must contain certain
information (proposed section 18LG) and specify
that criminal proceedings will not be brought if the penalty is
paid within 28 days. All infringement notices carry a pecuniary
penalty equal to 5 penalty units, or $550 (proposed section
18LH).
Proposed new Part IV deals with measuring
instruments. Generally, using a measuring instrument will attract
an offence if the instrument is either inaccurate or
unverified.
Verification of instruments is set out in proposed
sections 18GG 18GL. Verified instruments are represented
by a verification mark on the instrument.
The following table deals with offences relating to using
measuring instruments for trade.
proposed new
section
|
Offence
relating to use of measuring instruments for trade
|
penalty units
(for offence requiring fault element)
|
penalty units
(for strict liability offence)
|
|
18GA
|
Using a measuring instrument for trade that is not verified
|
100
|
20
|
|
18GB
|
Installing an unverified measuring instrument for use for
trade
|
200
|
40
|
|
18GC
|
Selling or supplying an unverified measuring instrument for use
for trade
|
200
|
40
|
|
18GD
|
Using a measuring instrument for trade in a way that produces
inaccurate measurement or information
|
200
|
40
|
|
18GD
|
Creating an inaccurate measurement or information through an act
or omission
|
200
|
40
|
|
18GE
|
Using an inaccurate measuring instrument for trade
|
200
|
40
|
|
18GE
|
Selling or supplying an inaccurate measuring instrument
|
200
|
40
|
|
18GM
|
Making a verification mark on a measuring instrument without
permission to do so
|
200
|
40
|
|
18GN
|
Selling or supplying a measuring instrument that has been marked
by someone who had no permission to do so
|
200
|
40
|
|
18GO
|
Making a mark on an instrument that may be mistaken as a
verification mark; or using, selling or supplying such an
instrument
|
200
|
40
|
|
18GO
|
Possessing the tools to make a mark that may be mistaken as a
verification mark
|
200
|
40
|
|
18GP
|
Wrongfully possessing an instrument for making a verification
mark
|
200
|
N/A
|
|
18GQ
|
Failure to remove a verification mark from an instrument that
has not been correctly adjusted or repaired under this
provision
|
200
|
40
|
This part regulates the use of measurement in trade generally.
Proposed section 18HA defines articles
packed in advance ready for sale; offences for this
section are set out below. Many of the offences in this Part are
drafted to ensure that articles are packed and sold with certain
prescribed information on the packet, such as measurement, price or
contact details of the supplier. Additionally, regulations can be
drafted to prohibit certain expressions being used on packages. The
Part allows for the issue of permits to exempt people from these
requirements where the subsequent breach is only minor and not
misleading, and compliance would impose unnecessary costs on
business (proposed section 18JX).
Other offences in this Part deal with the testing of packages
for shortfall (i.e. whether the amount or measurement in the packet
meets the amount or measurement that it is said to contain). This
part also introduces a new system of voluntary AQS marking see
discussion about AQS in the Key Issues section of this Digest.
The following table
outlines offence provisions on using measurement generally in
trade.
proposed new
section
|
Offence
relating to use of measurement in trade
|
penalty units
(for offence requiring fault element)
|
penalty units
(for strict liability offence)
|
|
18 HB
|
Selling, possessing for sale, or offering or exposing for sale,
an article packed in advance ready for sale which has not been
priced in accordance with its measurement[30]
|
100
|
20
|
|
18HC
|
Selling an article that must be sold by measurement, which has
not been priced in accordance with its measurement
|
100
|
20
|
|
18HD
|
Selling an article or utility without basing the price on the
prescribed unit of measuring[31]
|
N/A
|
40
|
|
18HE
|
Selling an article or utility which has not been measured by an
instrument which follows the prescribed scale intervals[32]
|
N/A
|
40
|
|
18HG
|
Using a measuring instrument for trade for a purpose that is not
its prescribed purpose
|
100
|
20
|
|
18HI
|
Selling, possessing for sale, or offering or exposing for sale,
and article which has been priced without reference to the net
measurement[33]
|
100
|
20
|
The following table deals with offences relating to
articles that have been packed in advance ready for
sale.
