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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
DRAFT BILL FOR PUBLIC COMMENT
The Government proposes to introduce into
Parliament a Bill to make provision in respect
of --
* measuring instruments used for trading and
related purposes;
* the measurement of articles and substances for
determining their sale price;
* the packaging of things in advance of sale; and
* the measurement and pricing of things so packed,
and for incidental and related purposes.
This draft Bill has been prepared for public
comment but it does not necessarily represent the
Government's settled position.
Trade Measurement Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Determining certain quantities 6
page i
357--1
Trade Measurement Bill 2004
Contents
5. References to functions 6
6. Use of measuring instrument for trade -- meaning 6
7. Application of Act to Crown 7
8. Regulations may make this Act inapplicable to certain
matters 7
9. Regulations may provide for exemptions from this
Act 8
Part 2 -- Use of measuring instruments
for trade
10. Measuring instruments used for trade to be marked 9
11. Notice to remedy breach of section 10 may be given 10
12. Use of prescribed measuring instruments 11
13. Use of measuring instruments for pre-packed articles 11
14. Instruments that are incorrect or unjustly used 11
15. Notice to remedy breach of section 14 may be given 12
16. Supplying incorrect etc. measuring instrument 13
Part 3 -- Verification and certification
of measuring instruments
17. Provision and maintenance of standards 14
18. Verification and re-verification by inspectors 14
19. Certification and re-certification by licensees 15
20. Provision of information to Commissioner by licensee 15
21. Duration of verification and certification 16
22. Requirements for measuring instruments 17
23. Standards of measurement to be used 18
24. Responsibilities of Commissioner concerning
verification and certification 18
25. Keeping of register 19
26. Instruments not covered by this Act 19
27. Rejection of instrument by inspector -- obliteration of
marks 19
28. Duty of persons doing certain work to obliterate
marks or take other action 20
29. Marks on labels affixed to measuring instruments 20
30. Making mark without authority 20
31. Other offences concerning marks 21
page ii
[Draft Bill for public comment]
Trade Measurement Bill 2004
Contents
Part 4 -- Transactions by measurement
32. Measurement to be open to scrutiny in certain cases 22
33. Incorrect measurement or price calculation 23
34. Variation of quantity ordered 23
35. Special provisions for sale of meat 24
36. Special provision for sale of firewood by volume 25
37. Articles required to be sold by specific measurement 25
38. Presumptions concerning mass of vehicles 25
Part 5 -- Pre-packed articles
Division 1 -- Requirements for packaging and sale
of pre-packed articles
39. Requirements as to packaging of pre-packed articles 27
40. Defences concerning packaging of pre-packed articles 28
41. Restrictions on use of certain expressions on packages 28
42. Incorrect pricing of pre-packed article 29
43. Offence of packing or selling short measure 30
44. Extent of deficiency necessary to constitute short
measure 31
45. Defences concerning short measure 32
46. Seller's general defence 33
47. Employee's general defence 33
48. Regulations concerning methods of measurement 34
Division 2 -- Permit to sell certain pre-packed
articles
49. Commissioner may issue permits 34
50. Requirements for issue 35
51. Cancellation of permits 35
52. Recognition of permits under corresponding laws 35
Part 6 -- Licensing
Division 1 -- Requirements for licences
53. Requirement for servicing licence 36
54. Requirement for public weighbridge licence 36
Division 2 -- Granting of licences
55. Application for licence 37
56. Grounds for refusal 38
57. Licensee to be allotted a mark 39
page iii
[Draft Bill for public comment]
Trade Measurement Bill 2004
Contents
58. Register of licences 39
59. Conditions may be imposed on licences 39
60. Conditions on all servicing licences 40
61. Conditions on all public weighbridge licences 41
62. Conditions need not be endorsed on licence 42
63. Periodic licence fee 42
64. Continuation of weighbridge suitability statement in
particular circumstances 43
65. If weighbridge no longer suitable for use as a public
