National Measurement Amendment Act 2008 (Cth)

National Measurement Amendment Act 2008

No. 137, 2008

An Act to amend the law in relation to measurement, and for related purposes

Contents

National Measurement Amendment Act 2008

No. 137, 2008

An Act to amend the law in relation to measurement, and for related purposes

[Assented to 8 December 2008]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the National Measurement Amendment Act 2008.

2Commencement

This Act commences on 1 July 2009.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Trade measurement

National Measurement Act 1960

1

Subsection 3(1)

Insert:

approved pattern, in relation to a measuring instrument, means a pattern approved for the measuring instrument under section 19A that:

1. (a)

   is currently in force; or

2. (b)

   has expired or been cancelled (but not withdrawn) and was in force when the measuring instrument was first verified.

2

Subsection 3(1)

Insert:

AQS mark has the meaning given by section 18JJ.

3

Subsection 3(1)

Insert:

AQS sampling procedures are sampling procedures prescribed for the purposes of Subdivision 3‑C of Division 3 of Part VI.

4

Subsection 3(1)

Insert:

AQS test procedures are test procedures prescribed for the purposes of Subdivision 3‑C of Division 3 of Part VI.

5

Subsection 3(1)

Insert:

AQS threshold is the threshold prescribed for the purposes of Subdivision 3‑C of Division 3 of Part VI.

6

Subsection 3(1)

Insert:

article includes a substance.

1. 7

   Subsection 3(1) (paragraph (b) of the definition of Australian legal unit of measurement)

Omit “subsection 7B(1)”, substitute “section 7B”.

8

Subsection 3(1)

Insert:

automated packing machine means a machine that follows a pre‑determined program for automatically measuring articles in pre‑determined quantities as part of the packing process.

9

Subsection 3(1)

Insert:

business premises means premises or a part of premises:

1. (a)

   used for the importation, packing, storage or sale of articles or utilities sold, or to be sold, by measurement; or

2. (b)

   on which a measuring instrument is used for trade; or

3. (c)

   used for activities incidental to the uses mentioned in paragraph (a) or (b);

but does not include premises or a part of premises occupied as a residence or for residential accommodation.

10

Subsection 3(1)

Insert:

business vehicle means a vehicle:

1. (a)

   used for the transportation of articles or utilities sold, or to be sold, by measurement (whether packed in advance ready for sale or otherwise); or

2. (b)

   on which a measuring instrument is used for trade; or

3. (c)

   used for the measurement of articles or utilities sold, or to be sold, by measurement; or

4. (d)

   used for activities incidental to the uses mentioned in paragraph (a), (b) or (c).

11

Subsection 3(1)

Insert:

controller, in relation to premises, a part of premises or a vehicle, means the person apparently in control of the premises, the part of the premises or the vehicle.

12

Subsection 3(1)

Insert:

earlier corresponding law means any of the following:

1. (a)

   the Trade Measurement Act 1989 of New South Wales;

2. (b)

   the Trade Measurement Administration Act 1989 of New South Wales;

3. (c)

   the Trade Measurement Act 1995 of Victoria;

4. (d)

   the Trade Measurement (Administration) Act 1995 of Victoria;

5. (e)

   the Trade Measurement Act 1990 of Queensland;

6. (f)

   the Trade Measurement Administration Act 1990 of Queensland;

7. (g)

   the Trade Measurement Act 2006 of Western Australia;

8. (h)

   the Trade Measurement Administration Act 2006 of Western Australia;

9. (i)

   the Trade Measurement Act 1993 of South Australia;

10. (j)

    the Trade Measurement Administration Act 1993 of South Australia;

11. (k)

    the Trade Measurement Act 1999 of Tasmania;

12. (l)

    the Trade Measurement (Tasmania) Administration Act 1999 of Tasmania;

13. (m)

    the Trade Measurement Act 1991 of the Australian Capital Territory;

14. (n)

    the Trade Measurement (Administration) Act 1991 of the Australian Capital Territory;

15. (o)

    the Trade Measurement Act of the Northern Territory;

16. (p)

    the Trade Measurement Administration Act of the Northern Territory;

and includes the regulations made under those Acts.

13

Subsection 3(1)

Insert:

evidential material means any of the following:

1. (a)

   any thing with respect to which an offence against this Act has been committed or is suspected, on reasonable grounds, to have been committed;

2. (b)

   any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence;

3. (c)

   any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.

14

Subsection 3(1)

Insert:

inspector’s mark means the mark allotted to a trade measurement inspector by the Secretary under subsection 18MA(5).

15

Subsection 3(1)

Insert:

made available as a public weighbridge has the meaning given by section 3A.

16

Subsection 3(1)

Insert:

marked: something is marked on a package if:

1. (a)

   it is marked on the package itself; or

2. (b)

   it is marked on a label attached to or enclosed with, but visible within, the package.

17

Subsection 3(1)

Insert:

marking a measuring instrument with a verification mark has the meaning given in subsection (5).

18

Subsection 3(1)

Insert:

measurement means a determination of number or physical quantity, other than for descriptive purposes only.

19

Subsection 3(1)

Insert:

measuring instrument gives an inaccurate measurement has the meaning given in subsection (6).

1. 20

   Subsection 3(1) (paragraph (b) of the definition of metric system of measurement)

Omit “approved; and”, substitute “approved.”.

1. 21

   Subsection 3(1) (paragraph (c) of the definition of metric system of measurement)

Repeal the paragraph.

22

Subsection 3(1)

Insert:

national group test procedures are test procedures with respect to groups of packages prescribed for the purposes of Subdivision 4‑B of Division 4 of Part VI.

23

Subsection 3(1)

Insert:

national instrument test procedures are procedures for testing measuring instruments determined by the Minister under subsection 18GG(2).

24

Subsection 3(1)

Insert:

national sampling procedures are sampling procedures prescribed for the purposes of Subdivision 4‑B of Division 4 of Part VI.

25

Subsection 3(1)

Insert:

national single article test procedures are test procedures with respect to single packages prescribed for the purposes of Subdivision 4‑B of Division 4 of Part VI.

26

Subsection 3(1)

Insert:

national test threshold is the threshold prescribed for the purposes of Subdivision 4‑B of Division 4 of Part VI.

27

Subsection 3(1)

Insert:

net measurement, in relation to an article, means the measurement of the article disregarding any packaging or other thing that is not part of the article.

28

Subsection 3(1)

Insert:

obliterate, in respect of a verification mark, means destroy, or remove and destroy, a verification mark.

29

Subsection 3(1)

Insert:

package includes:

1. (a)

   a container, wrapper, confining band or other thing in which an article is packed, or 2 or more articles are packed, for sale as a single item; and

2. (b)

   anything around which an article is wound or wrapped, or 2 or more articles are wound or wrapped, for sale as a single item.

30

Subsection 3(1)

Insert:

packed in advance ready for sale has the meaning given by section 18HA.

31

Subsection 3(1)

Insert:

premises means:

1. (a)

   an area of land or any other place, whether or not it is enclosed or built on; or

2. (b)

   a building or other structure.

32

Subsection 3(1)

Insert:

public weighbridge means a weighbridge that is made available as a public weighbridge.

33

Subsection 3(1)

Insert:

public weighbridge licence means a licence granted under section 18PB.

34

Subsection 3(1)

Insert:

public weighbridge licensee means a person to whom a licence is granted under section 18PB.

35

Subsection 3(1)

Insert:

residential premises means premises, or a part of premises, that is occupied as a residence or for residential accommodation.

36

Subsection 3(1)

Insert:

seize includes secure against interference.

37

Subsection 3(1)

Insert:

sell includes barter or exchange.

38

Subsection 3(1)

Insert:

servicing licence means a licence granted under section 18NB.

39

Subsection 3(1)

Insert:

servicing licensee means a person to whom a licence is granted under section 18NB.

40

Subsection 3(1)

Insert:

servicing licensee’s mark means the mark approved by the Secretary for use by or on behalf of a servicing licensee in verifying measuring instruments.

41

Subsection 3(1)

Insert:

shortfall, in relation to an article packed in advance ready for sale that is not marked with an AQS mark, has the meaning given by section 18JR.

42

Subsection 3(1)

Insert:

this Act includes the regulations and any other instrument made under a provision of this Act.

43

Subsection 3(1)

Insert:

trade measurement inspector means:

1. (a)

   in relation to the exercise of a power or the performance of a function or duty in circumstances prescribed under paragraph 18MA(3)(b)—a person appointed to a class of trade measurement inspectors authorised to exercise that power or perform that function or duty in those circumstances; and

2. (b)

   in relation to the exercise of a power or the performance of a function or duty otherwise—a person appointed to a class of trade measurement inspectors authorised to exercise that power or perform that function or duty.

44

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

Repeal the definition, substitute:

use for trade: a person uses a measuring instrument for trade if:

1. (a)

   the person is actually or apparently in control of the measuring instrument; and

2. (b)

   the person uses it, or makes it available for another person to use, for either or both of the following purposes:

   1. (i)

      determining the consideration in respect of a transaction;

   2. (ii)

      determining the amount of a tax.

45

Subsection 3(1)

Insert:

utility means gas, electricity or water.

46

Subsection 3(1) (definition of utility meter)

Omit “Part VA”, substitute “Part IV”.

47

Subsection 3(1)

Insert:

utility meter verifier means a person appointed as a utility meter verifier under section 18RA or 18RH.