|
proposed new
section
|
Offence
relating to articles that have been packed in advance ready for
sale
|
penalty units
(for offence requiring fault element)
|
penalty units
(for strict liability offence)
|
|
18JA
|
Packing the article without marking it with the prescribed
information [34]
|
100
|
20
|
|
18JB
|
Importing the article into Australia without marking it with the
prescribed information [35]
|
100
|
20
|
|
18JC
|
Selling the article without it being marked with the prescribed
information [36]
|
100
|
20
|
|
18JD
|
Possessing for sale, or offering or exposing for sale, the
article without it being marked with the prescribed information
[37]
|
100
|
20
|
|
18JE
|
Failing to mark the article in the manner prescribed [38]
|
100
|
20
|
|
18JF
|
Packing the article and marking it with a prohibited expression
(as prescribed by Regulation)
|
200
|
40
|
|
18JG
|
Selling an article that has been marked with a prohibited
expression (as prescribed by Regulation) [39]
|
200
|
40
|
|
18JH
|
Possessing for sale, or offering or exposing for sale, an
article that has been marked with a prohibited expression (as
prescribed by Regulation) [40]
|
200
|
40
|
Proposed Division 3 of Part VI
deals with the use of an AQS mark. Proposed section
18JI notes that AQS stands for Average Quantity System.
The AQS system is voluntary and only applies to articles that are
packed in advance ready for sale. The Overview of the Division
states that by marking a package with an AQS mark, a person
represents that if the package is included in a group of like
packages sampled and tested in accordance with AQS procedures, the
group will be found on average to contain a measurement at least
equal to the marked measurement .
The provisions deal with appropriate marking of the AQS mark,
and provide offences for shortfalls identified by AQS testing that
is, where the stated average quantity of a sample of articles is
not met, as identified by an AQS test.
Absolute liability applies to the offences in proposed
sections 18JM JP. It applies to the physical elements of
certain paragraphs in each offence (outlined in each section). The
Explanatory Memorandum specifies for these sections that absolute
liability is being applied to jurisdictional elements of the
offences (which can be established as simple propositions of fact)
rather than elements going to the essence of the offence. [41] It explains that this
means there are no fault elements for the physical elements
specified, and the defence of mistake of fact is not available.
The following table deals with offences relating to AQS
marking.
|
proposed new
section
|
Offence
relating to articles packed in advance ready for sale, which bear
an AQS mark
|
penalty units
(for offence requiring fault element)
|
penalty units
(for strict liability offence)
|
|
18JK
|
Making an AQS mark on a package that is not in accordance with
the regulations
|
100
|
20
|
|
18JL
|
Packing an article and making a mark that is not an AQS mark,
but may be mistaken as one
|
200
|
40
|
|
18JL
|
Possessing for sale, or offering or exposing for sale, an
article that has a mark that is not an AQS mark, but may be
mistaken as one
|
200
|
40
|
|
18JL
|
Selling an article that has a mark that is not an AQS mark, but
may be mistaken as one
|
200
|
40
|
|
18JM
|
Packing an article and marking it with an AQS mark, which
eventually fails AQS testing for falling short in measurement
[42]
|
200
|
40
|
proposed new
section
|
Offence
relating to articles packed in advance ready for sale, which bear
an AQS mark
|
penalty units
(for offence requiring fault element)
|
penalty units
(for strict liability offence)
|
|
18JN
|
Importing an article which has been marked with an AQS mark,
which eventually fails AQS testing for falling short in
measurement
|
200
|
40
|
|
18JO
|
Possessing for sale, or offering or exposing for sale, an
article which has been marked with an AQS mark, and which
eventually fails AQS testing for falling short in measurement
[43]
|
200
|
40
|
|
18JP
|
Selling an article which has been marked with an AQS mark, which
eventually fails AQS testing for falling short in measurement
[44]
|
200
|
40
|
Where the AQS system has not been adopted, products are tested
for shortfall using a nationally recognised system of sampling and
testing groups of packages (proposed section
18JQ).
The Bill provides for shortfall testing of samples of groups of
packages, in accordance with national sampling procedures.
Shortfall is defined by proposed
section 18JR, and amounts to a finding that the
measurement in the package does not meet the measurement (or
minimum measurement) which is either marked on the packages
exterior, or represented by a document or statement.
