Weights and Measures Acts Amendment Act of 1967 (Qld)

540 (1 it eextz1itxtr ANNO SEXTO DECIMO ELIZABETHAE SECUNDAE REGINAE No. 54 of 1967 An Act to Amend " The Weights and Measures Acts, 1951 to 1966 ," in certain particulars [ASSENTED TO 22ND DECEMBER, 1967] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same , as follows:- 1. (1) Short title. This Act may be cited as "The Weights and Measures Acts Amendment Act of 1967." (2) Principal Act. " The Weights and Measures Acts, 1951 to 1966," are in this Act referred to as the Principal Act. (3) Collective title . The Principal Act and this Act may be collectively cited as " The Weights and Measures Acts, 1951 to 1967." 2. Commencement . (1) Except as provided in subsection (2) of this section, this Act shall commence on a date to be fixed by the Governor in Council by Proclamation published in the Gazette.

Weights and Measures Acts Amendment Act of 1967, No. 54 541 (2) Notwithstanding subsection (1) of this section, the Governor in Council may, by the Proclamation under subsection (1) of this section, or by a subsequent Proclamation or Proclamations, fix a date or dates for the commencement of- (a) the several provisions of this Act; and (b) the several provisions of Part VA of the Principal Act, as inserted by section ten of this Act, later than the date fixed by the Proclamation under subsection (1) of this section for the commencement of this Act. 3. Amendment of s. 3. Section three of the Principal Act is amended by inserting after the words and numeral " PART V-SALE OF ARTICLES AND USE OF WEIGHTS AND MEASURES FOR TRADE;" the words and numeral "PART VA-STANDARDISATION AND MARKING OF PRE-PACKED ARTICLES;". 4. Amendments of s. 6 . Section six of the Principal Act is amended by- (a) in subsection (1)- (i) inserting after the definition " Analyst " the following definition:- " Appprroovveedd brand "-A brand approved by the Chief Inspector pursuant to section 431 of this Act;"; (ii) inserting after the definition " Bakehouse " the following definition:- " " Brand "-Includes any mark, device, name, word, letter, numeral, or symbol, or any combination thereof;"; (iii) inserting after the definition " Owner " the following definition:- " Paacckk ", in relation to an article-To:- (a) enclose the article (whether wholly or partly) in or by means of; (b) put the article in; or (c) attach the article to, or wind or wrap the article around, some other article or thing, and " packed " and " packing " have corresponding meanings;"; (iv) omitting the definition " Package " and inserting in its stead the following definition:- ""Package "-Includes anything by means of which any one article is packed for sale, or any two or more articles are packed for sale as a single item, and, in particular and without prejudice to the generality of the foregoing, includes a wrapper and a confining brand;"; and (b) inserting after subsection (2A) the following subsections: " (2B) For the purposes of this Act- (a) an article shall be deemed to be pre-packed if it is packed in advance ready for sale; and (b) on premises where articles of any description are so packed, or are kept or stored for sale after being so packed, any article of that description found on those premises (being an article that is contained in a package) shall be deemed to be pre-packed within the meaning of this Act unless the contrary is proved, and it is not sufficient proof to the contrary to show that the package has not been marked in accordance with the provisions of this Act with respect to the marking of packages containing articles of that description.

542 Weights and Measures Acts Amendment Act of 1967, No. 54 (2c) Except as otherwise prescribed, a reference in this Act to the weight or measure of an article shall be construed as a reference to the weight or measure of the article excluding the weight or measure of the package in which the article is contained. (2D) A reference in this Act to the weight or measure of an article shall, in the case of an article of a kind that is ordinarily packed or sold by number, be construed as a reference to a quantity of that article counted by number. (2E) Where, by or under this Act, any particulars or words are, or any statement or expression is, required, permitted, or forbidden to be marked on a package containing an article, the particulars, words, statement, or expression shall be deemed to be marked on the package if marked on a label attached to the package or to the article. (2F) A reference in this Act (however expressed) to the marking of a package with a statement of the weight or measure of the article contained in the package shall be construed as including a reference to the marking with such a statement of a label attached to the package or to the article. (2G) A reference in this Act (however expressed) to- (a) a package containing an article, or a package in which an article is contained, shall be construed, where appropriate, as including a reference to a package to which an article is attached or around which an article is wound or wrapped; and (b) an article contained in a package, shall be construed, where appropriate, as including a reference to an article that is attached to, wound around, or wrapped around, a package.". 5. Amendments of s. 29 . Section twenty-nine of the Principal Act is amended by- (a) in subsection (2), omitting paragraph (iii) and inserting in its stead the following paragraph:- (iii) which package is not marked as prescribed with a statement specifying that the package contains sliced bread and specifying the weight of the bread contained therein,"; (b) adding to subsection (3A) the following paragraphs- " For the purposes of this subsection the inspector shall select and seize from the packages purporting to be of the same denomination and description found and weighed in accordance with the provisions of subsections (3D) and (3E) of this section, two packages of or most nearly approximating the average weight per package of the packages so weighed. One of the packages so selected and seized and being the package of or most. nearly approximating the average weight per package of the packages so weighed shall be dealt with by the inspector in accordance with the provisions of subsection (3A) of section thirty of this Act. The Inspector shall offer the other package so selected and seized duly sealed, wrapped and marked as prescribed by subsection (3A) of section thirty of this Act to the person who pursuant to this Act is present at the weighing or, where the bread is weighed under the authority of this Act in the absence of any such person, the inspector shall offer that package to some person employed or apparently employed at the place where such bread was made or sold or in connection with the business carried on thereat."; and