weighbridge 43
66. Cancellation for non-payment of licence fee 44
67. Surrender etc. of licence 44
68. Effect of relocation of licensed weighbridge 44
69. Application to change licence holders due to change
of partnership 45
70. Effect on licence of application under section 69 46
71. Application to amend condition of licence 47
72. Order preventing employment of certain persons 47
Division 3 -- Disciplinary action against licensees
73. Grounds for disciplinary action 49
74. Notice to licensee of grounds for disciplinary action 50
75. Taking of disciplinary action 50
Division 4 -- Review of decisions
76. Right to have certain decisions reviewed 51
Part 7 -- Inspectors
77. Powers of entry etc. 52
78. Powers in relation to measuring instruments 52
79. Powers in relation to articles 53
80. Pre-packed articles -- special powers 54
81. Return etc. of seized property 55
82. Obstruction etc. of inspector 56
83. Self-incrimination 56
84. Inspector's certificate of authority to be produced 57
Part 8 -- Miscellaneous
85. Penalties in provisions 58
86. Compensation for loss caused by offence 58
87. Offence by employee -- liability of employer 59
page iv
[Draft Bill for public comment]
Trade Measurement Bill 2004
Contents
88. Offence by body corporate -- liability of directors etc. 59
89. False or misleading statements 60
90. Evidence -- signatures of Minister and officials 60
91. Certificate evidence 60
92. Evidence -- pre-packed articles 61
93. Packaged article presumed to be pre-packed in certain
circumstances 62
94. Evidence -- use of measuring instrument for trade 62
95. Records -- English language 63
96. Regulations 63
97. Regulations may commence on different days 65
98. Operation of Fair Trading Act 1987 not affected 66
Part 9 -- Transitional provisions for the
measurement of certain alcoholic
liquor
99. Interpretation and application 67
100. Delayed application of sections 10(1), 16 and 32 67
101. Temporary continuation of certain provisions of
repealed Act 67
102. Further provision may be made for this Part 68
page v
[Draft Bill for public comment]
Western Australia
Trade Measurement Bill 2004
A draft for public comment of
A Bill for
An Act to make provision in respect of --
• measuring instruments used for trading and related purposes;
• the measurement of articles and substances for determining their
sale price;
• the packaging of things in advance of sale; and
• the measurement and pricing of things so packed,
and for incidental and related purposes.
The Parliament of Western Australia enacts as follows:
page 1
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Trade Measurement Act 2004.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
(3) Nothing in this section affects the operation of Part 9 so far as it
provides for the time when the application of this Act
10 commences in relation to certain measurements.
3. Interpretation
(1) In this Act, unless the contrary intention appears --
"Administration Act" means the Trade Measurement
Administration Act 2004;
15 "approved pattern", in relation to a measuring instrument,
means a pattern approved for the measuring instrument
under the National Measurement Act section 19A, being an
approval that --
(a) is currently in force under that provision; or
20 (b) has --
(i) expired; or
(ii) been cancelled (but not withdrawn),
under the National Measurement Act and was in
force when the measuring instrument was first
25 verified or certified;
"article" includes substance;
"Australian legal unit of measurement" has the same
meaning as in the National Measurement Act;
page 2
[Draft Bill for public comment]
Trade Measurement Bill 2004
Preliminary Part 1
s. 3
"certify" has the meaning given by section 19(1);
"Commissioner" means the person for the time being
designated as the Commissioner under section 6 of the
Administration Act;
5 "corresponding law" means a law of another State or of a
Territory that corresponds to this Act;
"document" includes any record of information, whether or not
the information is available only after the record is
subjected to an electronic or other process;
10 "firewood" means any wood, including dockings, edgings, mill
ends, offcuts and timber products, that --
(a) is intended for use as firewood; and
(b) is in billets or lengths of not more than 2.4 m;