Absolute liability applies to the offences in proposed
sections 18JS JV. It applies to the physical elements of
certain paragraphs in each offence (outlined in each section). The
Explanatory memorandum specifies for these sections that absolute
liability is being applied to jurisdictional elements of the
offences (which can be established as simple propositions of fact)
rather than elements going to the essence of the offence. [45] It explains that this
means there are no fault elements for the physical elements
specified, and the defence of mistake of fact is not available.
The following table deals with offences relating to articles
packed in advance ready for sale, which fail national sampling
procedures for shortfall.
|
proposed new
section
|
Offence
relating to articles packed in advance ready for sale, which DO NOT
bear an AQS mark
|
penalty units
(for offence requiring fault element)
|
penalty units
(for strict liability offence)
|
|
18JS
|
Packing an article which is found to have a shortfall[46]
|
200
|
40
|
|
18JT
|
Importing an article into Australia which is found to have a
shortfall
|
200
|
40
|
|
18JU
|
Possessing for sale, or offering or exposing for sale, an
article which is found to have a shortfall (whether against the
amount stated on the package, or on the receptacle which contains
the package)[47]
|
200
|
40
|
|
18JV
|
Selling an article which is found to have a shortfall (whether
against the amount stated on the package, or on the receptacle
which contains the package))[48]
|
200
|
40
|
This Part sets out offences relating to articles that are not
packed in advance ready for sale, i.e. sold for a price determined
by reference to the measurement of the article (proposed
section 18K). According to the overview of the Part,
measurements must be made in such a way that the purchaser can see
it being made; alternatively, where the purchaser is absent,
written statements of the measurement must be provided. The Part
also contains a shortfall offence, and makes it an offence to sell
packaging for an article at a price per unit of measurement, where
the article has also been charged on a price per unit basis.
The following table deals with offences relating to articles
that are sold for a price determined by reference to the
measurement of the article (i.e. not articles packed in advance
ready for sale).
proposed new
section
|
Offence
relating to articles sold for a price determined by reference to
the measurement of the article
|
penalty units
(for offence requiring fault element)
|
penalty units
(for strict liability offence)
|
|
18KA
|
Selling an article to a purchaser to who is present, and not
making the measuring process or measurement readily visible to that
purchaser
|
200
|
40
|
|
18KB
|
Selling an article to a purchaser who is not present, and
failing to provide them with a written statement of the measurement
of the article
|
200
|
40
|
|
18KC
|
Selling an article for a price per unit of measurement, and also
charging for packaging for that article on a price per unit of
measurement basis
|
200
|
40
|
|
18KD
|
Selling an article which measures less than it should
(shortfall)
|
200
|
40
|
Proposed sections 18L 18LQ outline enforcement
issues relating to the offences listed in the tables above.
In particular, proposed section 18LA sets out
the making of evidentiary certificates these are certificates made
by trade measurement inspectors to show where a package has failed
testing, either against AQS testing procedures or national sampling
procedures. The section states that an evidentiary certificate will
be admissible as prima facie evidence of the matters stated on the
certificate. However, certificates must be provided to defendants
at least 14 days before being admitted as evidence
(proposed section 18LB) and further evidence,
either supporting or rebutting an evidentiary certificate, must be
considered on its merits (proposed section 18LD).
Proposed section 18LE also clarifies the
evidentiary status of information provided on an articles
packaging.
Part VIII also deals with infringement notices
see page 15 of this Digest.
The Federal Court or Federal Magistrates Court can grant an
injunction restraining persons from committing offence(s) under
Parts IV, V, VI or VII of the Act (proposed section
18LO).
Back to top
Proposed section 18MA provides for the
appointment of APS employees, Commonwealth authority employees, or
Commonwealth office holders, as trade measurement inspectors. The
section states that inspectors must hold prescribed qualifications,
and they may be appointed to a particular class of inspector (as
prescribed by regulation). Inspectors must hold a specially-issued
identity card in order to exercise inspectors powers or perform
functions (proposed section 18MB).
The powers of trade measurement inspectors are summarised in the
Overview of Division 3 at proposed section 18MD,
which states:
Trade measurement inspectors have the power to
enter business or residential premises or to inspect business
vehicles. Inspectors also have the power to search and seize
things. This includes powers to copy documents, record information
and test articles and instruments.