Weights and Measures Acts Amendment Act of 1967, No. 54 543 (c) inserting after subsection (3c) the following subsections:- " (3D) Upon a complaint against any person for an offence against subsection (2) of this section for packing for sale or, as the case may be, selling any package of sliced bread which, purporting to be of a denomination hereinbefore specified in this section, is deficient of the weight prescribed therefor, that person shall not be convicted unless the average weight per package of a reasonable number of packages, purporting to be of the same denomination and description, of the packages of sliced bread found at any one and the same time is less than the weight prescribed for packages of such denomination. (3E) For the purposes of subsection (3D) of this section, not less than twenty packages purporting to be of the same denomination and description so found shall be deemed to be a reasonable number, or if twenty packages or more purporting to be of the same denomination and description are not found, then the reasonable number shall be all the packages purporting to be of the same denomination and description so found.". 6. Amendments of s. 29A. Section 29A of the Principal Act is amended by- (a) omitting subsection (1) and inserting in its stead the following subsection:- " (1) Section twenty-nine of this Act does not apply to any package of sliced bread for sale which package is marked as prescribed with a statement as prescribed by paragraph (iii) of subsection (3) of this section, but the said section twenty-nine applies to any package containing sliced bread for sale which package is not so marked notwithstanding that the bread contained therein complies with the standard prescribed for milk bread and that it is of a denomination specified in this section."; (b) in subsection (3)- (i) omitting paragraph (iii) and inserting in its stead the following paragraph:- ( iii) Which package is not marked as prescribed with a statement that includes the words " MILK BREAD " in capital letters of not less than eighteen point face measurement, specifying that the package contains sliced milk bread, and specifying the weight of the milk bread therein,"; and (ii) omitting the final paragraph, being the paragraph commencing with the words " In any proceeding ", and inserting in its stead the following paragraph:- " In any proceeding under or. for the purposes of this subsection in which it is material to prove that a package containing sliced bread is a package of sliced milk bread, evidence that the statement prescribed by paragraph (iii) of this subsection is marked on the package is, until the contrary is proved, sufficient evidence that the package is a package of sliced milk bread."; (c) inserting after subsection (4) the following subsections:- " (4A) Upon a complaint against any person for an offence against subsection (3) of this section for packing for sale or, as the case may be, selling any package of sliced milk bread which, purporting to be of a denomination hereinbefore specified in this section, is deficient of the weight prescribed therefor, that person shall not be convicted unless the

544 Weights and Measures Acts Amendment Act of 1967, No. 54 average weight per package of a reasonable number of packages, purporting to be of the same denomination and description, of the packages of sliced milk bread found at any one and the same time is less than the weight prescribed for packages of such denomination. (4s) For the purposes of subsection (4A) of this section, not less than twenty packages purporting to be of the same denomination and description so found shall be deemed to be a reasonable number, or if twenty packages or more purporting to be of the same denomination and description are not found, then the reasonable number shall be all the packages purporting to be of the same denomination and description so found."; (d) adding to subsection (5) the following paragraphs- " For the purposes of this subsection the inspector shall select and seize from the packages purporting to be of the same denomination and description found and weighed in accordance with the provisions of subsections (4A) and (413) of this section, two packages of or most nearly approximating the average weight per package of the packages so weighed. One of the packages so selected and seized and being the package of or most nearly approximating the average weight per package of the packages so weighed shall be dealt with by the inspector in accordance with the provisions of subsection (3A) of section thirty of this Act. . The inspector shall offer the other package so selected and seized duly sealed, wrapped and marked as prescribed by subsection (3A) of section thirty of this Act to the person who pursuant to this Act is present at the weighing or, where the bread is weighed under the authority of this Act in the absence of any such person, the inspector shall offer that package to some person employed or apparently employed at the place where such bread was made or sold or in connection with the business carried on thereat."; and (e) in subsection (9), omitting the first paragraph, and inserting in its stead the following paragraph:- " A person shall not pack for sale or sell a package of sliced bread, which package is marked with a statement as prescribed by paragraph (iii) of subsection (3) of this section, unless the bread contained in the package conforms to the standard prescribed for milk bread.". 7. Repeal of and new s. 33. Section thirty-three of the Principal Act is repealed and the following section inserted in its stead:- " [33.; Sales by Commonwealth legal units of measurement. (1) Articles of any description that are sold by weight or measure shall be sold by reference to such Commonwealth legal units of measurement as are prescribed by the regulations in relation to articles of that description. (2) All grain, agricultural and vegetable seeds, mill by-products of grain, hay, straw or chaff, and concentrated or prepared stock foods shall be sold by weight and not by measure. (3) Nothing in subsection (2) of this section applies to or with respect to any sale of or lien over growing crops or loads of unthreshed grain. (4) Any person who sells an article contrary to the provisions of this section is guilty of an offence against this Act. (5) Any contract with respect to any article that is sold or agreed to be sold contrary to the provisions of this section is wholly void.":