48

Subsection 3(1)

Insert:

utility meter verifier’s mark means a mark allocated to a person appointed as a verifier in relation to utility meters under section 18RA or 18RH for use by the verifier or its employees (if any), when verifying utility meters.

49

Subsection 3(1)

Insert:

vehicle includes vessel, aircraft and any other means of conveying persons or goods.

50

Subsection 3(1) (definition of verification)

Repeal the definition, substitute:

verification, in relation to a measuring instrument, has the meaning given by section 18GG.

51

Subsection 3(1)

Insert:

verification mark means:

1. (a)

   in relation to utility meters—a utility meter verifier’s mark; and

2. (b)

   in relation to any other measuring instrument:

   1. (i)

      an inspector’s mark; or

   2. (ii)

      a servicing licensee’s mark.

52

Subsection 3(1)

Insert:

verifier:

1. (a)

   in relation to utility meters—means a person who is permitted to verify the utility meter under section 18GI; and

2. (b)

   in relation to any other measuring instrument—means a person who is permitted to verify the measuring instrument under section 18GH.

1. 53

   Subsection 3(1) (definition of verifying authority)

Repeal the definition.

54

Subsection 3(1)

Insert:

weighbridge means a measuring instrument that is of a capacity of 3 tonnes or more and has one or more platforms by the use of which the measuring instrument is capable of determining the mass of a vehicle or of livestock.

55

At the end of section 3

Add:

1. (5)

   A reference in this Act to a person marking a measuring instrument with a verification mark includes the marking of the measuring instrument itself, the affixing of a label to the measuring instrument or the marking of a label affixed to the measuring instrument.

2. (6)

   For the purposes of this Act, a measuring instrument gives an inaccurate measurement if the measuring instrument does not operate within the appropriate limits of error that are permitted under the regulations.

3. (7)

   A reference in this Act to a particular provision or group of provisions includes a reference to regulations made under that provision or under any one or more of the provisions of that group of provisions.

56

After section 3

Insert:

3AMeaning of made available as a public weighbridge

1. (1)

   A weighbridge is made available as a public weighbridge if:

   1. (a)

      it is open for use by or on behalf of the public; or

   2. (b)

      it is available for use for a charge.

2. (2)

   A weighbridge is not made available as a public weighbridge if the weighbridge is used by a person who owns or who has contracted to operate the weighbridge:

   1. (a)

      for the purpose of determining the consideration in an agreement between the person and another person; or

   2. (b)

      for purposes that do not involve another person.

3. (3)

   The regulations may prescribe other circumstances in which a weighbridge is taken not to be made available as a public weighbridge for the purposes of this Act.

57

Paragraph 4(1)(e)

Repeal the paragraph, substitute:

1. (e)

   to provide for a national system of trade measurement;

58

Subsection 4(3)

Repeal the subsection.

59

After section 4A

Insert:

4BApplication of trade measurement provisions

1. (1)

   Parts IV to XIII of this Act do not apply to a measurement, or an instrument used for the purposes of a measurement, to determine any of the following:

   1. (a)

      charges relating to telephone calls or the use of internet services;

   2. (b)

      the fare payable for use of a taxi;

   3. (c)

      the charge for the hire of a motor vehicle;

   4. (d)

      tyre pressures;

   5. (e)

      the expiration of time, or the calculation of time, for parking a vehicle.

2. (2)

   Parts IV to XIII of this Act do not apply to a measuring instrument that is an automated packing machine.

3. (3)

   Parts IV to XIII of this Act do not apply to a measurement for the purposes of:

   1. (a)

      reporting and disseminating information relating to greenhouse gas emissions, greenhouse gas projects, energy production and energy consumption under the National Greenhouse and Energy Reporting Act 2007; or

   2. (b)

      reporting and disseminating information relating to greenhouse gas emissions or greenhouse gas projects under any other law of the Commonwealth or of a State or Territory; or

   3. (c)

      emissions trading under a law of the Commonwealth or of a State or Territory.

60

Subsection 7B(1)

Omit “(1) The”, substitute “The”.

61

Subsection 7B(1)

Omit “issue written”, substitute “, by legislative instrument, issue”.

62

Subsection 7B(2)

Repeal the subsection.

63

Subsection 8A(1)

After “The Chief Metrologist may”, insert “, by legislative instrument,”.

64

Subsection 8A(3)

Repeal the subsection.

65

Part VA

Repeal the Part, substitute:

Part IV—Using measuring instruments for trade

Division 1—Overview of Part

18GOverview

Overview of Part

(1) Measuring instruments must be verified, used in a way that gives an accurate measurement, and be accurate.

(2) Division 2 creates offences to deal with these matters.

(3) Division 3 establishes the system for verifying measuring instruments.

Division 2—Requirements for use of measuring instruments for trade

18GAMeasuring instruments used for trade to be verified

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person uses a measuring instrument for trade; and

   2. (b)

      the measuring instrument is not verified.

   Penalty: 100 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person uses a measuring instrument for trade; and

   2. (b)

      the measuring instrument is not verified.

   Penalty: 20 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   If:

   1. (a)

      a measuring instrument is on premises, or on a part of premises; and

   2. (b)

      the consideration in respect of a transaction or the amount of a tax is determined on those premises, or that part of those premises;

it is presumed for the purposes of this section that the measuring instrument has been used for trade on the premises or that part of the premises unless the contrary is established.

1. (5)

   If:

   1. (a)

      a measuring instrument is in or on a vehicle; and

   2. (b)

      the consideration in respect of a transaction or the amount of a tax is determined in or on that vehicle;

it is presumed for the purposes of this section that the measuring instrument has been used for trade in or on the vehicle unless the contrary is established.

18GBInstalling unverified measuring instruments

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person installs in or on any premises or vehicle a measuring instrument; and

   2. (b)

      the measuring instrument is installed for use for trade; and

   3. (c)

      the measuring instrument is not verified.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person installs in or on any premises or vehicle a measuring instrument; and

   2. (b)

      the measuring instrument is installed for use for trade; and

   3. (c)

      the measuring instrument is not verified.

   Penalty: 40 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18GCSupplying unverified measuring instruments

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells or otherwise supplies a measuring instrument; and

   2. (b)

      the measuring instrument is sold or otherwise supplied for use for trade; and

   3. (c)

      the measuring instrument is not verified.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person sells or otherwise supplies a measuring instrument; and

   2. (b)

      the measuring instrument is sold or otherwise supplied for use for trade; and

   3. (c)

      the measuring instrument is not verified.

   Penalty: 40 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18GDInaccurate use of measuring instruments

Offence requiring fault element

1. (1)

   A person commits an offence if the person:

   1. (a)

      uses a measuring instrument for trade; and

   2. (b)

      does so in such a way, or under such circumstances, that the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if the person:

   1. (a)

      uses a measuring instrument for trade; and

   2. (b)

      does so in such a way, or under such circumstances, that the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately.

   Penalty: 40 penalty units.

Offence requiring fault element

1. (3)

   A person commits an offence if:

   1. (a)

      the person does, or fails to do, something in relation to a measuring instrument; and

   2. (b)

      the person’s act or omission causes, or is likely to cause, the measuring instrument to give an inaccurate measurement or to give other information (including a statement as to price) inaccurately when used for trade.

   Penalty: 200 penalty units.

Strict liability offence

1. (4)

   A person commits an offence if:

   1. (a)

      the person does, or fails to do, something in relation to a measuring instrument; and

   2. (b)

      the person’s act or omission causes, or is likely to cause, the measuring instrument to give an inaccurate measurement or to give other information (including a statement as to price) inaccurately when used for trade.

   Penalty: 40 penalty units.

2. (5)

   Subsections (2) and (4) are offences of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18GEUsing or supplying inaccurate measuring instruments

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person uses a measuring instrument for trade; and

   2. (b)

      the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person uses a measuring instrument for trade; and

   2. (b)

      the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately.

   Penalty: 40 penalty units.

2. (3)

   If:

   1. (a)

      a measuring instrument is on premises, or on a part of premises; and

   2. (b)

      the consideration in respect of a transaction or the amount of a tax is determined on those premises, or that part of those premises;

it is presumed for the purposes of subsections (1) and (2) that the measuring instrument has been used for trade on the premises or that part of the premises unless the contrary is established.

1. (4)

   If:

   1. (a)

      a measuring instrument is in or on a vehicle; and

   2. (b)

      the consideration in respect of a transaction or the amount of a tax is determined in or on that vehicle;

it is presumed for the purposes of subsections (1) and (2) that the measuring instrument has been used for trade in or on the vehicle unless the contrary is established.

Offence requiring fault element

1. (5)

   A person commits an offence if:

   1. (a)

      the person sells or otherwise supplies a measuring instrument for use for trade; and

   2. (b)

      the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately.

   Penalty: 200 penalty units.

Strict liability offence

1. (6)

   A person commits an offence if:

   1. (a)

      the person sells or otherwise supplies a measuring instrument for use for trade; and

   2. (b)

      the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately.

   Penalty: 40 penalty units.

2. (7)

   Subsections (2) and (6) are offences of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

Division 3—Verification of measuring instruments

18GFOverview

Overview of Division

(1) This Division deals with the verification of measuring instruments.

(2) Verification is defined in section 18GG. It is a process of ensuring that measuring instruments operate accurately.