Inspectors must not enter residential premises without consent
or a warrant (proposed subsection 18MD(2)). This
is also reflected in the drafting of each power, which require an
inspector to leave a residential premises if they have been
requested to do so (except where they hold a warrant).
The monitoring power is set out in proposed section
18ME, which allows entry for the purposes of finding out
if the following have been complied with:
- Parts IV, V, VI, VII, or
- licences issued under Parts X or XI, or
- conditions of appointment of utility meter verifiers under Part
XIII,
The section also allows an inspector who, while on residential
premises under a warrant, and believes on reasonable grounds that
they have found evidential material of a breach, to secure the
material pending obtaining a warrant for its seizure.
The power to collect evidential material is set out in
proposed section 18MF. Under the section, an
inspector must have reasonable grounds for suspecting that there
may be evidential material[49] on a premises or vehicle, in order to enter the
premises or vehicle to look for it (and seize it, if it is
found).
General inspector powers are set out in proposed section
18MG. They include searching premises; taking photographs,
audio or video recordings, or making sketches; sampling and testing
measuring instruments; inspecting, examining, sampling, measuring
or conducting tests on articles or packages; and inspecting and
taking extracts or copies of books, records or documents. The
section allows inspectors to sample and test, even if it might
cause damage or destruction, so long as they are not unreasonably
destructive in the process.
Proposed section 18MH makes it an offence to
refuse, or fail to comply with a request, to answer questions or
produce documents for an inspector. Under the section, inspectors
may require the controller of a premises or vehicle to answer any
question put by the inspector, and produce any book, record or
document requested by the inspector (not applicable on residential
premises without a warrant). The section provides two offence
provisions for refusal or failure to comply one at
proposed subsection 18MH(4),
punishable by 200 penalty units; and a strict liability offence at
proposed subsection 18MH(5), punishable by 40
penalty units. However, the section provides that a person is
excused from complying with the requirement to answer
questions/produce documents if to do so would tend to incriminate
the person or expose them to a penalty (proposed paragraph
18MH(6)). The Explanatory Memorandum notes that this is to
protect a person s common law right not to incriminate him or
herself[50] to
penalties under external legislation. Upon claiming immunity under
subsection (6), a person assumes the evidential burden to justify
their reliance on the subsection.
Other powers include a power to require an English translation
of a document (with a penalty for non-compliance of up to 200
penalty units) (proposed section 18MI); power to
verify measuring instruments on request, for a fee
(proposed section 18MK); and obligation to
obliterate a verification mark on an instrument which should no
longer bear it (proposed section 18MM).
Obligations of inspectors include:
- Obligation to produce identity card on request proposed
section 18MN
- Obtaining consent to enter residential premises
proposed section 18MP, and
- Provide copies of seized evidence on request proposed
section 18MS.
Where damage is caused to electronic equipment while an
inspector collects evidentiary material, the Commonwealth must pay
the owner of the equipment compensation (proposed section
18MR).
Proposed sections 18MY 18MZD provide for the
making and issuing of warrants, for the purposes of monitoring
residential premises.
Proposed Part X deals with the granting of
servicing licensees. Proposed section 18NB gives
the Secretary authority to grant servicing licenses to applicants;
this section states that an application must be granted unless
there are grounds for refusal under the Act. Proposed
section 18NC sets out the circumstances in which a licence
must be refused. The circumstances are the same as those currently
set out in the equivalent NSW legislation (Trade Measurement
Act 1989 (NSW)), with the added circumstance that an
application must be refused if neither the applicant nor any of
their employees are competent to be a verifier (proposed
paragraph 18NC(1)(d)). What constitutes competency is not
clear; however, it may be set by Regulations in the future.
Servicing licences are subject to conditions (proposed
sections 18NG and 18NH) and breaching a
condition of a servicing licence (for both licensees and employees
acting outside of their scope of employment) is a strict liability
offence, punishable by 30 penalty units (proposed section
18NO). This is in addition to possible disciplinary action
against licensees under proposed Part XII, which
provides for possible reprimand, or suspension or cancellation of
licences.
