NATIONAL MEASUREMENT AMENDMENT ACT 2013 (NO. 131, 2013) - SCHEDULE 1 Powers of trade measurement inspectors

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NATIONAL MEASUREMENT AMENDMENT ACT 2013 (NO. 131, 2013) - SCHEDULE 1

Powers of trade measurement inspectors

National Measurement Act 1960

1 Subsection 3(1)

Insert:

"fuel tax credit" has the same meaning as in the Fuel Tax Act 2006 .

2 Subsection 3(1)

Insert:

"like article" , in relation to a notice to remedy, has the meaning given by subsection 18MMA(7).

3 Subsection 3(1)

Insert:

"notice to remedy" has the meaning given by subsection 18MMA(2).

4 Subsection 3(1)

Insert:

"remedy period" , for a notice to remedy, means the period specified in the notice under paragraph 18MMA(3)(e).

5 At the end of subsections 18GA(1) and (2) (after the penalty)

Add:

Note: Whether a measuring instrument is verified may be affected by a direction given under section 18GR.

6 At the end of subsections 18GE(1) and (2) (after the penalty)

Add:

Note: For an exception to this offence, see subsection (10).

7 At the end of section 18GE

Add:

Trade measurement inspector may give notice to remedy

(8) A trade measurement inspector may give a person a notice to remedy if:

(a) the inspector reasonably believes that the person has contravened subsection (1) or (2) by using a measuring instrument for trade that gives an inaccurate measurement or gives other information inaccurately; and

(b) the inspector is satisfied that, despite the contravention:

(i) the measuring instrument could be used for trade during the remedy period for the notice without there being any material detriment to an affected person; or

(ii) the measuring instrument could be used for trade during the remedy period for the notice without there being any material detriment to an affected person if conditions specified in accordance with subsection (9) are complied with.

Notice may specify conditions

(9) A trade measurement inspector may specify in the notice to remedy one or more conditions that must be complied with by the person to whom the notice is given during the remedy period for the notice. A condition may only be imposed by the inspector if compliance with the condition would be reasonably likely to ensure that the measuring instrument could be used for trade during the remedy period without there being any material detriment to an affected person.

Exception--all reasonable steps taken to remedy contravention etc.

(10) Subsections (1) and (2) do not apply to the person in relation to a measuring instrument during the remedy period for the notice if:

(a) where the inspector, in accordance with subsection (9), specifies in the notice one or more conditions that must be complied with during the remedy period--those conditions are complied with during the remedy period; and

(b) during the remedy period, the person takes all reasonable steps to remedy the matters that gave rise to the contravention.

Note: A defendant bears an evidential burden in relation to the matters in subsection (10) (see subsection 13.3(3) of the Criminal Code ).

(11) For the purposes of this section, an affected person , in relation to a measuring instrument, means a person whose liability to pay consideration in respect of a transaction may be determined using the instrument. However, a person who is actually or apparently in control of the instrument is not an affected person .

8 At the end of Division 3 of Part IV

Add:

18GR Measuring instrument taken not to have failed test procedures in certain circumstances

When this section applies

(1) This section applies if:

(a) a person uses a measuring instrument for trade; and

(b) a trade measurement inspector, in the course of exercising powers or performing functions or duties under this Act or the regulations, becomes aware that:

(i) the measuring instrument no longer complies with the requirements for verification set out in section 18GK when tested in accordance with the national instrument test procedures; or

(ii) if the measuring instrument is treated as one of a batch under the national instrument test procedures--the measuring instrument is one of a batch that no longer complies with the requirements for verification set out in section 18GK when tested in accordance with those procedures.

Trade measurement inspector may give direction

(2) A trade measurement inspector may give a person a direction in accordance with this section requiring the person to take specified action in relation to the matter that gave rise to the failure of the measuring instrument, or batch of instruments, when tested.

(3) A direction may only be given by the inspector if the inspector is satisfied that the matter that gave rise to the failure of the measuring instrument, or batch of instruments, when tested will not materially affect the accuracy of the instrument if the direction is complied with.