Weights and Measures Acts Amendment Act of 1967, No. 54 545 8. Repeal of and new s. 34 . Section thirty-four of the Principal Act is repealed and the following section inserted in its stead:- " [34.] Sales by net weight or measure. (1) Except as otherwise prescribed by or under this or any other Act, a person shall not- (a) sell an article by weight or measure otherwise than by net weight or measure; or (b) mark a package containing an article, or cause, permit, or suffer such a package to be marked, with the words " Gross weight " or words to the like effect. (2) A person who sells an article by weight or measure shall, forthwith upon the delivery of the article to the purchaser, deliver or send to the purchaser an invoice or delivery note showing the true net weight or, as the case may be, measure, of the article. (3) Subsection (2) of this section does not apply to or in relation to- (i) an exempted article; (ii) an article weighed or measured before or at the time of sale and in the presence of the purchaser; (iii) a pre-packed article contained in a package marked, in accordance with this Act, with the true net weight or measure of the article; or (iv) a pre-packed article of any description to which section 43G of this Act applies. (4) For the purposes of subsection (3) of this section, an article shall be deemed not to be weighed or measured in the presence of the purchaser unless the instrument by which the article is weighed or measured is so constructed, placed in such a position, and so used as to enable the purchaser to have a clear and unobstructed view of and to see easily- (a) the weight or measure, or indication of the weight or measure, of the article; and (b) the operation of the weighing or measuring of the article. (5) In subsection (3) of this section, " exempted article " means an article of any description that is wholly exempted by the regulations from the operation of subsection (2) of this section. (6) In the case of liquors that are subject to duties of customs or excise, compliance with the requirements of any Commonwealth Act as to measures in relation to those liquors is sufficient compliance with this section.". 9. Repeal of and new s. 35. (1) Section thirty-five of the Principal Act is repealed and the following section inserted in its stead:- " [35.] Incorrect weight or measure . (I) Subject to section 43F of this Act, a person who delivers or sends to a purchaser an invoice or delivery note relating to an article (whether a pre-packed article or not) sold to the purchaser which states as the weight or measure of the article a weight or measure that is greater than the true weight or measure of the article so sold is guilty of an offence against this Act. (2) If a person convicted of an offence against subsection (1) of this section has previously been, convicted of an offence against that subsection, he shall be liable to a penalty not exceeding Four hundred dollars.". 18

546 Weights and Measures Acts Amendment Act of 1967, No. 54 10. Insertion of new Part VA. (1) The Principal Act is amended by inserting after Part V the following Part:- PART VA-STANDARDISATION AND MARKING OF PRE-PACKED ARTICLES [43A.] Exemptions . (1) Nothing in this Part applies to or in relation to- (a) an exempted article; or (b) a package that contains an exempted article only or two or more exempted articles only. (2) Nothing in this Part with respect to the packing of an article for sale or the marking of a package containing an article applies to or in relation to an article that is, otherwise than at the request of the purchaser, weighed or measured before or at the time of sale and in the presence of the purchaser, or to a package containing such an article. (3) For the purposes of subsection (2) of this section, an article shall be deemed not to be weighed or measured in the presence of the purchaser unless the instrument by which the article is weighed or measured is so constructed, placed in such a position, and so used as to enable the purchaser to have a clear and unobstructed view of and to see easily- (a) the weight or measure, or indication of the weight or measure, of the article; and (b) the operation of the weighing or measuring of the article. (4) In subsection (1) of this section, " exempted article " means an article of any description that is wholly exempted by the regulations from the operation of this Part. [43B.] Name , & c., of packer to be marked on packages . (1) A person shall not pack an article for sale, or cause, permit, or suffer an article to be packed for sale, unless the package in which the article is contained is marked, in accordance with the regulations, with- (a) his name and the address of the place where the article was packed, or, if the article was packed for or on behalf of another person (not being the employer of the person who packed the article ), an approved brand ; and (b) if the article was packed for or on behalf of another person (not being the employer of the person who packed the article), the name and address of that other person. (2) Where an article is packed by a person as an employee of another person (in this subsection referred to as " the employer "), the name referred to in paragraph (a) of subsection (1) of this section is the name of the employer. (3) Where an article is packed by or for or on behalf of a corporation, or a person or persons trading under a business name (within the meaning of " The Business Names Acts, 1962 to 1965 ")- (a) the name referred to in paragraph (a) or paragraph (b) of subsection (1) of this section is- (i) in the case of a corporation, the name under which the corporation is incorporated; or (ii) in the case of a person or persons trading under a business name (within the meaning of " The Business Names Acts, 1962 to 1965,"), the business name as registered under those Acts; and

Weights and Measures Acts Amendment Act of 1967, No. 54 547 (b) the address referred to in paragraph (b) of that subsection is- (i) in the case of a corporation, the address of its registered office in the State; or (ii) in the case of a person or persons trading under a business name (within the meaning of " The Business Names Acts, 1962 to 1965,"), the address of the sole or principal place of business of that person or those persons in the State. (4) A person shall not sell a pre-packed article unless the package containing the article is marked as required by subsection (1) of this section. [43C.] Certain articles to be packed and sold only in certain denominations . (1) A person shall not, on or after the appointed day, pack for sale, or cause, permit, or suffer to be packed for sale, an article of any description to which this section applies except in a weight or measure of such denomination as may be prescribed in relation to articles of that description. (2) For the purposes of subsection (1) of this section, the appointed day in relation to articles of any particular description is such day as the Minister may, by order published in the Gazette, declare to be the appointed day in relation to articles of that description. (3) A person shall not, on or after the appointed day, sell a pre-packed article (being an article of any description to which this section applies), if the article is packed otherwise than as required by subsection (1) of this section. (4) If a person convicted of an offence against subsection (1) or subsection (3) of this section has previously been convicted of an offence against this section, he shall be liable to a penalty not exceeding Four hundred dollars. (5) For the purposes of subsection (3) of this section, the appointed day in relation to articles of any particular description is such day as the Minister may, by order published in the Gazette, declare to be the appointed day in relation to articles of that description. (6) Nothing in subsection (3) of this section prohibits the sale, pursuant to a permit under section 43E of this Act, of an article to which the permit relates. (7) An order made by the Minister under this section- (a) may declare different days as the appointed day for the purposes of subsections (1) and (3), respectively, of this section; and (b) may declare different days as the appointed day in relation to articles of different descriptions, but a day so declared shall be a day not earlier than one year after the date of commencement of this section and not earlier than the day on which the order is published in the Gazette. (8) This section applies to articles of such descriptions as may be prescribed. [43D.] Packages to be marked with particulars of the quantity of the articles contained therein . (1) A person shall not, on or after the appointed day, pack for sale, or cause, permit, or suffer to be packed for sale, an