"inspector" has the same meaning as in the Administration Act;
15 "inspector's mark" means --
(a) the mark approved by the Commissioner for use by
an inspector in verifying or re-verifying a measuring
instrument; or
(b) such a mark under a corresponding law;
20 "licence" means a servicing licence or a public weighbridge
licence in force under Part 6;
"licensee's mark" means --
(a) the mark approved by the Commissioner for use by
or on behalf of the licensee in certifying or
25 re-certifying a measuring instrument; or
(b) such a mark under a corresponding law;
"measurement" means a determination of number or physical
quantity, other than for descriptive purposes only;
"measuring instrument" has the meaning given by the
30 National Measurement Act;
page 3
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 1 Preliminary
s. 3
"National Measurement Act" means the National
Measurement Act 1960 of the Commonwealth as amended
and in force for the time being;
"pack", for the purpose of deciding who packs or has packed an
5 article as a prepacked article, includes authorise, direct,
cause or permit a person to pack an article as a prepacked
article;
"package" includes --
(a) a container, wrapper, confining band or other thing in
10 which an article is packed, or 2 or more articles are
packed, for sale as a single item; and
(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;
15 "pre-packed article" means an article that is packed in advance
ready for sale;
"public weighbridge" means a weighbridge that is open for use
by or on behalf of the public or for the use of which a
charge is made;
20 "purchaser" includes a person purchasing as agent for another
person;
"re-certify" has the meaning given by section 19(2);
"record" includes any document;
"reference standard of measurement" has the same meaning
25 as in the National Measurement Act;
"re-verify" has the meaning given by section 18(2);
"sell" includes --
(a) agree to sell;
(b) offer or expose for the purpose of selling;
30 (c) have in possession for the purpose of selling;
(d) barter or exchange; and
page 4
[Draft Bill for public comment]
Trade Measurement Bill 2004
Preliminary Part 1
s. 3
(e) authorise, direct, cause or permit --
(i) any act referred to in paragraphs (a) to (d) to
be done; or
(ii) anything else that is a sale;
5 "seller" includes a person who sells as agent for another person;
"servicing licence" means a servicing licence in force under
Part 6;
"State primary standard of measurement" has the same
meaning as in the National Measurement Act;
10 "use", in relation to the use of a measuring instrument for trade,
includes --
(a) have the measuring instrument in possession for use;
(b) make the measuring instrument available for use; and
(c) authorise, direct, cause or permit a person to do --
15 (i) an act mentioned in paragraph (a) or (b); or
(ii) anything else that is the use of a measuring
instrument for trade;
"vehicle" includes vessel, aircraft and any other means of
conveying persons or goods;
20 "verify" has the meaning given by section 18(1);
"weighbridge" means a measuring instrument that --
(a) is of a capacity of 3 tonnes or more; and
(b) has a platform by the use of which the measuring
instrument is capable of determining the mass of a
25 vehicle or of livestock;
"weighbridge suitability statement", for a public weighbridge
licence, means a statement, signed by the Commissioner,
that the weighbridge mentioned in the licence is suitable for
use as a public weighbridge.
page 5
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 1 Preliminary
s. 4
(2) References in this Act to making provision in respect of a class
of things include making provision in respect of things that
come within a particular description.
4. Determining certain quantities
5 For the purposes of this Act --
(a) time interval not related to the calendar is a physical
quantity;
(b) time interval related to the calendar is not a physical
quantity; and
10 (c) any packaging or other thing that is not part of an article
is to be disregarded when determining a physical
quantity.
5. References to functions
In this Act --
15 (a) a reference to a function includes a reference to a power,
authority and duty; and
(b) a reference to the exercise of a function includes, where
the function is a duty, a reference to the performance of
the duty.