Requirements for direction

(4) A direction given under subsection (2) must:

(a) be in writing; and

(b) set out the name of the person to whom it is given; and

(d) state that the direction is given under this Act; and

(e) state the period within which the action must be taken, in accordance with subsection (5); and

(f) set out brief details of the reasons why the direction has been given; and

(g) set out brief details of the matter that gave rise to the failure of the measuring instrument, or batch of instruments, when tested; and

(h) explain the consequences of failing to comply with the direction; and

(i) set out any other matters prescribed by the regulations.

(5) The period stated in the direction must:

(a) be a period of no more than 28 days; and

(b) begin the day after the direction is given.

Effect of complying with direction--instrument taken not to have failed test procedures

(6) Where:

(a) a direction is given to a person in accordance with this section in relation to a matter; and

(b) the person complies with that direction;

then, for the purposes of this Act and the regulations, the measuring instrument, or batch of instruments, is taken not to have failed when tested because of that matter.

Note: A defendant bears an evidential burden in relation to the matter in paragraph (6)(b) (see subsection 13.3(3) of the Criminal Code ).

(7) To avoid doubt, the giving of a direction under this section to a person does not affect the liability of the person for a contravention of this Act or the regulations that is alleged to have occurred before the direction was given.

Direction not legislative instrument

(8) A direction given under this section is not a legislative instrument.

9 At the end of subsections 18HB(1), (2), (3) and (4) (after the penalty)

Add:

Note: For an exception to this offence, see subsection (9).

10 At the end of section 18HB

Add:

Trade measurement inspector may give notice to remedy

(7) A trade measurement inspector may give a person a notice to remedy if:

(a) the inspector reasonably believes that the person has contravened a provision of this section in relation to an article packed in advance ready for sale; and

(b) the inspector is satisfied that, despite the contravention:

(i) like articles could be sold during the remedy period for the notice without there being any material detriment to the purchaser; or

(ii) like articles could be sold during the remedy period for the notice without there being any material detriment to the purchaser if conditions specified in accordance with subsection (8) are complied with.

Note: Like article has the meaning given by subsection 18MMA(7).

Notice may specify conditions

(8) A trade measurement inspector may specify in the notice to remedy one or more conditions that must be complied with by the person during the remedy period for the notice. A condition may only be imposed by the inspector if compliance with the condition would be reasonably likely to ensure that a like article could be sold during the remedy period without there being any material detriment to the purchaser.

Exception--all reasonable steps taken to remedy contravention etc.

(9) Subsections (1) to (4) do not apply to the person in relation to like articles during the remedy period for the notice if:

(a) where the inspector, in accordance with subsection (8), specifies in the notice one or more conditions that must be complied with during the remedy period--those conditions are complied with during the remedy period; and

(b) during the remedy period, the person takes all reasonable steps to remedy the matters that gave rise to the contravention.

Note: A defendant bears an evidential burden in relation to the matters in subsection (9) (see subsection 13.3(3) of the Criminal Code ).

11 At the end of subsections 18HC(1) and (2) (after the penalty)

Add:

Note: For an exception to this offence, see subsection (6).

12 At the end of section 18HC

Add:

Trade measurement inspector may give notice to remedy

(4) A trade measurement inspector may give a person a notice to remedy if:

(a) the inspector reasonably believes that the person has contravened subsection (1) or (2) in relation to an article that is not packed in advance ready for sale; and

(b) the inspector is satisfied that, despite the contravention:

(i) like articles could be sold during the remedy period for the notice without there being any material detriment to the purchaser; or

Note: Like article has the meaning given by subsection 18MMA(7).

Notice may specify conditions

(5) A trade measurement inspector may specify in the notice to remedy one or more conditions that must be complied with by the person during the remedy period for the notice. A condition may only be imposed by the inspector if compliance with the condition would be reasonably likely to ensure that a like article could be sold during the remedy period without there being any material detriment to the purchaser.

Exception--all reasonable steps taken to remedy contravention etc.

(6) Subsections (1) and (2) do not apply to the person in relation to like articles during the remedy period for the notice if:

(a) where the inspector, in accordance with subsection (5), specifies in the notice one or more conditions that must be complied with during the remedy period--those conditions are complied with during the remedy period; and

(b) during the remedy period, the person takes all reasonable steps to remedy the matters that gave rise to the contravention.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

13 Paragraph 18HD(1)(a)

After "the article", insert "or utility".