(3) Trade measurement inspectors, servicing licensees and employees of servicing licensees are permitted to verify measuring instruments (other than utility meters) (see section 18GH).

(4) Utility meter verifiers are permitted to verify utility meters (see section 18GI).

(5) Certain requirements must be met before a measuring instrument may be verified (see section 18GK).

(6) This Division contains offences for persons who:

1. (a)

   use a verification mark when not permitted to do so (see section 18GM); and

2. (b)

   sell or supply measuring instruments that have been marked with a verification mark by a person not permitted to do so (see section 18GN); and

3. (c)

   mark measuring instruments in a misleading way (see section 18GO); and

4. (d)

   possess false verification marks (see section 18GP); and

5. (e)

   fail to obliterate verification marks if a measuring instrument’s metrological performance is affected by repairs (see section 18GQ).

18GGMeaning of verification

1. (1)

   A measuring instrument is verified if:

   1. (a)

      either:

      1. (i)

         a verifier is satisfied that the measuring instrument complies with the requirements for verification set out in section 18GK when tested in accordance with the national instrument test procedures and the measuring instrument is marked with a verification mark; or

      2. (ii)

         if the measuring instrument is treated as one of a batch under the national instrument test procedures—a verifier is satisfied that measuring instruments of that batch comply with the requirements for verification set out in section 18GK when tested in accordance with those procedures and the measuring instrument is marked with a verification mark; and

   2. (b)

      if the instrument is of a class for which a re‑verification period is prescribed—the period since it was last verified or re‑verified does not exceed that re‑verification period.

2. (2)

   The Minister may, by legislative instrument, determine the national instrument test procedures.

3. (3)

   A re‑verification period must not be prescribed for utility meters.

4. (4)

   The regulations may:

   1. (a)

      prescribe circumstances in which a measuring instrument that is treated as one of a batch under the national instrument test procedures may be marked with a verification mark by a person other than the verifier; and

   2. (b)

      provide for the provision of labour, facilities and equipment for the purposes of batch testing measuring instruments; and

   3. (c)

      prescribe circumstances in which a measuring instrument is taken to be marked with a verification mark.

18GHWho is permitted to verify measuring instruments other than utility meters?

1. (1)

   Subject to the limitations in this section, each of the following persons is permitted to verify a measuring instrument other than a utility meter:

   1. (a)

      a trade measurement inspector;

   2. (b)

      a servicing licensee;

   3. (c)

      an employee of a servicing licensee.

   Note 1: Trade measurement inspectors are appointed under Part IX.

   Note 2: Servicing licensees are granted servicing licences under Part X.

2. (2)

   A trade measurement inspector of a particular class may verify any measuring instrument that an inspector of that class is authorised to verify.

3. (3)

   A servicing licensee may personally verify a measuring instrument if:

   1. (a)

      the measuring instrument is of a class of measuring instruments that the licensee is licensed to verify; and

   2. (b)

      the licensee is competent to verify the measuring instrument.

4. (4)

   An employee of a servicing licensee may verify a measuring instrument if:

   1. (a)

      the measuring instrument is of a class of measuring instruments that the licensee is licensed to verify; and

   2. (b)

      the employee is competent to verify the measuring instrument.

18GIWho is permitted to verify utility meters?

A utility meter verifier may verify a utility meter.

Note: Utility meter verifiers are appointed under Part XIII.

18GJRegister of verification marks

The Secretary must keep a register of prescribed particulars relating to verification marks.

18GKRequirements for verification

The requirements for verification of a measuring instrument are:

1. (a)

   the measuring instrument must operate within the appropriate limits of error that are permitted under the regulations; and

2. (b)

   the measuring instrument must be of an approved pattern.

18GLStandards of measurements to be used for verification

1. (1)

   The determination of whether the requirements for verification under section 18GK have been complied with must be made as required by section 10.

2. (2)

   Subsection (1) does not apply if there is not an appropriate standard of measurement in respect of which the measuring instrument is to be verified.

18GMUsing a verification mark when not permitted to do so

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person marks a measuring instrument with a verification mark; and

   2. (b)

      the person is not permitted to do so.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person marks a measuring instrument with a verification mark; and

   2. (b)

      the person is not permitted to do so.

   Penalty: 40 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18GNSale or supply of measuring instrument marked by someone not permitted to do so

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells or otherwise supplies a measuring instrument for use for trade, or uses a measuring instrument for trade; and

   2. (b)

      the measuring instrument is marked with a verification mark; and

   3. (c)

      the person who marked the measuring instrument with the verification mark was not permitted to do so.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person sells or otherwise supplies a measuring instrument for use for trade, or uses a measuring instrument for trade; and

   2. (b)

      the measuring instrument is marked with a verification mark; and

   3. (c)

      the person who marked the measuring instrument with the verification mark was not permitted to do so.

   Penalty: 40 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18GOMisleading marks

Offence requiring fault element—marking a measuring instrument with a misleading mark

1. (1)

   A person commits an offence if:

   1. (a)

      the person marks a measuring instrument; and

   2. (b)

      the mark is not a verification mark but is likely to give the impression that it is a verification mark.

   Penalty: 200 penalty units.

Strict liability offence—marking a measuring instrument with a misleading mark

1. (2)

   A person commits an offence if:

   1. (a)

      the person marks a measuring instrument; and

   2. (b)

      the mark is not a verification mark but is likely to give the impression that it is a verification mark.

   Penalty: 40 penalty units.

Offence requiring fault element—using, selling or supplying a measuring instrument misleadingly marked

1. (3)

   A person commits an offence if:

   1. (a)

      the person:

      1. (i)

         uses a measuring instrument for trade; or

      2. (ii)

         sells or otherwise supplies a measuring instrument for use for trade; and

   2. (b)

      the measuring instrument is marked; and

   3. (c)

      the mark is not a verification mark but is likely to give the impression that it is a verification mark.

   Penalty: 200 penalty units.

Strict liability offence—using, selling or supplying a measuring instrument misleadingly marked

1. (4)

   A person commits an offence if:

   1. (a)

      the person:

      1. (i)

         uses a measuring instrument for trade; or

      2. (ii)

         sells or otherwise supplies a measuring instrument for use for trade; and

   2. (b)

      the measuring instrument is marked; and

   3. (c)

      the mark is not a verification mark but is likely to give the impression that it is a verification mark.

   Penalty: 40 penalty units.

Offence requiring fault element—possessing instrument for making misleading mark

1. (5)

   A person commits an offence if:

   1. (a)

      the person has an instrument or other thing in his or her possession; and

   2. (b)

      the instrument or thing is designed for making a mark on a measuring instrument that is not a verification mark but is likely to give the impression that it is a verification mark.

   Penalty: 200 penalty units.

Strict liability offence—possessing instrument for making misleading mark

1. (6)

   A person commits an offence if:

   1. (a)

      the person has an instrument or other thing in his or her possession; and

   2. (b)

      the instrument or thing is designed for making a mark on a measuring instrument that is not a verification mark but is likely to give the impression that it is a verification mark.

   Penalty: 40 penalty units.

2. (7)

   Subsections (2), (4) and (6) are offences of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18GPWrongful possession of an instrument for making a verification mark

A person commits an offence if:

1. (a)

   the person has an instrument or other thing in his or her possession; and

2. (b)

   the instrument or thing is designed for marking a measuring instrument with a verification mark; and

3. (c)

   the person is not permitted to mark a measuring instrument with that verification mark.

Penalty: 200 penalty units.

18GQObligation on repair of measuring instrument

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person uses a measuring instrument for trade; and

   2. (b)

      the person adjusts or repairs the measuring instrument, or causes the measuring instrument to be adjusted or repaired; and

   3. (c)

      in adjusting or repairing the measuring instrument, the metrological performance of the measuring instrument is affected; and

   4. (d)

      if the person causes the measuring instrument to be adjusted or repaired—the adjustment or repair of the measuring instrument is not performed by a servicing licensee or an employee of a servicing licensee or, in the case of a utility meter, by a utility meter verifier; and

   5. (e)

      the person does not obliterate, or cause to be obliterated, any verification mark that the measuring instrument bears.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person uses a measuring instrument for trade; and

   2. (b)

      the person adjusts or repairs the measuring instrument, or causes the measuring instrument to be adjusted or repaired; and

   3. (c)

      in adjusting or repairing the measuring instrument, the metrological performance of the measuring instrument is affected; and

   4. (d)

      if the person causes the measuring instrument to be adjusted or repaired—the adjustment or repair of the measuring instrument is not performed by a servicing licensee or an employee of a servicing licensee or, in the case of a utility meter, by a utility meter verifier; and

   5. (e)

      the person does not obliterate, or cause to be obliterated, any verification mark that the measuring instrument bears.

   Penalty: 40 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

Defence

1. (4)

   Subsections (1) and (2) do not apply if the effect on the measuring instrument can be corrected by normal operational adjustment of the measuring instrument.

   Note: A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code.

Part V—General provisions on using measurement in trade

18HOverview

Overview of Part

(1) This Part regulates the use of measurement in trade generally.

(2) This Part deals with:

1. (a)

   articles that must be sold by measurement (sections 18HB and 18HC); and

2. (b)

   the units of measurement that must be used for certain transactions (section 18HD); and

3. (c)

   the scale intervals of measuring instruments used for certain articles (section 18HE); and

4. (d)

   unreliable methods of measurement (section 18HF); and

5. (e)

   the use of certain measuring instruments (section 18HG); and

6. (f)

   measuring instruments and methods of measurement used in monitoring compliance with this Act (section 18HH).