20 6. Use of measuring instrument for trade -- meaning
(1) For the purposes of this Act, a person uses a measuring
instrument for trade if the person uses it, has it in possession for
use, or makes it available for use, to make a measurement for
the purpose of --
25 (a) determining the consideration in respect of a transaction;
or
(b) determining the amount payable as a tax, rate, toll, duty,
charge or other impost (however described).
page 6
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Trade Measurement Bill 2004
Preliminary Part 1
s. 7
(2) In addition, a person is to be regarded as using a measuring
instrument for trade if --
(a) the person makes the measuring instrument available on
premises for use by a party to a transaction that takes
5 place on those premises; and
(b) the instrument makes a measurement of a kind that is
used for the purpose of determining the consideration in
respect of the transaction even though a measurement
actually made with that measuring instrument is not
10 used for that purpose.
(3) If a party to a transaction makes a measuring instrument
available for use in connection with the transaction, another
party to the transaction who uses the measuring instrument in
that connection is not, despite subsection (1), to be regarded as
15 using the measuring instrument for trade.
7. Application of Act to Crown
(1) This Act binds the Crown in right of the State and, so far as the
legislative power of the Parliament permits, in all its other
capacities.
20 (2) Nothing in this Act renders the Crown liable to be prosecuted
for an offence.
8. Regulations may make this Act inapplicable to certain
matters
The regulations may provide that this Act, or any provision of
25 this Act, does not apply to --
(a) a measurement; or
(b) an instrument used to make a measurement,
of a prescribed kind or for a prescribed purpose.
page 7
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Trade Measurement Bill 2004
Part 1 Preliminary
s. 9
9. Regulations may provide for exemptions from this Act
(1) The regulations may exempt from all or any of the provisions of
this Act --
(a) a specified person, matter, measuring instrument, article
5 or transaction; or
(b) a specified class of persons, matters, measuring
instruments, articles or transactions.
(2) An exemption may be expressed to apply --
(a) generally;
10 (b) for a specified period; or
(c) in specified circumstances or for the purposes of a
specified occasion or event.
(3) The regulations may provide --
(a) for conditions and restrictions subject to which an
15 exemption is to apply; and
(b) that an exemption is of no effect in relation to a person
at any time when any condition or restriction to which it
is subject in the case of that person is not being
complied with by that person.
page 8
[Draft Bill for public comment]
Trade Measurement Bill 2004
Use of measuring instruments for trade Part 2
s. 10
Part 2 -- Use of measuring instruments for trade
10. Measuring instruments used for trade to be marked
(1) A person who uses a measuring instrument for trade commits an
offence unless --
5 (a) the instrument bears an inspector's mark or a licensee's
mark; and
(b) the inspector's mark or a licensee's mark continues in
effect in accordance with section 21(4) or (5), as the
case may be.
10 Penalty:
(a) if the measuring instrument is a weighbridge --
$10 000;
(b) in any other case -- $5 000.
(2) A person who uses a weighbridge for trade commits an offence
15 if the weighbridge does not comply with the requirements of the
regulations concerning weighbridges.
Penalty: $10 000.
(3) This section does not apply to the use of a measuring instrument
to determine a quantity of articles by number of the articles.
20 (4) The regulations may provide for the circumstances in which the
use for trade of a measuring instrument that has been repaired or
modified, or commissioned, is permitted even though it does not
bear an inspector's mark or a licensee's mark, pending its
verification or certification.
page 9
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 2 Use of measuring instruments for trade
s. 11
11. Notice to remedy breach of section 10 may be given
(1) If an inspector finds a measuring instrument that is being used
in contravention of section 10(1) or (2), the inspector may give
to the owner or user of the measuring instrument a written
5 notice --
(a) stating that the measuring instrument --
(i) does not have an inspector's mark or a licensee's
mark on it; or
(ii) for a weighbridge -- does not comply with stated
10 requirements of the regulations relating to
weighbridges;
and
(b) requiring the person to remedy the contravention within
a stated period.