The provisions for public weighbridge licensing are similar to
those for servicing licensing in Part X. The
circumstances for refusal of a public weighbridge licence
replicates those currently set out in NSW legislation, with the
added circumstance that an application must be refused if neither
the applicant nor their employees, contractors, or contractors
employees, are competent to be a public weighbridge operator
(proposed paragraph 18PC(1)(d)). As with servicing
licences (above), the meaning of competent in this context is
unclear. A public weighbridge licensee who wishes to engage an
external contractor to operate the weighbridge must first apply to
the Secretary (proposed section 18PK). Possible
disciplinary action under proposed Part XII
applies to weighbridge licences.
Operating a public weighbridge without a licence, or breaching a
licence condition (whether by licensee, employee, contractor or
contractor s employee) is a strict liability offence punishable by
30 penalty units, or $3300 (proposed sections 18PT
and 18PU).[51] Compared to the current penalty in NSW for
operating a public weighbridge without a licence ($20 000 see
section 43, Trade Measurement Act 1989 (NSW)[52]), this penalty seems
relatively light.
Part XIII contains proposed sections 18R 18RI,
and deals with the appointment of utility meter verifiers. This
Part replicates the current provisions for appointment of utility
meter verifiers which will be repealed by item 65
and replaced with new Parts IV XIII. The
provisions are, on the whole, unchanged from the current Act. The
only identified change is in proposed section
18RD, which requires the Secretary to give notice to a
verifier of their intention to take disciplinary action, and gives
a verifier 14 days in which to make a written submission. The
period for making a submission is currently 28 days (section 18ZG
of the Act). The Explanatory Memorandum does not discuss the basis
for this shortened timeframe.
Another item of significance in Schedule 1 of the Bill is
item 72, which does the following:
- inserts a number of proposed new sections into the Act to
clarify to liability of persons who commit offences under the Act.
In particular, they state that a person is vicariously liable for
employees or agents who commit offences against the Act within the
scope of their employment/authority, or at the authorisation of the
employer/principal; and that a person is not criminally responsible
for offences they commit within the scope of their employment
(proposed sections 19C 19F)
- inserts an offence provision at proposed section
19H, which states that a person commits an offence if they
obtain protected information in the course of their duties under
the Act, and subsequently use, copy, record or disclose that
protected information. This offence is punishable by imprisonment
for 2 years. A number of exceptions apply at paragraph
19H(3), including an excuse of lawful purpose or
consent
- provides the Administrative Appeals Tribunal power of review
for certain decisions under the Act (proposed section
19J), and
- provides that, if the Commonwealth government acquires property
from a person under the Act, other than on just terms, the
Commonwealth government must pay that person a reasonable amount of
compensation (proposed section 19N). The
constitutionality of such a provision particularly the use of term
reasonable amount of compensation rather than compensation on just
terms is indeterminate. It is designed to be an insurance provision
to cover possible breaches of section 51(xxxi) of the Constitution
(acquisition of property by the Commonwealth must be on just
terms). The wording is a form of what used to be called a Historic
Shipwrecks clause [53] and a clause using similar wording is currently under
challenge before the High Court.[54] The Government has said it has legal advice that
a provision to pay a reasonable amount of compensation gives effect
to the requirement for the payment of just terms compensation under
the Constitution.[55]
Schedule 2 of the Bill makes application and
transitional provisions for the new trade measurement scheme,
including:
- continued application of existing verification, certification
and licensee s marks; servicing licence and public weighbridge
licences; and existing marking systems for utility meters
(items 8, 9, 12, 18 and 19)
- use of the existing Uniform Test Procedure (published by the
NMI) as the national instrument test procedures, until new
procedures can be determined
Concluding comments
It is likely that there will be widespread support for the
passage of this Bill. Openly supported by both Government and
Opposition, industry and stakeholders, it is expected that the new
trade measurement system will reduce compliance costs for industry
and remove complications associated with differences between states
and Territories.
Back to top
[2]. Final Report Review of National
Arrangements for Administering Trade Measurement in Australia,
30 August 2006, p. 6. This Review into the national trade
measurement system was commissioned by the Standing Committee of
Officials on Consumer Affairs and prepared by Booz Allen Hamilton
(Australia) Ltd.
[50]. Explanatory
Memorandum, p. 91. The common law rule that a person cannot be
required to incriminate him or herself is discussed at pages 100-1
of
A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers; also see Sorby v The
Commonwealth (1983) 152 CLR 281.
[53] The clause
arises from the Historic Shipwrecks Act 1976.
PaoYi Tan
27 October 2008
Bills Digest Service
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