(3) All trade measurement is to be a net measurement (section 18HI).

18HAWhen is an article packed in advance ready for sale?

An article is packed in advance ready for sale once the article is packed in the package in which it will be sold, regardless of whether the package is marked with a measurement or a representation (including a statement as to price) by which the measurement of the article can be worked out.

18HBCertain articles must be sold by measurement—articles packed in advance ready for sale

Offence requiring fault element—seller

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells an article that is packed in advance ready for sale; and

   2. (b)

      the packed article is of a class that, by regulation, must be sold by measurement; and

   3. (c)

      either:

      1. (i)

         the package in which the article is sold is marked with a price that is not determined by measurement; or

      2. (ii)

         there is a marking on or near the receptacle in which the packed article is contained that is marked with a price that is not determined by measurement.

   Penalty: 100 penalty units.

Strict liability offence—seller

1. (2)

   A person commits an offence if:

   1. (a)

      the person sells an article that is packed in advance ready for sale; and

   2. (b)

      the packed article is of a class that, by regulation, must be sold by measurement; and

   3. (c)

      either:

      1. (i)

         the package in which the article is sold is marked with a price that is not determined by measurement; or

      2. (ii)

         there is a marking on or near the receptacle in which the packed article is contained that is marked with a price that is not determined by measurement.

   Penalty: 20 penalty units.

Offence requiring fault element—possession, offer or exposure for sale

1. (3)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the article is of a class that, by regulation, must be sold by measurement; and

   4. (d)

      either:

      1. (i)

         the package in which the article is sold is marked with a price that is not determined by measurement; or

      2. (ii)

         there is a marking on or near the receptacle in which the packed article is contained that is marked with a price that is not determined by measurement.

   Penalty: 100 penalty units.

Strict liability offence—possession, offer or exposure for sale

1. (4)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the article is of a class that, by regulation, must be sold by measurement; and

   4. (d)

      either:

      1. (i)

         the package in which the article is sold is marked with a price that is not determined by measurement; or

      2. (ii)

         there is a marking on or near the receptacle in which the packed article is contained that is marked with a price that is not determined by measurement.

   Penalty: 20 penalty units.

2. (5)

   Subsections (2) and (4) are offences of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (6)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1), (2), (3) and (4).

18HCCertain articles must be sold by measurement—other articles

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells an article that is not packed in advance ready for sale; and

   2. (b)

      the article is of a class that, by regulation, must be sold by measurement; and

   3. (c)

      the price of the article is not determined by measurement.

   Penalty: 100 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person sells an article that is not packed in advance ready for sale; and

   2. (b)

      the article is of a class that, by regulation, must be sold by measurement; and

   3. (c)

      the price of the article is not determined by measurement.

   Penalty: 20 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18HDTransactions based on measurement to be in prescribed units of measurement

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells an article (whether packed in advance ready for sale or otherwise) or a utility for a price determined by reference to measurement of the article; and

   2. (b)

      a unit of measurement is prescribed by the regulations for that article or utility, or articles or utilities of that class, for the purposes of this paragraph; and

   3. (c)

      the price is not a price determined by reference to a measurement of the article or utility in that unit of measurement.

   Penalty: 40 penalty units.

2. (2)

   Subsection (1) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (3)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to an offence against subsection (1).

18HEMeasuring instruments used in transactions to have prescribed scale intervals

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells an article (whether packed in advance ready for sale or otherwise) or a utility for a price determined by reference to measurement of the article; and

   2. (b)

      the regulations prescribe scale intervals for measuring instruments used in the measurement of the article or utility, or articles or utilities of that class; and

   3. (c)

      the price is not a price determined by reference to a measurement of the article or utility using a measuring instrument of those scale intervals.

   Penalty: 40 penalty units.

2. (2)

   Subsection (1) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (3)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to an offence against subsection (1).

18HFUnreliable methods of measurement

1. (1)

   The regulations may prescribe unreliable methods of measurement of an article or utility or a class of articles or utilities.

2. (2)

   If the regulations make provision under subsection (1):

   1. (a)

      the unreliable method of measurement must not be used in working out the amount of any tax (however described) payable by reference to measurement of the article or utility or an article or utility of that class; and

   2. (b)

      no contract, dealing or other transaction is to be made or entered into that requires the unreliable method of measurement to be used in measuring the article or utility or an article or utility of that class for the purpose of determining the consideration under that contract, dealing or transaction; and

   3. (c)

      to the extent that a contract is entered into requiring the unreliable method to be used for that purpose, the contract is null and void.

18HGLimiting use of certain measuring instruments

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      a measuring instrument is of a class that, by regulation, must only be used for prescribed purposes; and

   2. (b)

      the person uses the measuring instrument for trade for another purpose.

   Penalty: 100 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      a measuring instrument is of a class that, by regulation, must only be used for prescribed purposes; and

   2. (b)

      the person uses the measuring instrument for trade for another purpose.

1. Penalty: 20 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18HHMeasuring instruments and methods of measurement used in monitoring compliance with the Act

1. (1)

   The regulations may prescribe:

   1. (a)

      measuring instruments, or classes of measuring instruments, to be used by trade measurement inspectors in the measurement of an article or utility, or a class of articles or utilities, for the purpose of monitoring compliance with this Act; and

   2. (b)

      the methods of measurement of an article or utility, or a class of articles or utilities, to be used by trade measurement inspectors in monitoring compliance with this Act.

2. (2)

   All courts, judges and persons acting judicially must presume that:

   1. (a)

      a measuring instrument or a class of measuring instruments prescribed for an article or utility, or a class of articles or utilities, will, if used correctly, produce an accurate measurement of the article or utility, or articles or utilities of that class; and

   2. (b)

      the use of the method of measurement prescribed for an article or utility, or a class of articles or utilities, will produce an accurate measurement of the article or utility, or articles or utilities of that class.

18HIArticles sold by measurement to be sold by net measurement

Offence requiring fault element—sellers

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells an article (whether packed in advance ready for sale or otherwise) for a price determined by reference to measurement of the article; and

   2. (b)

      the price is not determined by reference to the net measurement of the article when sold or, if an alternative time is prescribed in relation to the article, or articles of that class, at that alternative time.

   Penalty: 100 penalty units.

Strict liability offence—sellers

1. (2)

   A person commits an offence if:

   1. (a)

      the person sells an article (whether packed in advance ready for sale or otherwise) for a price determined by reference to measurement of the article; and

   2. (b)

      the price is not determined by reference to the net measurement of the article when sold or, if an alternative time is prescribed in relation to the article, or articles of that class, at that alternative time.

   Penalty: 20 penalty units.

Offence requiring fault element—possession, offer or exposure for sale

1. (3)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale, at a particular time (whether packed in advance ready for sale or otherwise) for a price determined by reference to measurement of the article; and

   2. (b)

      the price is not determined by reference to the net measurement of the article at that time or, if an alternative time is prescribed in relation to the article, or articles of that class, at that alternative time.

   Penalty: 100 penalty units.

Strict liability offence—possession, offer or exposure for sale

1. (4)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale, at a particular time (whether packed in advance ready for sale or otherwise) for a price determined by reference to measurement of the article; and

   2. (b)

      the price is not determined by reference to the net measurement of the article at that time or, if an alternative time is prescribed in relation to the article, or articles of that class, at that alternative time.

   Penalty: 20 penalty units.

2. (5)

   Subsections (2) and (4) are offences of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (6)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1), (2), (3) and (4).

Part VI—Articles packed in advance ready for sale

Division 1—Overview of Part

18JOverview

Overview of Part

(1) This Part sets out the requirements for articles that are packed in advance ready for sale.

(2) If an article is packed in advance ready for sale, the package must be marked with certain information such as the name and address of the packer. The use of certain prescribed expressions in relation to measurement on the package is prohibited (see Division 2).

(3) It is an offence to pack, import or sell or possess, offer or expose for sale a package that contains less than the measurement represented. There are different methods for determining whether there is a shortfall. Division 3 deals with one of these methods, the Average Quantity System. Division 4 deals with cases where the existence of a shortfall is determined using other methods.

(4) A permit may be obtained under Division 5 to import or sell or possess, offer or expose for sale certain articles that have been packed in advance ready for sale and that would otherwise breach Division 2.

Division 2—Marking packed articles

Subdivision 2‑A—Required package information

18JAPackage must be marked with required package information—packer

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person packs an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which one or more of the following kinds of information is prescribed:

      1. (i)

         the name and address of the person who packed the article or on whose behalf the article was packed;

      2. (ii)

         the measurement of the article;

      3. (iii)

         any other information prescribed for the purposes of this subparagraph; and

   4. (d)

      the person does not mark the package with that information.

   Penalty: 100 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person packs an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which one or more of the following kinds of information is prescribed:

      1. (i)

         the name and address of the person who packed the article or on whose behalf the article was packed;

      2. (ii)

         the measurement of the article;

      3. (iii)

         any other information prescribed for the purposes of this subparagraph; and

   4. (d)

      the person does not mark the package with that information.