548 Weights and Measures Acts Amendment Act of 1967, No. 54 article of any description to which this section applies unless the package containing the article is marked, in accordance with the regulations, with a statement of the true weight or measure of the article. (2) For the purposes of subsection (1) of this section, the appointed day in relation to articles of any particular description is such day as the Minister may, by order published in the Gazette, declare to be the appointed day in relation to articles of that description. (3) A person shall not, on or after the appointed day, sell a pre-packed article (being an article of any description to which this section applies), unless the package in which the article is contained is marked as required by subsection (1) of this section. (4) If a person convicted of an offence against subsection (1) or subsection (3) of this section has previously been convicted of an offence against this section, he shall be liable to a penalty not exceeding Four hundred dollars. (5) For the purposes of subsection (3) of this section, the appointed day in relation to articles of any particular description is such day as the Minister may, by order published in the Gazette, declare to be the appointed day in relation to articles of that description. (6) Nothing in subsection (3) of this section prohibits the sale, pursuant to a permit under section 43E of this Act, of an article to which the permit relates. (7) An order made by the Minister under this section may declare different days as the appointed day in relation to articles of different descriptions, but a day so declared shall be a day not earlier than one year after the date of commencement of this section and not earlier than the day on which the order is published in the Gazette. (8) This section applies to articles of such descriptions as may be prescribed. [43E.] Permits for sale of articles that do not comply with the prescribed requirements . (1) Where, in relation to any pre-packed articles, there has been a contravention of or failure to comply with any of the provisions of this Act with respect to the packing of the articles or the marking of the packages in which the articles are contained, and the Minister is satisfied that- (a) the articles were, when packed, intended to be exported from Australia and considers that it is just or reasonable that the sale of the articles in the State should be permitted; (b) the articles were packed outside Australia and were brought into the State in such circumstances as, in the opinion of the Minister, render it just and reasonable that the sale of the articles in the State should be permitted; or (c) the articles were packed within Australia and he considers that, having regard to the date when the articles were so packed or to any other relevant circumstances, it is just and reasonable that the sale of the articles in the State should be permitted, the Minister may, on the application of a person, grant to that person a permit authorising the sale of the articles in the State by that person.

Weights and Measures Acts Amendment Act of 1967, No. 54 549 (2) A permit under this section may be granted upon and subject to- (a) such conditions as are specified in the permit with respect to- (i) the number of individual articles the sale of which is authorised by the permit; (ii) the form and manner in which the weight or measure of the articles contained in each package shall be indicated; and (iii) the weight or measure of the articles contained in each package; and (h) such other conditions (if any) as the Minister determines and specifies in the permit. (3) A person who sells an article the sale of which is authorised by a permit under this section to another person for the purposes of resale shall, before or at the time of the sale of the article to that other person, inform that other person in writing of the conditions specified in the permit. (4) A person shall not- (a) sell an article the sale of which is authorised by a permit under this section otherwise than in accordance with the conditions specified in the permit; (b) falsely represent that a permit has been granted under this section or that such a permit has been granted in relation to any particular article; (c) sell any article the sale of which was authorised by a permit under this section at any time after the permit ceases to be in force, whether by reason of its cancellation or of the effluxion of time; or (d) being the holder of a permit under this section, purport to sell pursuant to the permit any greater number of individual articles than the number (if any) of articles to which the permit relates. (5) Unless sooner cancelled pursuant to subsection (6) of this section. a permit under this section continues in force for such period as is specified in that behalf in the permit, but may be renewed by the Minister for such further period or periods as the Minister may think fit. (6) The Minister may, at any time, by notice in writing to th holder of a permit under this section, cancel the permit if the Minister is : atisfied that it is desirable in the public interest so to do. (7) Where a permit under this section is cancelled pursuant to subsection (6) of this section, the holder thereof shall forthwith deliver up the permit to the Chief Inspector. [43F.] Incorrect weight or measure of pre-packed articles. (I) Subject to this section, where the true weight or measure of a pre-packed article is less than the weight or measure of the article marked on the package containing the article the person who packed the article, or who caused, permitted, or suffered the article to be packed, is guilty of an offence against this Act. (2) Subject to this section, a person who- (a) sells a pre-packed article the true weight or measure of which is less than the weight or measure of the article marked on the package containing the article; or

550 Weights and M_ easures Acts Amendment Act of 1967, No. 54 (b) delivers or sends to a purchaser an invoice or delivery note relating to a pre-packed article sold to the purchaser which states as the weight or measure of the article a weight or measure that is greater than the true weight or measure of the article so sold, is guilty of an offence against this Act. (3) If a person convicted of-an offence against subsection (1) or subsection ( 2) of this section has previously been convicted of an offence against this section, he shall be liable to a penalty not exceeding Four hundred dollars. (4) Subsection ( 1) of this section and paragraph ( a) of subsection (2) of this section have effect in relation to any pre-packed article whether or not the package containing the article is required , by or under this Act, to be marked with a statement of the weight or measure of the article. (5) Where a package is marked with a statement of the weight or measure of an article contained therein expressed in Commonwealth legal units of measurement related to the yard , the pound , or the gallon, and is , in addition , marked , pursuant to the regulations , with a statement of the weight or measure of its contents expressed in terms of some other unit of measurement , the true weight or measure of the article shall, for the purposes of subsection ( 1) of this section , be deemed to be less than the weight or measure of the article marked on the package if that true weight or measure is less than the weight or measure specified in either of those statements. (6) A pre - packed article shall, for the purposes of this Act, be deemed to be of a true weight or measure equal to the weight or measure marked on the package in which the article is contained if- (a) any deficiency of weight or measure of the article does not exceed five parts per centum of the weight or measure marked on the package or, where the article is contained in a glass bottle the stated contents of which do not exceed eight ounces or eight fluid ounces , seven and one-half parts per centum of the stated contents; and (b) there is no average deficiency in the contents of twelve packages containing the article taken at random by an inspector or, where there are less than twelve such packages available, in the contents of all the available packages, being not fewer than six. (7) In proceedings in respect of an offence against subsection (2) of this section , it is a defence for the person charged to prove- (a) that- (i) the person from whom he purchased the article or who packed the article furnished him with a written guarantee that the weight or measure of the article marked on the package containing the article was correct; and (ii) he sold or delivered the article in the same state as it was when delivered to him; or (b) that- (i) he purchased the article in a package that was marked as required by section 43B and by section 43D of this Act; (ii) he sold or delivered the article in the same state as it was when delivered to him; and