14 At the end of subsection 18HD(1) (after the penalty)

Add:

Note: For an exception to this offence, see subsection (6).

15 At the end of section 18HD

Add:

Trade measurement inspector may give notice to remedy

(4) A trade measurement inspector may give a person a notice to remedy if:

(a) the inspector reasonably believes that the person has contravened subsection (1) in relation to the sale of an article (whether packed in advance ready for sale or otherwise) or a utility by reference to measurement of the article or utility in a unit of measurement that is not prescribed (the unauthorised unit ); and

(b) the inspector is satisfied that, despite the contravention:

(i) like articles or the utility could be sold during the remedy period for the notice by reference to measurement in the unauthorised unit without there being any material detriment to the purchaser; or

(ii) like articles or the utility could be sold during the remedy period for the notice by reference to measurement in the unauthorised unit without there being any material detriment to the purchaser if conditions specified in accordance with subsection (5) are complied with.

Note: Like article has the meaning given by subsection 18MMA(7).

Notice may specify conditions

(5) A trade measurement inspector may specify in the notice to remedy one or more conditions that must be complied with by the person during the remedy period for the notice. A condition may only be imposed by the inspector if compliance with the condition would be reasonably likely to ensure that a like article or the utility could be sold during the remedy period by reference to measurement in the unauthorised unit without there being any material detriment to the purchaser.

Exception--all reasonable steps taken to remedy contravention etc.

(6) Subsection (1) does not apply to the person in relation to like articles or the utility during the remedy period for the notice if:

(b) during the remedy period, the person takes all reasonable steps to remedy the matters that gave rise to the contravention.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

16 Paragraph 18HE(1)(a)

After "the article", insert "or utility".

17 At the end of subsections 18HG(1) and (2) (after the penalty)

Add:

Note: For an exception to this offence, see subsection (6).

18 At the end of section 18HG

Add:

Trade measurement inspector may give notice to remedy

(4) A trade measurement inspector may give a person a notice to remedy if:

(a) the inspector reasonably believes that the person has contravened subsection (1) or (2) by using a measuring instrument for trade for a purpose that is not prescribed (the unauthorised purpose ); and

(b) the inspector is satisfied that, despite the contravention:

(i) the measuring instrument could be used for trade for the unauthorised purpose during the remedy period for the notice without there being any material detriment to an affected person; or

(ii) the measuring instrument could be used for trade for the unauthorised purpose during the remedy period for the notice without there being any material detriment to an affected person if conditions specified in accordance with subsection (5) are complied with.

Notice may specify conditions

(5) A trade measurement inspector may specify in the notice to remedy one or more conditions that must be complied with by the person to whom the notice is given during the remedy period for the notice. A condition may only be imposed by the inspector if compliance with the condition would be reasonably likely to ensure that the measuring instrument could be used for trade for the unauthorised purpose during the remedy period without there being any material detriment to an affected person.

Exception--all reasonable steps taken to remedy contravention etc.

(6) Subsections (1) and (2) do not apply to the person in relation to a measuring instrument during the remedy period for the notice if:

(b) during the remedy period, the person takes all reasonable steps to remedy the matters that gave rise to the contravention.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

(7) For the purposes of this section, an affected person , in relation to a measuring instrument, means a person whose liability to pay consideration in respect of a transaction may be determined using the instrument. However, a person who is actually or apparently in control of the instrument is not an affected person .

19 At the end of subsections 18JA(1) and (2) and 18JB(1) and (2) (after the penalty)

Add:

Note: For an exception to this offence, see subsection (4) of this section and subsection 18JHA(3).

20 At the end of subsections 18JC(1) and (2) and 18JD(1) and (2) (after the penalty)

Add:

Note: For exceptions to this offence, see subsections (4) and (5) of this section and subsection 18JHA(3).

21 At the end of subsections 18JE(1) and (2) (after the penalty)

Add:

Note: For exceptions to this offence, see subsection (4) of this section and subsection 18JHA(3).