   Penalty: 20 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Subsections (1) and (2) do not apply as a result of subparagraph (1)(c)(i) or (2)(c)(i) if the person knows that the article is to be sold on the premises on which it was packed for the consumption or use of the purchaser.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.

4. (5)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

18JBPackage must be marked with required package information—importer

1. (1)

   A person commits an offence if:

   1. (a)

      the person imports into Australia an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which one or more of the following kinds of information is prescribed:

      1. (i)

         the name and address of the person who packed the article or on whose behalf the article was packed;

      2. (ii)

         the measurement of the article;

      3. (iii)

         any other information prescribed for the purposes of this subparagraph; and

   4. (d)

      the package is not marked with that information (whether before the article is imported, or by the person after the article is imported).

   Penalty: 100 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person imports into Australia an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which one or more of the following kinds of information is prescribed:

      1. (i)

         the name and address of the person who packed the article or on whose behalf the article was packed;

      2. (ii)

         the measurement of the article;

      3. (iii)

         any other information prescribed for the purposes of this subparagraph; and

   4. (d)

      the package is not marked with that information (whether before the article is imported, or by the person after the article is imported).

   Penalty: 20 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.

18JCPackage must be marked with required package information—seller

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which one or more of the following kinds of information is prescribed:

      1. (i)

         the name and address of the person who packed the article or on whose behalf the article was packed;

      2. (ii)

         the measurement of the article;

      3. (iii)

         the price of the article;

      4. (iv)

         any other information prescribed for the purposes of this subparagraph; and

   4. (d)

      the package is not marked with that information.

   Penalty: 100 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person sells an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which one or more of the following kinds of information is prescribed:

      1. (i)

         the name and address of the person who packed the article or on whose behalf the article was packed;

      2. (ii)

         the measurement of the article;

      3. (iii)

         the price of the article;

      4. (iv)

         any other information prescribed for the purposes of this subparagraph; and

   4. (d)

      the package is not marked with that information.

   Penalty: 20 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.

4. (5)

   Subsections (1) and (2) do not apply as a result of subparagraph (1)(c)(i) or (2)(c)(i) if:

   1. (a)

      the article is sold on the premises on which it was packed for the consumption or use of the purchaser; or

   2. (b)

      the article was packed outside Australia.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (5), see subsection 13.3(3) of the Criminal Code.

5. (6)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

18JDPackage must be marked with required package information—possession, offer or exposure for sale

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which one or more of the following kinds of information is prescribed:

      1. (i)

         the name and address of the person who packed the article or on whose behalf the article was packed;

      2. (ii)

         the measurement of the article;

      3. (iii)

         the price of the article;

      4. (iv)

         any other information prescribed for the purposes of this subparagraph; and

   4. (d)

      the package is not marked with that information.

   Penalty: 100 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which one or more of the following kinds of information is prescribed:

      1. (i)

         the name and address of the person who packed the article or on whose behalf the article was packed;

      2. (ii)

         the measurement of the article;

      3. (iii)

         the price of the article;

      4. (iv)

         any other information prescribed for the purposes of this subparagraph; and

   4. (d)

      the package is not marked with that information.

   Penalty: 20 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.

4. (5)

   Subsections (1) and (2) do not apply as a result of subparagraph (1)(c)(i) or (2)(c)(i) if:

   1. (a)

      the article is to be sold on the premises on which it was packed for the consumption or use of the purchaser; or

   2. (b)

      the article was packed outside Australia.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (5), see subsection 13.3(3) of the Criminal Code.

5. (6)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

18JEPackage must be marked in prescribed manner

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person would commit an offence under section 18JA, 18JB, 18JC or 18JD unless the person marked a package with information; and

   2. (b)

      the manner in which that information is to be marked on the package is prescribed by the regulations; and

   3. (c)

      the person does not mark the package in that manner.

   Penalty: 100 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person would commit an offence under section 18JA, 18JB, 18JC or 18JD unless the person marked a package with information; and

   2. (b)

      the manner in which that information is to be marked on the package is prescribed by the regulations; and

   3. (c)

      the person does not mark the package in that manner.

   Penalty: 20 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.

Subdivision 2‑B—Prohibited expressions

18JFUsing prohibited expressions—packer

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person packs an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and

   4. (d)

      the person marks the package with the prohibited expression.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person packs an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and

   4. (d)

      the person marks the package with the prohibited expression.

   Penalty: 40 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

18JGUsing prohibited expressions—seller

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and

   4. (d)

      the package is marked with the prohibited expression.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person sells an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and

   4. (d)

      the package is marked with the prohibited expression.

   Penalty: 40 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.

4. (5)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

18JHUsing prohibited expressions—possession, offer or exposure for sale

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and

   4. (d)

      the package is marked with the prohibited expression.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and

   4. (d)

      the package is marked with the prohibited expression.

   Penalty: 40 penalty units.

2. (3)

   Subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX.

   Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.

4. (5)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

Division 3—Average Quantity System for packed articles

Subdivision 3‑A—Preliminary

18JIOverview of Division

Overview of Division

(1) If an article is packed in advance ready for sale, the package may be marked with an AQS mark.

(2) AQS stands for Average Quantity System. It is an internationally recognised system for sampling and testing groups of packages to determine whether, on average, they contain the quantities with which they are marked.

(3) 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.

(4) This Division contains offences to deal with cases where this is not so (see Subdivision 3‑C).

(5) This Division also contains offences to deal with cases where misleading marks are used, or an AQS mark is placed in the wrong place (see Subdivision 3‑B).

Subdivision 3‑B—AQS marks

18JJWhat is an AQS mark?

An AQS mark is a mark prescribed by the regulations as an AQS mark.

18JKAQS mark must be used in accordance with regulations

1. (1)

   The regulations may prescribe where an AQS mark is to be marked.

Offence requiring fault element

1. (2)

   A person commits an offence if:

   1. (a)

      the person marks an AQS mark on a package; and

   2. (b)

      the marking is done otherwise than in accordance with the regulations.

   Penalty: 100 penalty units.

Strict liability offence

1. (3)

   A person commits an offence if:

   1. (a)

      the person marks an AQS mark on a package; and

   2. (b)

      the marking is done otherwise than in accordance with the regulations.

   Penalty: 20 penalty units.

2. (4)

   Subsection (3) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

18JLUsing misleading marks

Offence requiring fault element—packer

1. (1)

   A person commits an offence if the person:

   1. (a)

      packs an article in advance ready for sale; and

   2. (b)

      marks the article with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark.

1. Penalty: 200 penalty units.

Strict liability offence—packer

1. (2)

   A person commits an offence if the person:

   1. (a)

      packs an article in advance ready for sale; and

   2. (b)

      marks the article with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark.

   Penalty: 40 penalty units.

Offence requiring fault element—possession, offer or exposure for sale

1. (3)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the article is marked with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark.

   Penalty: 200 penalty units.

Strict liability offence—possession, offer or exposure for sale

1. (4)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the article is marked with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark.

   Penalty: 40 penalty units.

Offence requiring fault element—seller

1. (5)

   A person commits an offence if:

   1. (a)

      the person sells an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the article is marked with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark.

   Penalty: 200 penalty units.

Strict liability offence—seller

1. (6)

   A person commits an offence if:

   1. (a)

      the person sells an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the article is marked with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark.

   Penalty: 40 penalty units.

2. (7)

   Subsections (2), (4) and (6) are offences of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

Subdivision 3‑C—Shortfall

18JMShortfall offence—packer

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person packs an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the package is marked with an AQS mark; and

   4. (d)

      the person:

      1. (i)

         marks the package with a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         marks the package with a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; or

      3. (iii)

         otherwise, by any document or statement, represents the measurement or minimum measurement of the article contained in the package, or makes a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      the package is one of a group of packages of the same kind that, once packed, are on the same premises or in the same vehicle; and

   6. (f)

      the number of packages in the group equals or exceeds the AQS threshold; and

   7. (g)

      a sample of the group, selected in accordance with AQS sampling procedures, fails testing in accordance with AQS test procedures.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person packs an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the package is marked with an AQS mark; and

   4. (d)

      the person:

      1. (i)

         marks the package with a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         marks the package with a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; or

      3. (iii)

         otherwise, by any document or statement, represents the measurement or minimum measurement of the article contained in the package, or makes a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      the package is one of a group of packages of the same kind that, once packed, are on the same premises or in the same vehicle; and

   6. (f)

      the number of packages in the group equals or exceeds the AQS threshold; and

   7. (g)

      a sample of the group, selected in accordance with AQS sampling procedures, fails testing in accordance with AQS test procedures.

   Penalty: 40 penalty units.

2. (3)

   Subject to subsection (4), subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and (2)(f).

   Note: For absolute liability, see section 6.2 of the Criminal Code.