Weights and Measures Acts Amendment Act of 1967, No. 54 551 (iii) the person who packed the article or the agent of that person or of the manufacturer of the article, from which agent the person charged purchased the article, is resident in the State, but the marking on the package of the weight or measure of the article contained therein constitutes a warranty by the person, who packed the article or, as the case requires, by that agent that the true weight or measure of the article is as marked on the package. (8) Where the true weight or measure of an article contained in such a package as is referred to in subparagraph (i) of paragraph (b) of subsection (7) of this section is found by an inspector to be less than the weight or measure marked on the package containing the article, any person who appears from the marking on the package to have packed the article or, if that person is not resident in the State, the agent referred to in that subsection- (a) shall be deemed to have sold the article to the inspector on the day when, and at the place where, the inspector weighed or measured the article or caused it to be weighed or measured; and (b) is liable to the same penalty as if he had actually sold the article to the inspector on that day and at that place. (9) A person who gives such a guarantee as is referred to in paragraph (a) of subsection (7) of this section that is false or misleading in a material particular is guilty of an offence against this Act and shall be liable to a penalty not exceeding Four hundred dollars. (10) In proceedings against a person in respect of an offence against subsection (9) of this section, it is a defence for the person charged to prove that any discrepancy between the true weight or measure of the article to which the proceedings relate and the weight or measure of the article as stated in the guarantee- (a) arose after the giving of the guarantee and was attributable wholly to factors for which reasonable allowance was made in stating the weight or measure of the article; or (b) is due to the act or default of some other person after the article had passed from the control of the person charged. (11) Subsections (7) and (10) of this section do not apply unless the person charged has, not less than two days before the date set down for the hearing of the proceedings, notified the complainant that he intends to avail himself of the protection of subsection (7) or, as the case may be, subsection (10) of this section, giving the reasons relied on for claiming that protection. [43G.] Articles that may be marked " Net weight when packed ". (1) Where an article of any description to which this section applies (being a pre-packed article) is of such a nature and is so packed that the weight of the article is or is likely, by reason of climatic conditions or evaporation, to be subject to variation after the packing of the article, the regulations may prescribe that packages containing articles of that description may be marked, in the prescribed form and manner, with the words " Net weight when packed " or words to the like effect.

552 Weights and Measures Acts Amendment Act of 1967, No. 54 (2) The regulations may provide that a package containing an article of a specified kind (in this section referred to as "a specified article "), being an article of a description to which this section applies, may, in lieu of being marked with the words referred to in subsection (1) of this section, be marked with such other words as may be prescribed ( in this section referred to as " the alternative words "). (3) A person shall not pack for sale, or cause , permit , or suffer to be packed for sale- (a) an article of any description to which this section applies in a package marked with a statement of the weight of the article together with the words " Net weight when packed " or words to the like effect; or (b) a specified article in a package marked with a statement of the weight of the article together with the alternative words, unless the true weight of the article is, at the time when the article is packed and at all times thereafter during the day on which the article is packed, equal to or greater than the weight marked on the package. (4) A person shall not mark, (.r cause, permit, or suffer to be marked- (a) the words " Net weight when packed " or words to the like effect on a package containing any article other than an article to which this section applies; or (b) the alternative words on a package containing any article other than a specified article. (5) If a person convicted of an offence against subsection (3) or subsection ( 4) of this section has previously been convicted of an offence against this section, he shall be liable to a penalty not exceeding Four hundred dollars. (6) For the purposes of this section , but subject to subsection (7) of this section , an article of any description to which this section applies contained in a package marked pursuant to this section with the words " Net weight when packed " or words to the like effect or, in the case of a specified article , with the alternative words, shall be deemed to have been , at the time when the article was packed and at all times thereafter during the day on which the article was packed , of a true weight equal to the weight marked on the package if- (a) any deficiency of weight of the article does not exceed five parts per centum of the weight marked. on the package; and (b) there is no average deficiency in the contents of twelve packages containing the article taken at random by an inspector or, where there are less than twelve such packages available, in the contents of all the available packages , being not fewer than six. (7) Notwithstanding anything in subsection (6) of section 43F of this Act or in subsection ( 6) of this section , where- (a) an article is contained in a package marked , pursuant to this section , with the words " Net weight when packed " or words to the like effect or, in the case of a specified article, with the alternative words; (b) the article is declared by the regulations to be an article to which this subsection applies; and