15 (2) The period stated for the purposes of subsection (1)(b) --
(a) is generally to be not more than 28 days; but
(b) may be a longer period, not exceeding 56 days, if the
person concerned satisfies the inspector that special
circumstances apply.
20 (3) The Commissioner may extend the period specified in a notice
given under subsection (1) if the person concerned applies for
an extension before the expiry of the period.
(4) If the person concerned complies with the notice within --
(a) the period allowed under subsection (1)(b); or
25 (b) any extended period allowed under subsection (3),
the person may not be prosecuted for an offence against
section 10 in relation to the circumstances to which the notice
relates.
page 10
[Draft Bill for public comment]
Trade Measurement Bill 2004
Use of measuring instruments for trade Part 2
s. 12
12. Use of prescribed measuring instruments
A person commits an offence if the person uses for trade a
measuring instrument of a prescribed class other than --
(a) for a purpose that is; or
5 (b) in circumstances that are,
prescribed in respect of a measuring instrument of that class.
Penalty:
(a) if the measuring instrument is a weighbridge --
$10 000;
10 (b) in any other case -- $5 000.
13. Use of measuring instruments for pre-packed articles
A person commits an offence if the person uses a measuring
instrument for measuring pre-packed articles on premises in
which articles are pre-packed unless at least one measuring
15 instrument on the premises --
(a) is of an approved pattern;
(b) complies with this Act; and
(c) is suitable for measuring the articles to be pre-packed.
Penalty: $5 000.
20 14. Instruments that are incorrect or unjustly used
(1) A person who uses for trade a measuring instrument that is
incorrect commits an offence.
Penalty: $20 000.
(2) A person who uses for trade a measuring instrument in a manner
25 that is unjust commits an offence.
Penalty: $20 000.
(3) A person whose act or omission causes or is likely to cause a
measuring instrument in use for trade to give a measurement or
page 11
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 2 Use of measuring instruments for trade
s. 15
other information that is incorrect commits an offence if the
person acted or omitted to act --
(a) with the intention of causing that result; or
(b) with reckless indifference to whether that result would
5 be caused.
Penalty: $20 000.
(4) If a person commits an offence against this section, any contract
to which the person is a party that is made by reference to a
measurement to which the offence relates is voidable at the
10 option of another party to the contract.
15. Notice to remedy breach of section 14 may be given
(1) If an inspector finds a measuring instrument being used for
trade that --
(a) is incorrect; or
15 (b) is being used in a way that is unjust,
the inspector may give to the owner or user of the measuring
instrument a written notice --
(c) stating that --
(i) the measuring instrument is incorrect; or
20 (ii) the way the person is using it is unjust;
and
(d) requiring the person to take stated steps to stop
contravening section 14(1) or (2), as the case may be,
within a stated period of not more than 28 days.
25 (2) The Commissioner may extend the period specified in a notice
given under subsection (1) if the person concerned applies for
an extension before the expiry of the period.
(3) If the person complies with the notice within --
(a) the period allowed under subsection (1)(b); or
page 12
[Draft Bill for public comment]
Trade Measurement Bill 2004
Use of measuring instruments for trade Part 2
s. 16
(b) any extended period allowed under subsection (2),
the person may not be prosecuted for an offence against
section 14 in relation to the circumstances to which the notice
relates.
5 16. Supplying incorrect etc. measuring instrument
(1) For the purposes of this section, a measuring instrument is
unacceptable for trade use if --
(a) it is incorrect; or
(b) it is not of an approved pattern.
10 (2) If a measuring instrument that is unacceptable for trade use is
used for trade, a person who sold, leased, hired or lent it to the
person who used it commits an offence.
Penalty: $20 000.
(3) Subject to subsection (4)(b), it does not matter whether the
15 person who used the measuring instrument purchased it or took
it on lease, hire or loan for trade.