4. (5)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

18JNShortfall offence—importer

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person imports into Australia an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is marked with an AQS mark; and

   4. (d)

      one of the following circumstances exist:

      1. (i)

         the package is marked with a measurement or minimum measurement of the article contained in the package;

      2. (ii)

         the package is marked with a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out;

      3. (iii)

         a representation is otherwise made, by any document or statement, about the measurement or minimum measurement of the article contained in the package;

      4. (iv)

         a representation is otherwise made (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      the package is one of a group of packages of the same kind that, once imported, are on the same premises or in the same vehicle; and

   6. (f)

      the number of packages in the group equals or exceeds the AQS threshold; and

   7. (g)

      a sample of the group, selected in accordance with AQS sampling procedures, fails testing in accordance with AQS test procedures.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person imports into Australia an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is marked with an AQS mark; and

   4. (d)

      one of the following circumstances exist:

      1. (i)

         the package is marked with a measurement or minimum measurement of the article contained in the package;

      2. (ii)

         the package is marked with a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out;

      3. (iii)

         a representation is otherwise made, by any document or statement, about the measurement or minimum measurement of the article contained in the package;

      4. (iv)

         a representation is otherwise made (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      the package is one of a group of packages of the same kind that, once imported, are on the same premises or in the same vehicle; and

   6. (f)

      the number of packages in the group equals or exceeds the AQS threshold; and

   7. (g)

      a sample of the group, selected in accordance with AQS sampling procedures, fails testing in accordance with AQS test procedures.

   Penalty: 40 penalty units.

2. (3)

   Subject to subsection (4), subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and (2)(f).

   Note: For absolute liability, see section 6.2 of the Criminal Code.

18JOShortfall offence—possession, offer or exposure for sale

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is marked with an AQS mark; and

   4. (d)

      the package is marked with:

      1. (i)

         a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      the package is one of a group of packages of the same kind that, at the time of possession, offer or exposure, are on the same premises or in the same vehicle; and

   6. (f)

      the number of packages in the group equals or exceeds the AQS threshold; and

   7. (g)

      a sample of the group, selected in accordance with AQS sampling procedures, fails testing in accordance with AQS test procedures.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is marked with an AQS mark; and

   4. (d)

      the package is marked with:

      1. (i)

         a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      the package is one of a group of packages of the same kind that, at the time of possession, offer or exposure, are on the same premises or in the same vehicle; and

   6. (f)

      the number of packages in the group equals or exceeds the AQS threshold; and

   7. (g)

      a sample of the group, selected in accordance with AQS sampling procedures, fails testing in accordance with AQS test procedures.

   Penalty: 40 penalty units.

2. (3)

   Subject to subsection (4), subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and (2)(f).

   Note: For absolute liability, see section 6.2 of the Criminal Code.

4. (5)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

18JPShortfall offence—sale

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person sells an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is marked with an AQS mark; and

   4. (d)

      the package is marked with:

      1. (i)

         a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      the package is one of a group of packages of the same kind that, at the time of sale, are on the same premises or in the same vehicle; and

   6. (f)

      the number of packages in the group equals or exceeds the AQS threshold; and

   7. (g)

      a sample of the group, selected in accordance with AQS sampling procedures, fails testing in accordance with AQS test procedures.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person sells an article; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is marked with an AQS mark; and

   4. (d)

      the package is marked with:

      1. (i)

         a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      the package is one of a group of packages of the same kind that, at the time of sale, are on the same premises or in the same vehicle; and

   6. (f)

      the number of packages in the group equals or exceeds the AQS threshold; and

   7. (g)

      a sample of the group, selected in accordance with AQS sampling procedures, fails testing in accordance with AQS test procedures.

   Penalty: 40 penalty units.

2. (3)

   Subject to subsection (4), subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and (2)(f).

   Note: For absolute liability, see section 6.2 of the Criminal Code.

4. (5)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

Division 4—Packed articles not marked with AQS mark

Subdivision 4‑A—Overview of Division

18JQOverview

Overview of Division

(1) If an article that has been packed in advance ready for sale is not marked with an AQS mark, the existence of a shortfall is determined using a nationally recognised system of sampling and testing groups of packages.

(2) If the group of packages is too small to allow meaningful testing in this way national single article test procedures are used.

(3) This Division contains a series of shortfall offences based on these procedures for determining whether there is a shortfall.

Subdivision 4‑B—Shortfall offences

18JRWhen is there a shortfall in the measurement of a packed article?

There is a shortfall in the measurement of an article that has been packed in advance ready for sale and that is not marked with an AQS mark if:

1. (a)

   all of the following conditions are met:

   1. (i)

      the package is one of a group of packages of the same kind that are on the same premises or in the same vehicle;

   2. (ii)

      the number of packages in the group equals or exceeds the national test threshold;

   3. (iii)

      a sample of the group, selected in accordance with national sampling procedures, is tested in accordance with national group test procedures and the sample fails; or

2. (b)

   the package is tested in accordance with national single article test procedures and the package fails.

18JSShortfall offence—packer

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person packs an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the package is not marked with an AQS mark; and

   4. (d)

      the person:

      1. (i)

         marks the package with a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         marks the package with a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; or

      3. (iii)

         otherwise, by any document or statement, represents the measurement or minimum measurement of the article contained in the package, or makes a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      there is a shortfall in the measurement of the article contained in the package.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person packs an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the package is not marked with an AQS mark; and

   4. (d)

      the person:

      1. (i)

         marks the package with a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         marks the package with a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; or

      3. (iii)

         otherwise, by any document or statement, represents the measurement or minimum measurement of the article contained in the package, or makes a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      there is a shortfall in the measurement of the article contained in the package.

   Penalty: 40 penalty units.

2. (3)

   Subject to subsection (4), subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Absolute liability applies to subparagraphs (a)(i) and (ii) of the definition of shortfall in section 18JR as applied for the purposes of paragraphs (1)(e) and (2)(e).

   Note: For absolute liability, see section 6.2 of the Criminal Code.

4. (5)

   Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2).

18JTShortfall offence—importer

Offence requiring fault element

1. (1)

   A person commits an offence if:

   1. (a)

      the person imports into Australia an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the package is not marked with an AQS mark; and

   4. (d)

      one of the following circumstances exist:

      1. (i)

         the package is marked with a measurement or minimum measurement of the article contained in the package;

      2. (ii)

         the package is marked with a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out;

      3. (iii)

         a representation is otherwise made, by any document or statement, about the measurement or minimum measurement of the article contained in the package;

      4. (iv)

         a representation is otherwise made (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      there is a shortfall in the measurement of the article contained in the package.

   Penalty: 200 penalty units.

Strict liability offence

1. (2)

   A person commits an offence if:

   1. (a)

      the person imports into Australia an article; and

   2. (b)

      the article is packed in advance ready for sale; and

   3. (c)

      the package is not marked with an AQS mark; and

   4. (d)

      one of the following circumstances exist:

      1. (i)

         the package is marked with a measurement or minimum measurement of the article contained in the package;

      2. (ii)

         the package is marked with a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out;

      3. (iii)

         a representation is otherwise made, by any document or statement, about the measurement or minimum measurement of the article contained in the package;

      4. (iv)

         a representation is otherwise made (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      there is a shortfall in the measurement of the article contained in the package.

   Penalty: 40 penalty units.

2. (3)

   Subject to subsection (4), subsection (2) is an offence of strict liability.

   Note: For strict liability, see section 6.1 of the Criminal Code.

3. (4)

   Absolute liability applies to subparagraphs (a)(i) and (ii) of the definition of shortfall in section 18JR as applied for the purposes of paragraphs (1)(e) and (2)(e).

   Note: For absolute liability, see section 6.2 of the Criminal Code.

18JUShortfall offence—possession, offer or exposure for sale

Offence requiring fault element—marking on package

1. (1)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is not marked with an AQS mark; and

   4. (d)

      the package is marked with:

      1. (i)

         a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      there is a shortfall in the measurement of the article contained in the package.

   Penalty: 200 penalty units.

Strict liability offence—marking on package

1. (2)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is not marked with an AQS mark; and

   4. (d)

      the package is marked with:

      1. (i)

         a measurement or minimum measurement of the article contained in the package; or

      2. (ii)

         a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   5. (e)

      there is a shortfall in the measurement of the article contained in the package.

   Penalty: 40 penalty units.

Offence requiring fault element—marking on receptacle containing package

1. (3)

   A person commits an offence if:

   1. (a)

      the person possesses an article for sale, or offers or exposes it for sale; and

   2. (b)

      the article has been packed in advance ready for sale; and

   3. (c)

      the package is not marked with an AQS mark; and

   4. (d)

      the packed article is contained in a receptacle; and

   5. (e)

      either of the following is marked on or near the receptacle:

      1. (i)

         a measurement or minimum measurement of the article contained in the package;

      2. (ii)

         a representation (including a statement as to price) by which the measurement of the article contained in the package can be worked out; and

   6. (f)

      there is a shortfall in the measurement of the article contained in the package.

   Penalty: 200 penalty units.

Strict liability offence—marking on receptacle containing package

1. (b)

   the instrument ceases to be verified at the end of the re‑verification period, unless re‑verified before that day.

(4) If the re‑verification period prescribed under paragraph 18GG(1)(b) would, on the application of paragraph (3)(a) of this item, end before the transition day, the instrument does not cease to be verified under paragraph (3)(b) of this item, but does cease to be verified on the last day of the period of 1 month beginning at the start of the transition day, unless re‑verified before that day.

9

Continued use of existing licensee’s mark

(1) This item applies if:

1. (a)

   a mark (the old mark) has been approved by a licensing authority for use by or on behalf of a person holding a servicing licence under an earlier corresponding law (the licensee) in certifying a measuring instrument under the earlier corresponding law; and

2. (b)

   immediately before the transition day:

   1. (i)

      the approval has not been revoked under the earlier corresponding law; and

   2. (ii)

      the servicing licence has not been cancelled.