Weights and Measures Acts Amendment Act of 1967, No. 54 553 (c) at any time subsequent to the day when the article was packed- (i) there is a deficiency of weight of the article exceeding such number of parts per centum (being greater than five parts per centum) of the weight marked on the package as may be prescribed for the purposes of this subsection in relation to that article; or (ii) there is an average deficiency exceeding such number of parts per centum of the weight marked on the package as may be prescribed as the permissible average deficiency for the purposes of this subsection in relation to that article in the contents of twelve packages containing the article taken at random by an inspector or, where there are less than twelve such packages available, in the contents of all the available packages, being not fewer than six, the article shall, for the purposes of this section, be deemed not to have been, at the time when the article was packed and at all times thereafter during the day on which the article was packed, of a true weight equal to the weight marked on the package. (8) The regulations may require that, in addition to any other particulars required by or under this Act to be marked on the package containing an article to which subsection (7) of this section applies, the package shall be marked with the date when the article was packed or with an approved brand indicating that date. (9) This section applies to articles of such descriptions as may be prescribed. [43H.] Prohibition and restriction of use of certain expressions on packages . (I) Subject to this section, if a prohibited expression or a restricted expression is marked on a package containing a pre-packed article, the person who packed the article, or who caused, permitted, or suffered the article to be packed, is guilty of an offence against this Act. (2) If a person convicted of an offence against subsection (1) of this section has previously been convicted of an offence against this section, he shall be liable to a penalty not exceeding Four hundred dollars. (3) Subject to this section, a person who sells a pre-packed article contained in a package on which a prohibited expression or a restricted expression is marked is guilty of an offence against this Act. (4) The provisions of subsections (1) and (3) of this section do not apply to or in relation to an article contained in a package on which a restricted expression is marked if, in addition to that expression- (a) there is marked on every part of the package on which the restricted expression is marked such a statement as to the weight or measure of the article contained in the package as is referred to in subsection (1) of section 43D of this Act, whether or not the article is an article of a description to which that section applies; (b) the restricted expression and that statement are so placed and so marked that both may be seen clearly at the same time; and (c) each of the letters or figures contained in that statement- (i) is of a size not less than the minimum size of print prescribed by the regulations in relation to the dimension of the package;

554 Weights and Measures Acts Amendment Act of 1967, No. 54 (ii) is of a size not less than one-third of the size of the largest letter or figure contained in the restricted expression; and (iii) is marked in a colour of a distinct contrast to the colour of its background. (5) In this section- " prohibited expression " means any expression (whether consisting of a single word or of more words than one and whether in an abbreviated form or not) that directly or indirectly relates to or qualifies a unit of measurement of a physical quantity and, without prejudice to the generality of the foregoing, includes any expression declared by the regulations to be a prohibited expression for the purposes of this section; " restricted expression " means any expression not being a prohibited expression (and whether consisting of a single word or of more words than one or of any word or words in combination with any figure or figures and whether in an abbreviated form or not) that directly or indirectly relates to the size of the package containing the article (not being such a statement as to the weight or measure of the article as is required by subsection (1) of section 43D of this Act) and, without prejudice to the generality of the foregoing, includes any expression that is declared by the regulations to be a restricted expression for the purposes of this section. [431.] Certificate of incorrect guarantee or warranty . (1) Where a person is charged with an offence against subsection (2) of section 43F of this Act and the court before which the proceedings are brought is satisfied that- (a) the article to which the alleged offence relates was packed by a person other than the defendant; (b) the defendant was furnished with such a guarantee as is referred to in paragraph (a) of subsection (7) of section 43F of this Act, or the marking on the package containing the article constitutes a warranty pursuant to that subsection; (c) the defendant sold or delivered the article in the same state as it was when delivered to him; and (d) the guarantee or warranty, as the case may be, was false or misleading in a material particular, the court may, on the application of the complainant, grant a certificate as to its findings. (2) In proceedings in respect of an offence against subsection (1), (2), (8), or (9) of section 43F of this Act, a certificate purporting to have been granted under subsection (1) of this section is evidence of the matters stated therein. [43J.] Approval of brands . (I) On the application of a person whose business is or includes the packing of articles for sale, the Chief inspector may approve in writing of a brand for use by that person for the purpose of marking on packages- (a) the name and address referred to in paragraph (a) of subsection (I) of section 43n of this Act; or

Weights and Measures Acts Amendment Act of 1967, No. 54 555 (b) where the regulations so require , the dates when the articles contained in the packages were packed, and a package on which such a brand is marked in accordance with the approval shall, for the purposes of this Act, be deemed to be marked with the name and address referred to in paragraph ( a) of subsection (1) of section 43B of this Act , or, as the case requires , with the date when the article contained therein was packed. (2) An approval under subsection ( 1) of this section may be granted subject to such conditions ( if any) as the Chief Inspector determines and specifies in the approval, and may be cancelled by the Chief Inspector at any time by notice in writing to the person to whom the approval was granted. (3) A person to whom an approval under subsection ( 1) of this section has been granted subject to conditions shall not mark a package containing an article , or cause , permit , or suffer such a package to be marked, with the brand specified in the approval otherwise than in compliance in all respects with those conditions. (4) Where an approval has been granted to a person under subsection (1) of this section of a brand for use by that person for the purposes of marking on packages the name and address referred to in paragraph (a) of that subsection , no person other than the person to whom that approval was granted or a person having his authority so to do shall mark a package containing an article with the brand specified in the approval or with any other brand so closely resembling the brand specified in the approval as to be likely to lead to the belief that it is the brand specified in the approval.". (2) Notwithstanding the provisions of the Principal Act relating to- (i) the denominations of weight or measure in which an article of any description to which section 43c of the Principal Act, as inserted by subsection ( 1) of this section, will, upon the commencement of the said section 43c , apply may be packed for sale; or (ii) the marking of a package containing an article of any description to which section 43D of the Principal Act, as inserted by subsection (1) of this section, will, upon the commencement of the said section 43D , apply with a statement of the true weight or measure of the article, on and after the passing of this Act a person may pack for sale, or cause, permit, or suffer to be packed for sale, or sell- (iii) an article referred to in paragraph ( i) of this subsection in any denomination of weight or measure prescribed for the purposes of the said section 43c; or (iv) an article referred to in paragraph ( ii) of this subsection contained in a package marked as prescribed for the purposes of the said section 43D.