22 At the end of subsections 18JF(1) and (2) (after the penalty)

Add:

Note: For an exception to this offence, see subsection 18JHA(3).

23 At the end of subsections 18JG(1) and (2) and 18JH(1) and (2) (after the penalty)

Add:

Note: For exceptions to this offence, see subsection (4) of this section and subsection 18JHA(3).

24 At the end of Division 2 of Part VI

Add:

Subdivision 2-C -- Notices to remedy

18JHA Trade measurement inspector may give notice to remedy

When a notice to remedy may be given

(1) A trade measurement inspector may give a person a notice to remedy if:

(a) the inspector reasonably believes that the person has contravened a provision of this Division in relation to an article packed in advance ready for sale; and

(b) the inspector is satisfied that, despite the contravention:

(i) like articles could be sold during the remedy period for the notice without there being any material detriment to the purchaser; or

Note: Like article has the meaning given by subsection 18MMA(7).

Notice may specify conditions

(2) A trade measurement inspector may specify in the notice to remedy one or more conditions that must be complied with by the person during the remedy period for the notice. A condition may only be imposed by the inspector if compliance with the condition would be reasonably likely to ensure that a like article could be sold during the remedy period without there being any material detriment to the purchaser.

Exception--all reasonable steps taken to remedy contravention etc.

(3) Offences against this Division do not apply to a person to whom a notice to remedy is given in relation to like articles during the remedy period for the notice if:

(a) where the inspector, in accordance with subsection (2), specifies in the notice one or more conditions that must be complied with during the remedy period--those conditions are complied with during the remedy period; and

(b) during the remedy period, the person takes all reasonable steps to remedy the matters that gave rise to the contravention.

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

25 At the end of subsections 18JK(2) and (3) and 18JL(1) to (6) (after the penalty)

Add:

Note: For an exception to this offence, see subsection 18JLA(3).

26 At the end of Subdivision 3-B of Division 3 of Part VI

Add:

18JLA Trade measurement inspector may give notice to remedy

When a notice to remedy may be given

(1) A trade measurement inspector may give a person a notice to remedy if:

(a) the inspector reasonably believes that the person has contravened a provision of this Subdivision in relation to an article packed in advance ready for sale; and

(b) the inspector is satisfied that, despite the contravention:

(i) like articles could be sold during the remedy period for the notice without there being any material detriment to the purchaser; or

Note: Like article has the meaning given by subsection 18MMA(7).

Notice may specify conditions

Exception--all reasonable steps taken to remedy contravention etc.

(3) Offences against this Subdivision do not apply to a person to whom a notice to remedy is given in relation to like articles during the remedy period for the notice if:

(b) during the remedy period, the person takes all reasonable steps to remedy the matters that gave rise to the contravention.

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

27 Section 18MD

Repeal the section, substitute:

18MD Overview

Overview of Division

(1) Trade measurement inspectors may enter public areas of business premises to purchase articles and packages sold there (see section 18MDA).

(2) Trade measurement inspectors may enter business or residential premises or stop, detain and inspect business vehicles to monitor compliance or collect evidential material (see sections 18ME and 18MF). A trade measurement inspector must not enter residential premises without consent or a warrant.

(3) Section 18MG sets out the general powers of trade measurement inspectors when entering premises or inspecting vehicles to monitor compliance or collect evidential material.

(4) Trade measurement inspectors may require a controller (or other person in or on the premises) to answer questions or produce documents (see section 18MH).

(5) Trade measurement inspectors may give a controller of a business vehicle (or other person in the vehicle) reasonable directions for the purpose of exercising powers in relation to the vehicle (see section 18MIA).

18MDA Powers of trade measurement inspectors in public areas of business premises

(1) A trade measurement inspector may enter a public area of business premises when the premises are open to the public and do one or more of the following for a purpose referred to in subsection (2):

(a) inspect any article or package that is available for sale;

(b) purchase any article or package that is available for sale;

(c) inspect or collect written information, advertising or any other document that is available, or made available, to the public;

(d) discuss with any person the features of any article or package that is available for sale;

(e) observe practices relating to the supply of any article or package that is available for sale.