(2) For the purposes of the new law, the old mark is taken to be a servicing licensee’s mark approved by the Secretary under paragraph 18NB(4)(a) of the new law for use by or on behalf of the licensee in verifying measuring instruments during the period:

1. (a)

   beginning at the start of the transition day; and

2. (b)

   ending on the earliest of the following:

   1. (i)

      the end of the day that is 12 months after the transition day;

   2. (ii)

      if the licence that the licensee is taken to hold under item 12 of this Schedule is suspended or cancelled under section 18QC of the new law during that period—the start of the day on which the suspension or cancellation takes effect;

   3. (iii)

      the day on which a servicing licensee’s mark is approved for use by the licensee under subitem 12(7).

Part 4Permits

1. 10

   Permits in relation to compulsory product information

(1) This item applies if:

1. (a)

   a permit (the old permit) is issued to a person under an earlier corresponding law authorising the sale (within the meaning of the earlier corresponding law) of an article packed in advance ready for sale; and

2. (b)

   the sale of the article would, but for the old permit, be an offence against a compulsory product information provision; and

3. (c)

   immediately before the transition day, the old permit is still in force.

(2) The old permit has effect under the new law as if it had been issued:

1. (a)

   in relation to the sale of the article (as defined for the purposes of the new law)—under paragraph 18JX(2)(a) of the new law; or

2. (b)

   in relation to the possession of the article for sale, or the offering or exposure of the article for sale—under paragraph 18JX(3)(a) of the new law;

for the period:

1. (c)

   beginning at the start of the transition day; and

2. (d)

   ending on the earlier of:

   1. (i)

      the end of the day on which the old permit would have ceased to have had effect if the earlier corresponding law had not been repealed; and

   2. (ii)

      the end of the day that is 6 months after the transition day.

(3) For the purposes of this item, each of the following is a compulsory product information provision:

1. (a)

   paragraph 28(3)(b) of the Trade Measurement Act 1989 of New South Wales;

2. (b)

   paragraph 28(3)(b) of the Trade Measurement Act 1995 of Victoria;

3. (c)

   paragraph 28(3)(b) of the Trade Measurement Act 1990 of Queensland;

4. (d)

   paragraph 39(3)(b) of the Trade Measurement Act 2006 of Western Australia;

5. (e)

   paragraph 28(3)(b) of the Trade Measurement Act 1993 of South Australia;

6. (f)

   paragraph 28(3)(b) of the Trade Measurement Act 1999 of Tasmania;

7. (g)

   paragraph 28(3)(b) of the Trade Measurement Act 1991 of the Australian Capital Territory;

8. (h)

   paragraph 28(3)(b) of the Trade Measurement Act of the Northern Territory.

11

Permits in relation to prohibited expressions

(1) This item applies if:

1. (a)

   a permit (the old permit) is issued to a person under an earlier corresponding law authorising the sale (within the meaning of the earlier corresponding law) of an article packed in advance ready for sale; and

2. (b)

   the sale of the article would, but for the old permit, be an offence against a prohibited expression provision; and

3. (c)

   immediately before the transition day, the old permit is still in force.

(2) The old permit has effect under the new law as if it had been issued:

1. (a)

   in relation to the sale of the article (as defined for the purposes of the new law)—under paragraph 18JX(2)(b) of the new law; or

2. (b)

   in relation to the possession of the article for sale, or the offering or exposure of the article for sale—under paragraph 18JX(3)(b) of the new law;

for the period:

1. (c)

   beginning at the start of the transition day; and

2. (d)

   ending on the earlier of:

   1. (i)

      the end of the day on which the old permit would have ceased to have had effect if the earlier corresponding law had not been repealed; and

   2. (ii)

      the end of the day that is 6 months after the transition day.

(3) For the purposes of this item, each of the following is a prohibited expression provision:

1. (a)

   section 30 of the Trade Measurement Act 1989 of New South Wales;

2. (b)

   section 30 of the Trade Measurement Act 1995 of Victoria;

3. (c)

   section 30 of the Trade Measurement Act 1990 of Queensland;

4. (d)

   section 41 of the Trade Measurement Act 2006 of Western Australia;

5. (e)

   section 30 of the Trade Measurement Act 1993 of South Australia;

6. (f)

   section 30 of the Trade Measurement Act 1999 of Tasmania;

7. (g)

   section 30 of the Trade Measurement Act 1991 of the Australian Capital Territory;

8. (h)

   section 30 of the Trade Measurement Act of the Northern Territory.

Part 5Servicing licences and public weighbridge licences

1. 12

   Servicing licences and public weighbridge licences continue in force

(1) If a person holds a servicing licence under an earlier corresponding law (an old licence) immediately before the transition day, the old licence has effect on and after the transition day as if it were a servicing licence granted under section 18NB of the new law (a new licence).

(2) If a person holds a public weighbridge licence under an earlier corresponding law (also an old licence) immediately before the transition day, the old licence has effect on and after the transition day as if it were a public weighbridge licence granted under section 18PB of the new law (also a new licence).

(3) Any condition to which an old licence was subject under an earlier corresponding law immediately before the transition day continues in force as a condition of the new licence imposed:

1. (a)

   in the case of a servicing licence—under section 18NG of the new law; or

2. (b)

   in the case of a public weighbridge licence—under section 18PG of the new law.

(4) However, if a condition mentioned in subitem (3) is inconsistent with:

1. (a)

   in the case of a servicing licence—a condition on all servicing licences under section 18NH of the new law; or

2. (b)

   in the case of a public weighbridge licence—a condition on all public weighbridge licences under section 18PH of the new law; or

3. (c)

   any other condition prescribed for the purposes of this paragraph;

the condition mentioned in paragraph (a), (b) or (c) prevails and, to the extent of the inconsistency, the condition mentioned in subitem (3) does not have effect.

(5) Nothing in this item prevents the imposition, variation or revocation of a condition on a new licence under the new law on or after the transition day.

(6) The new licence continues in effect until:

1. (a)

   if the old licence was subject to a periodic licence fee under a periodic licence fee provision—the day on which the next fee was payable; or

2. (b)

   the new licence is cancelled under the new law.

(7) The Secretary must:

1. (a)

   approve a mark for use by the servicing licensee and employee of the servicing licensee when verifying measuring instruments; and

2. (b)

   give the servicing licensee written notice including the details of the mark.

(8) If, immediately before the transition day, the old licence is suspended under an earlier corresponding law, on the transition day the new licence is taken to be suspended under the new law for the period ending on the day on which the suspension of the old licence would have ended under the earlier corresponding law.

(9) For the purposes of this item, each of the following is a periodic licence fee provision:

1. (a)

   section 52 of the Trade Measurement Act 1989 of New South Wales;

2. (b)

   section 52 of the Trade Measurement Act 1995 of Victoria;

3. (c)

   section 52 of the Trade Measurement Act 1990 of Queensland;

4. (d)

   section 64 of the Trade Measurement Act 2006 of Western Australia;

5. (e)

   section 52 of the Trade Measurement Act 1993 of South Australia;

6. (f)

   section 52 of the Trade Measurement Act 1999 of Tasmania;

7. (g)

   section 52 of the Trade Measurement Act 1991 of the Australian Capital Territory;

8. (h)

   section 52 of the Trade Measurement Act of the Northern Territory.

1. 13

   Transitional provision—public weighbridge no longer suitable for use

If:

1. (a)

   a notice has been served, under an earlier corresponding law, on a person who held a public weighbridge licence under that law:

   1. (i)

      stating that an administering authority considers a public weighbridge is no longer suitable for use as a public weighbridge; and

   2. (ii)

      stating that the person may make written representations to the administering authority within a period stating why the person considers the public weighbridge licence for the public weighbridge should not be cancelled; and

2. (b)

   immediately before the transition day the period mentioned in subparagraph (a)(ii) has not expired;

then:

1. (c)

   the notice is taken to be a notice given under 18PP of the new law in relation to the public weighbridge; and

2. (d)

   the person may make written submissions to the Secretary within the period of 14 days beginning at the start of the transition day stating why the person considers the public weighbridge licence that the person is taken to hold under item 12 of this Schedule for the public weighbridge should not be cancelled; and

3. (e)

   after considering any submissions made to the Secretary within that period, the Secretary may make a decision in accordance with section 18PP of the new law.

1. 14

   Orders preventing employment of certain persons

(1) If, immediately before the transition day, an order under an employment prevention order provision is in force (the old order), then on and after the transition day, the old order is taken to be an order under:

1. (a)

   if the old order is a direction as to any of the following—section 18NN of the new law:

   1. (i)

      not to employ a specified person to certify any measuring instrument;

   2. (ii)

      not to employ a specified person to certify a specified class or classes of measuring instruments;

   3. (iii)

      to employ a specified person to do either of the things mentioned in subparagraph (i) or (ii) only in compliance with specified conditions; or

2. (b)

   if the old order is a direction as to any of the following—section 18PQ of the new law:

   1. (i)

      not to employ a specified person to perform duties relating to the operation of any public weighbridge;

   2. (ii)

      not to employ a specified person to perform duties relating to the operation of a specified class or classes of public weighbridges;

   3. (iii)

      to employ a specified person to do either of the things mentioned in subparagraph (i) or (ii) only in compliance with specified conditions.