556 Weights and Measures Acts Amendment Act of 1967, No, 54 11. Amendments of s. 44 . Section forty-four of the Principal Act is amended by- (a) in subsection (8), omitting the first paragraph and inserting in its stead the following paragraph: " Where a person is convicted of an offence against this Act, the court by which he is convicted may order such payment as it thinks fit as compensation for loss of time or expense incurred in consequence of the offence or in connection with proceedings taken in relation thereto, or by way of recoupment of any loss suffered by any person who, in the opinion of the court, was defrauded or suffered pecuniary loss by reason of the commission of the offence."; (h) omitting subsection (10) and inserting in its stead the following subsection:- " (10) Recovery of fees, & c., from bodies corporate . Proceedings against any corporation, instrumentality, or authority for the recovery of any fees, charges or expenses under this Act may be taken against any person who is a director or member of the governing authority of the corporation. instrumentality, or authority, or an officer concerned in the management of the corporation, instrumentality, or authority, and that person shall be personally liable in those proceedings for the fees, charges, or expenses in question."; (c) adding to subsection (11) the following paragraph.- " (c) The principal or employer may be proceeded against and convicted pursuant to paragraph (a) of this subsection notwithstanding that the agent or employee has not been proceeded against or has not been convicted under this Act.";. and (d) adding the following subsections:- " (12) Offences by bodies corporate . Where a corporation, instrumentality, or authority is convicted of an offence against this Act, every person who at the time of the commission of the offence was a director or member of the governing authority of the corporation, instrumentality, or authority, or an officer concerned in the management of the corporation. instrumentality, or authority, is guilty of the like offence unless he proves that he had no knowledge of the commission of the offence and could not, by the exercise of due diligence, have prevented the commission of the offence, and any such person may, on the request of the complainant, be convicted on the proceedings on which the corporation, instrumentality, or authority is convicted if the court is satisfied that the person had reasonable notice that the complainant intended to make that request. (13) Taking of Proceedings . Where it appears to the Chief Inspector that an offence against this Act has been committed by a person and the Chief Inspector is of the opinion that the offence was due to an act or default of some other person and that the first-mentioned person could establish a defence under this Act applicable to the offence, the Chief Inspector may take or authorise the taking of proceedings against that other person without first taking or authorising the taking of proceedings

Weights and Measures Acts Amendment Act of 1967, No. 54 557 against the first-mentioned person, and in any such proceedings that other person may be charged with and, on proof that the commission of the offence was due to his act or default, be convicted of, the offence with which the first-mentioned person might have been charged, and in any proceedings against that other person the first-mentioned person is a competent and compellable witness.". 12. New s. 44A. The Principal Act is amended by inserting after section forty-four the following section:- " [44A.] Defences . (1) In proceedings in respect of an offence against section 43s of this Act, it is a defence for the person charged to prove that the article to which the proceedings relate was packed on any premises for sale on those premises to a person for the purpose of consumption or use and not for the purpose of re-sale. (2) In proceedings in respect of an offence against subsection (1) of section 43c, or subsection (1) of section 43D, of this Act, it is a defence for the person charged to prove that the article to which the proceedings relate was packed for export from Australia and that the marking on the package containing the article clearly so indicated. (3) In proceedings in respect of an offence against subsection (1) of section thirty-five, subsection (4) of section 43B, subsection (3) of section 43c, subsection (3) of section 43D, paragraph (a) of subsection (4) of section 43E, subsection (2) of section 43F, or subsection (3) of section 43H, of this Act, in relation to a pre-packed article, it is a defence for the person charged to prove- (a) that the commission of the offence was due to a cause or to causes beyond his control; (b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence in respect of the article to which the proceedings relate; and (c) that he purchased the article from another person and sold or delivered it in the same state as it was when delivered to him. (4) A cause beyond the control of a person charged with an offence against subsection (1) of section thirty-five, subsection (4) of section 43B, subsection (3) of section 43c, subsection (3) of section 43D, paragraph (a) of subsection (4) of section 43E, subsection (2) of section 43F, or subsection (3) of section 43x, of this Act, is not a defence under subsection (3) of this section if the court before which the proceedings are brought is of the opinion that the cause was one that the person charged could reasonably have foreseen or for which he could reasonably have made allowance. (5) In proceedings against a person who packed an article, or who caused , permitted , or suffered an article to be packed , in respect of an offence against subsection ( I) of section thirty-five , or subsection (1) or

558 Weights and Measures Acts Amendment Act of 1967, No. 54 subsection (2) of section 43F of this Act, being an offence in relation to an alleged deficiency in the true weight or measure of the article, it is a defence for the person charged to prove- (a) that the deficiency arose after the packing of the article and the marking of the package and was attributable wholly to factors for which reasonable allowance was made in stating the weight or measure of the article; or (b) that- (i) the commission of the offence was due to a cause or to causes beyond his control; and (ii) he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence in respect of the article to which the offence relates, but a cause beyond the control of the person charged is not a defence under paragraph (b) of this subsection if the court before which the proceedings are brought is of the opinion that the cause was one that the person charged could reasonably have foreseen or for which he could reasonably have made allowance. (6) Subsections (3) and (5) of this section do not apply unless the person charged has, not less than two days before the date set down for the hearing of the proceedings, notified the complainant that he intends to avail himself of the protection of this section, giving the reasons relied on for claiming that protection.". 13. Amendment of s. 53. Section fifty-three of the Principal Act is amended by re-numbering the present section as subsection (1) and by adding the following subsection:- " (2) In proceedings in respect of an offence against this Act in relation to a pre-packed article- (a) the marking on the package in which the article is contained indicating the name of the person who packed the article is evidence that the article was packed by that person; (b) the marking on the package in which the article is contained indicating the name and address of a person for or on whose behalf the article was packed is evidence that the article was packed for or on behalf of that person; (c) the marking on the package in which the article is contained indicating the place where the article was packed is evidence that the article was packed at that place; (d) the marking on the package in which the article is contained indicating the date when the article was packed is evidence that the article was packed on that date; (e) a document purporting to be certified by the Chief Inspector to be a copy of a permit granted by the Minister under section 43E of this Act is evidence of the grant of the permit and of the conditions (if any) specified in the permit; (f) a certificate purporting to be signed by the Chief Inspector and stating- (i) that a permit granted by the Minister under subsection (1) of section 43r of this Act has been cancelled;