(2) A trade measurement inspector may only exercise a power under subsection (1) for the purposes of:

(a) finding out whether Part IV, V, VI or VII has been complied with; or

(b) finding out whether a condition of a servicing licence under Part X or a public weighbridge licence under Part XI has been complied with; or

(c) finding out whether a condition of an appointment of a utility meter verifier under Part XIII has been complied with.

(3) Subsection (1) does not affect any right of the occupier of the business premises to refuse to allow a trade measurement inspector to enter, or remain on, the premises.

(4) Subsection (1) does not limit the powers of a trade measurement inspector under any other provision of this Division or any other power of a person to enter a public area of business premises.

28 Paragraph 18ME(1)(a)

Before "inspect", insert "stop, detain and".

29 Paragraph 18MF(2)(a)

Before "inspect", insert "stop, detain and".

30 After subsection 18MG(2)

Insert:

(2A) When exercising powers under subsection (2) in relation to a business vehicle, a trade measurement inspector must ensure that the vehicle is not detained for longer than is necessary and reasonable for the purpose of exercising those powers in relation to the vehicle and any thing in or on the vehicle.

31 After section 18MI

Insert:

18MIA Trade measurement inspector may give directions to controllers of business vehicles etc.

(1) If a trade measurement inspector is authorised to stop, detain and inspect a business vehicle under section 18ME or 18MF, the inspector may give reasonable directions to the controller of the vehicle and any person in the vehicle for the purpose of exercising those powers and the powers under section 18MG in relation to the vehicle or any thing in or on the vehicle.

(2) Without limiting subsection (1), a trade measurement inspector may direct the controller of a business vehicle or a person in the vehicle to do any or all of the following:

(a) drive or move the vehicle to or from a particular area;

(b) remain in, leave or return to the vehicle;

Offence requiring fault element

(3) A person commits an offence if:

(a) the person is given a direction under this section; and

(b) the person does not comply with the direction.

Penalty: 200 penalty units.

Strict liability offence

(4) A person commits an offence if:

(a) the person is given a direction under this section; and

(b) the person does not comply with the direction.

Penalty: 40 penalty units.

(5) Subsection (4) is an offence of strict liability.

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

32 At the end of section 18MM

Add:

Note: A measuring instrument may comply with the requirements for verification set out in section 18GK if the instrument is taken not to have failed when tested in accordance with the national instrument test procedures (see section 18GR).

33 At the end of Division 3 of Part IX

Add:

18MMA Notices to remedy

Trade measurement inspector may give notice to remedy

(1) A trade measurement inspector may give a person a notice to remedy if permitted to do so under this Act.

(2) A notice to remedy is a notice that complies with subsections (3), (4) and (5).

Requirements for notice

(3) A notice to remedy must:

(a) be in writing; and

(b) set out the name of the person to whom it is given; and

(d) state that the notice is a notice to remedy given under this Act; and

(e) state the remedy period for the notice in accordance with subsection (5); and

(f) set out brief details of the reasons why the notice has been given; and

(g) specify the provision or provisions which the trade measurement inspector reasonably believes has, or have, been contravened; and

(h) explain the consequences of failing to comply with the notice; and

(i) set out any other matters prescribed by the regulations.

(4) A notice to remedy may include a condition permitted under this Act.

(5) The remedy period must:

(a) be a period of no more than 28 days; and

(b) begin the day after the notice to remedy is given.

Effect of notice

(6) To avoid doubt, the giving of a notice to remedy to a person does not affect the liability of the person for a contravention of this Act that is alleged to have occurred before or after the remedy period to which the notice to remedy relates.

Definition--like articles

(7) For the purposes of determining if a notice to remedy may be given under a provision of this Act for a contravention, an article (the second article ) is a like article in relation to the article to which the contravention relates (the first article ) if:

(a) the second article is the same as, or substantially similar to, the first article; and

(b) if the first article is packed in advance ready for sale:

(i) the second article is packed in advance ready for sale; and

(ii) the second article is packaged in the same way as, or a substantially similar way to, the first article; and

(iii) the markings on the package in which the second article is packed are the same as, or substantially similar to, the markings on the package in which the first article is packed.

Notice to remedy not legislative instrument

(8) A notice to remedy is not a legislative instrument.

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