(4) It is a defence in proceedings for an offence against this section
if it is established --
(a) that the measuring instrument was not unacceptable for
20 trade use when the defendant parted with possession of
it;
(b) that the defendant did not know and had no reason to
suspect that the measuring instrument would be used for
trade; or
25 (c) that the person who purchased the measuring instrument
or took it on lease, hire or loan was informed in writing
at the time that the measuring instrument was
unacceptable for trade use.
page 13
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 3 Verification and certification of measuring instruments
s. 17
Part 3 -- Verification and certification of
measuring instruments
17. Provision and maintenance of standards
(1) It is a responsibility of the Commissioner to arrange for the
5 provision, custody and maintenance of --
(a) such State primary standards of measurement; and
(b) such classes and denominations of reference standards
of measurement,
as the Commissioner decides are necessary for the purposes of
10 this Act.
(2) Each licensee under a servicing licence is responsible for
providing such classes and denominations, decided by the
Commissioner, of reference standards of measurement as may
be necessary for the exercise of the functions of the licensee
15 under this Act.
18. Verification and re-verification by inspectors
(1) A measuring instrument is verified when it does not already
bear an inspector's mark or a licensee's mark and an
inspector --
20 (a) is satisfied that the instrument complies with the
requirements for verification specified in section 22; and
(b) marks the instrument with the inspector's mark.
(2) A measuring instrument is re-verified when it already bears an
inspector's mark or a licensee's mark and an inspector --
25 (a) is satisfied that the instrument complies with the
requirements for re-verification specified in section 22;
(b) obliterates the inspector's mark or licensee's mark that
the instrument already bears; and
(c) marks the instrument with the inspector's mark.
page 14
[Draft Bill for public comment]
Trade Measurement Bill 2004
Verification and certification of measuring instruments Part 3
s. 19
19. Certification and re-certification by licensees
(1) A measuring instrument is certified when it does not already
bear an inspector's mark or a licensee's mark and the licensee
under a servicing licence or an employee of the licensee --
5 (a) is satisfied that the instrument complies with the
requirements for certification specified in section 22;
(b) issues a certificate to that effect; and
(c) marks the instrument with the licensee's mark.
(2) A measuring instrument is re-certified when it already bears an
10 inspector's mark or a licensee's mark and the licensee under a
servicing licence or an employee of the licensee --
(a) is satisfied that the instrument complies with the
requirements for certification specified in section 22;
(b) issues a certificate to that effect;
15 (c) obliterates any inspector's mark or licensee's mark that
the instrument already bears; and
(d) marks the instrument with the licensee's mark.
20. Provision of information to Commissioner by licensee
(1) When a measuring instrument is certified or re-certified the
20 licensee concerned must give to the Commissioner the
prescribed information relating to --
(a) the measuring instrument; and
(b) the certification or re-certification of the measuring
instrument.
25 (2) The information is to be given under subsection (1) --
(a) in a form approved by the Commissioner; and
(b) within the prescribed period after the certification or
re-certification.
page 15
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Trade Measurement Bill 2004
Part 3 Verification and certification of measuring instruments
s. 21
(3) A person who fails to comply with subsection (1) commits an
offence.
Penalty: $5 000.
21. Duration of verification and certification
5 (1) The regulations may make provision --
(a) for and in relation to the period for which the
verification, re-verification, certification or
re-certification of measuring instruments or classes of
measuring instruments is to have effect; or
10 (b) for the verification, re-verification, certification or
re-certification of particular classes of measuring
instruments to have effect for an indefinite period.
(2) The references in subsection (1)(b) to "re-verification" and
"re-certification" are to a re-verification or re-certification that
15 is in fact carried out even though under regulations referred to in
that subsection the verification or certification of the measuring
instrument concerned had effect for an indefinite period.