(2) If the old order is one that, under paragraph (1)(a), is taken to have been made under section 18NN and a copy of the old order has not been served on a person to whom such an order is, under subsection 18NN(3), required to be served, a copy of the old order must be served on that person. However, nothing in this subitem or in subsection 18NN(3) affects the validity of the old order that continues to exist by force of subitem (1).

(3) If the old order is one that, under paragraph (1)(b), is taken to have been made under section 18PQ and a copy of the old order has not been served on a person to whom such an order is, under subsection 18PQ(3), required to be served, a copy of the old order must be served on that person. However, nothing in this subitem or in subsection 18PQ(3) affects the validity of the old order that continues to exist by force of subitem (1).

(4) For the purposes of this item, each of the following is an employment prevention order provision:

1. (a)

   section 55 of the Trade Measurement Act 1989 of New South Wales;

2. (b)

   section 55 of the Trade Measurement Act 1995 of Victoria;

3. (c)

   section 55 of the Trade Measurement Act 1990 of Queensland;

4. (d)

   section 72 of the Trade Measurement Act 2006 of Western Australia;

5. (e)

   section 55 of the Trade Measurement Act 1993 of South Australia;

6. (f)

   section 55 of the Trade Measurement Act 1999 of Tasmania;

7. (g)

   section 55 of the Trade Measurement Act 1991 of the Australian Capital Territory;

8. (h)

   section 55 of the Trade Measurement Act of the Northern Territory.

1. 15

   Proceedings under new law if disciplinary action not yet commenced

If:

1. (a)

   the Secretary reasonably suspects that there existed, before the transition day, grounds for disciplinary action under an earlier corresponding law in relation to a servicing licence or public weighbridge licence held by a person under that law immediately before that day (an old licence); and

2. (b)

   no written notice has been served in accordance with the earlier corresponding law in relation to the grounds before the transition day;

then:

1. (c)

   on and after the transition day, the grounds for disciplinary action in relation to the old licence are taken to be grounds for disciplinary action in relation to the licence that the person is taken to hold under item 12 of this Schedule (the new licence); and

2. (d)

   on or after the transition day, the Secretary may:

   1. (i)

      serve a notice on the person in relation to those grounds under section 18QB of the new law; and

   2. (ii)

      take disciplinary action in relation to the new licence in relation to those grounds in accordance with Part XII of the new law.

1. 16

   Proceedings under earlier corresponding law if disciplinary action commenced

If:

1. (a)

   disciplinary action under an earlier corresponding law has begun in relation to a servicing licence or public weighbridge licence held by a person under that law; and

2. (b)

   immediately before the transition day, the disciplinary action had not ended or been discontinued;

then nothing in this Act affects the continuation or conclusion of the disciplinary action on or after the transition day in accordance with the earlier corresponding law, but:

1. (c)

   to the extent that the disciplinary action to be taken involves:

   1. (i)

      the imposition of a condition on a licence; or

   2. (ii)

      the suspension of a licence; or

   3. (iii)

      the cancellation of a licence;

the disciplinary action is taken in relation to the licence that the person is taken to hold under item 12 of this Schedule; and

1. (d)

   to the extent that the disciplinary action to be taken involves the disqualification, permanently or for a specified period, of the person from holding a licence, the disqualification is in relation to a servicing licence or public weighbridge licence under the new law.

17

Disqualification continues in force

(1) If, immediately before the transition day, a person was, under an earlier corresponding law, permanently disqualified from holding a licence under that law, the person is taken to be permanently disqualified under paragraph 18QC(1)(e) of the new law from holding a servicing licence or public weighbridge licence under that law.

(2) If, immediately before the transition day, a person was, under an earlier corresponding law, disqualified for a specified period from holding a licence under that law, the person is taken to be disqualified under paragraph 18QC(1)(e) of the new law from holding a servicing licence or public weighbridge licence under that law for the period:

1. (a)

   beginning at the start of the transition day; and

2. (b)

   ending at the time at which the disqualification would have ended under the earlier corresponding law.

Part 6Utility meters

1. 18

   Continued recognition of existing verification marks—utility meters

If, immediately before the commencing day, a utility meter is verified under the National Measurement Act 1960, as in force at that time, then on and from the commencing day the utility meter is taken to be verified under the new law.

1. 19

   Continued use of existing verifying authority’s mark—utility meters

(1) This item applies if:

1. (a)

   before the commencing day, a mark (the old mark) has been allocated to a person under Part VA of the National Measurement Act 1960, as in force at the time at which the old mark was allocated; and

2. (b)

   immediately before the commencing day:

   1. (i)

      the allocation has not been revoked under the Act, as in force at that time; and

   2. (ii)

      the appointment of the person as a verifying authority has not been revoked under the Act, as in force at that time.

(2) For the purposes of the new law, the old mark is taken to be a verification mark in relation to utility meters during the period:

1. (a)

   beginning at the start of the commencing day; and

2. (b)

   ending on the earliest of the following:

   1. (i)

      the end of the day that is 12 months after the commencing day;

   2. (ii)

      if the person is, at the start of the commencing day, taken to be a verifier in relation to utility meters under item 20 but the person’s appointment is subsequently revoked under section 18RG of the new law—the start of the day on which the appointment is revoked;

   3. (iii)

      the day on which a verification mark in relation to utility meters is allocated to the verifier under subitem 20(4).

1. 20

   Verifying authorities under old law become verifiers under new law

(1) If, immediately before the commencing day, a person was a verifying authority under the National Measurement Act 1960, as in force at that time (the old law), in relation to a particular class of utility meters, the person is taken to be a verifier in relation to that class of utility meters under the new law at the start of the commencing day as if the person were appointed:

1. (a)

   in the case of a person appointed before the commencing day under section 18ZC of the old law—under section 18RA of the new law; or

2. (b)

   in the case of a person appointed before the commencing day under section 18ZKA of the old law—under section 18RH of the new law.

(2) Any condition to which the appointment under the old law was subject immediately before the commencing day continues in force as if it were made:

1. (a)

   in the case of a person appointed before the commencing day under section 18ZC of the old law—under section 18RA of the new law; or

2. (b)

   in the case of a person appointed before the commencing day under section 18ZKA of the old law—under section 18RH of the new law.

(3) Nothing in this item prevents the imposition, variation or revocation of a condition under the new law on the appointment on or after the commencing day.

(4) The Secretary must allocate to the verifier:

1. (a)

   if the verifier will be personally undertaking verification of utility meters—a mark for use by the verifier; and

2. (b)

   if the verifier will be employing persons to undertake the verification of utility meters—a separate mark for use by each employee.

(5) If, immediately before the commencing day, the person’s appointment as a verifying authority is suspended under the old law, on the commencing day the appointment as verifier is taken to be suspended under the new law for the period ending on the day on which the suspension of appointment under the old law would have ended under that law.

1. 21

   Proceedings under new law if disciplinary action not yet commenced

If:

1. (a)

   the Secretary is of the opinion that, immediately before the commencing day, there may have been grounds for taking disciplinary action under section 18ZJ of the National Measurement Act 1960, as in force immediately before the commencing day (the old law), against a person appointed as a verifying authority under section 18ZC of the old law because the person was in breach of a condition of the person’s appointment; and

2. (b)

   no written notice has been served in accordance with section 18ZG of the old law on the person;

then:

1. (c)

   on and after the commencing day, the grounds for disciplinary action against the person under the old law are taken to be grounds for disciplinary action against the person under section 18RG of the new law; and

2. (d)

   on or after the commencing day, the Secretary may:

   1. (i)

      serve a notice on the person in relation to those grounds under section 18RD of the new law; and

1. 1. (ii)

      take disciplinary action in relation to the person in relation to those grounds in accordance with Division 2 of Part XIII of the new law.

1. 22

   Proceedings under earlier corresponding law if disciplinary action commenced

If:

1. (a)

   disciplinary action has begun against a person appointed as a verifying authority under section 18ZC of the National Measurement Act 1960, as in force immediately before the commencing day (the old law); and

2. (b)

   immediately before the commencing day, the disciplinary action had not ended or been discontinued;

then nothing in this Act affects the continuation or conclusion of the disciplinary action on or after the commencing day in accordance with the old law, but to the extent that the disciplinary action to be taken involves:

1. (c)

   the imposition of a condition on an appointment of the person; or

2. (d)

   the suspension of an appointment of the person; or

3. (e)

   the revocation of an appointment of the person;

the disciplinary action is taken in relation to the appointment of the person as a verifier that is taken to have been made under item 20 of this Schedule.

Part 7Miscellaneous

23

National instrument test procedures

The Uniform Test Procedures for the verification, certification and in‑service inspection of trade measuring instruments published by the National Measurement Institute as in force immediately before the transition day are taken, on and after the transition day, to be the national instrument test procedures for the purposes of section 18GG of the new law until national instrument test procedures are determined under that section.

24

Definition of approved pattern

If:

1. (a)

   a measuring instrument was first verified or certified under an earlier corresponding law before the transition day; and

2. (b)

   approval for a pattern for a measuring instrument was in force under the National Measurement Act 1960, or regulations made under that Act, when it was first verified or certified; and

3. (c)

   the approval has expired or been cancelled (but not withdrawn);

the pattern is taken to be an approved pattern in relation to the measuring instrument for the purposes of that Act.

[Minister’s second reading speech made in—

House of Representatives on 24 September 2008

Senate on 24 November 2008]

(185/08)