Weights and Measures Acts Amendment Act of 1967, No. 54 559 (ii) that a permit cancelled under subsection (6) of section 43E of this Act has not been delivered up to him; (iii) that an approval granted by him under subsection (1) of section 431 of this Act has been cancelled, is evidence of the matters stated in the certificate; and (g) a document purporting to be certified by the Chief Inspector to be a copy of an approval granted by him under section 431 of this Act of a brand for use by a person for the purpose of marking on packages- (i) the name and address required by paragraph (a) of subsection (1) of section 43B of this Act to be marked on packages; or (ii) the date when the articles contained therein were packed, is evidence of the approval and of the conditions (if any) subject to which the approval was granted, and the fact that such a brand is marked on a package containing an article is evidence that- (iii) the article was packed by the person to whom the approval was granted and at the place the address of which is specified in the approval as the address indicated by the brand; or (iv) the article was packed on the date indicated by that brand, as the case requires.". 14. Amendments of s. 54 . Subsection (2) of section fifty-four of the Principal Act is amended by- (a) omitting paragraphs (i), (ii) and (iii), and inserting in their stead the following paragraph- (i) Prescribing standard specifications of capacity for or in relation to packages used in the packing or sale of prescribed articles, prescribing distinctive marks for packages made to those specifications, and providing that any such articles, when packed, shall be sold only in prescribed packages made to those specifications and bearing the prescribed distinctive marks;"; (b) renumbering paragraph (iv) as paragraph (ii); (c) in paragraph (v)- (i) omitting the words " bottles or "; and (ii) renumbering that paragraph as paragraph (iii); (d) in paragraph (vi)- (i) omitting the words " bottles or other "; and (ii) renumbering that paragraph as paragraph (iv); and (e) renumbering paragraph (vii) as paragraph (v). 15. Amendments of s. 55. Section fifty-five of the Principal Act is amended by- (a) in subsection (1)- (i) inserting after subparagraph (x) of the second paragraph the following subparagraph:- " (xa) Prescribing the form and manner in which packages required or permitted by any provision of this Act to be marked with any particulars, statement, or approved brand, shall or may be so marked; ";

560 Weights and Measures Acts Amendment Act of 1967, No. 54 (ii) omitting from subparagraph (xii) of the second paragraph the words " weights or measures " and inserting in their stead the words " denominations of weight or measure "; (iii) renumbering subparagraphs (xix), (xx) and (xxi) of the second paragraph as subparagraphs (xxvii), (xxviii) and (xxix), respectively; and (iv) inserting after subparagraph (xviii) of the second paragraph the following subparagraphs:- " (xix) regulating, controlling, and restricting the sale or supply of articles by means of a vending machine (as defined in the regulations) and prohibiting the sale or supply of articles by means of such a machine otherwise than in accordance with the regulations; (xx) for securing that articles that are sold by means of a vending machine (as defined in the regulations) are so sold only if there is displayed in or on the machine such particulars or statements, with respect to such matters, as may be prescribed, and the manner in which the particulars or statements so prescribed shall be so displayed; (xxi) for or with respect to the units of weight or measurement to be used in marking or displaying on packages or vending machines (as defined in the regulations) any particulars or statements required to be marked or displayed thereon, either generally or in respect of any prescribed description of articles, and the manner in which those units of weight or measurement shall or may be expressed (whether in figures or words or figures and words) and the abbreviations that may or may not be used for the purposes of expressing those units; (xxii) for or with respect to the method in which, and the conditions under which, the weight or measure of articles is to be determined in connection with the marking or displaying on packages or on vending machines (as defined in the regulations) of any particulars or statements referred to in the foregoing provisions of this subsection; (xxiii) permitting, in the case of such articles and in such circumstances as may be specified in the regulations, the weight or measure of any articles used in packing the first-mentioned articles for sale as may be so specified to be included in the net weight or measure of the first-mentioned articles; (xxiv) exempting (either wholly or to such extent as may be prescribed) or authorising a prescribed person to exempt (either unconditionally or subject to such conditions and restrictions as that person may determine) from all or any of the provisions of this Act or of the regulations- (i) articles of any description prescribed or referred to in the regulations and packages containing any such articles; and (ii) prescribed transactions and classes of sales; (xxv) requiring packages containing articles of a prescribed description to be marked with a statement of the sale price per unit of weight or measurement of the articles contained therein. (xxvi) generally regulating and controlling the packing of articles or of articles of prescribed descriptions and the marking of packages in which pre-packed articles are contained;" ; and

Weights and Measures Acts Amendment Act of 1967, No. 54 561 (h) adding the following subsections:- " (4) The regulations may be made so as to apply to pre-packed articles generally or only in respect of the packing or sale of pre-packed articles of denominations of weight or measure greater than or less than some other prescribed multiple of a prescribed denomination. (5) The regulations shall not be regarded as invalid on the ground that they delegate to or confer on a person a discretionary authority.".