(3) The regulations may provide for different periods in respect of
measuring instruments that are in use in different areas of the
20 State.
(4) Unless subsection (4) applies, the verification, re-verification,
certification or re-certification of a measuring instrument has
effect until --
(a) the expiry of the prescribed period applicable to the
25 instrument; or
(b) the inspector's mark or the licensee's mark is obliterated
from the instrument under --
(i) section 27 or 28; or
(ii) section 18 of the Administration Act,
30 whichever first occurs.
page 16
[Draft Bill for public comment]
Trade Measurement Bill 2004
Verification and certification of measuring instruments Part 3
s. 22
(5) If regulations referred to in subsection (1)(b) apply to a
measuring instrument the verification, re-verification,
certification or re-certification of the instrument has effect until
the inspector's mark or the licensee's mark is obliterated from
5 the instrument --
(a) under --
(i) section 27 or 28; or
(ii) section 18 of the Administration Act;
or
10 (b) in the course of the measuring instrument being
re-verified or re-certified as mentioned in subsection (2).
22. Requirements for measuring instruments
The requirements for verification, re-verification, certification
or re-certification of a measuring instrument are as follows --
15 (a) the instrument must operate within the appropriate limits
of error that may be tolerated under the National
Measurement Act at verification;
(b) the instrument must be of an approved pattern;
(c) the instrument must have no graduations in a unit of
20 measurement other than a unit of measurement under the
metric system of measurement (within the meaning of
the National Measurement Act) except --
(i) in circumstances that are prescribed as exempt
from this paragraph; or
25 (ii) in a case determined by the Commissioner to be
a special case.
page 17
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 3 Verification and certification of measuring instruments
s. 23
23. Standards of measurement to be used
(1) The determination of whether the requirements of section 22 for
verification, re-verification, certification or re-certification are
complied with must be made by means of, by reference to, by
5 comparison with or by derivation from --
(a) an appropriate State primary standard of measurement;
(b) an appropriate reference standard of measurement; or
(c) 2 or more standards of measurement each of which is an
appropriate State primary standard of measurement or
10 an appropriate reference standard of measurement.
(2) Subsection (1) does not apply if there is not an appropriate
standard for the measurement in respect of which the measuring
instrument is to be verified, re-verified, certified or re-certified.
24. Responsibilities of Commissioner concerning verification
15 and certification
(1) The Commissioner is responsible for --
(a) providing the means by which measuring instruments
may be verified and re-verified;
(b) establishing and maintaining a register of measuring
20 instruments containing --
(i) the information given to the Commissioner under
section 20; and
(ii) other relevant information;
(c) arranging for audits of the information referred to in
25 paragraph (b) to be carried out to the extent that the
Commissioner thinks fit, including the examination and
testing by inspectors of measuring instruments that have
been certified or re-certified by the holders of servicing
licences ; and
30 (d) otherwise monitoring compliance with this Act by the
holders of servicing licences.
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Verification and certification of measuring instruments Part 3
s. 25
(2) Nothing in subsection (1)(a) affects the power to charge
amounts in accordance with the regulations for or in connection
with the verification and re-verification of measuring
instruments.
5 25. Keeping of register
The register referred to in section 24(1)(b) is to be --
(a) established and maintained --
(i) in such manner and form; and
(ii) with such contents,
10 as the Commissioner thinks fit; and
(b) available for public inspection subject to payment of the
fee, if any, prescribed under the Administration Act.
26. Instruments not covered by this Act
A measuring instrument that is not required by this Act to bear
15 an inspector's mark or a licensee's mark may be examined and
its calibration tested as if there were such a requirement but
only --
(a) for the purposes of another Act; or
(b) if the Commissioner so approves, at the request of the
20 person in possession of the measuring instrument.
27. Rejection of instrument by inspector -- obliteration of
marks
If a measuring instrument that bears an inspector's mark or a
licensee's mark --
25 (a) is examined or tested by an inspector; and
(b) is found not to comply with the requirements specified
in section 22,
the inspector must obliterate any inspector's mark or licensee's
mark that the instrument bears.
page 19
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 3 Verification and certification of measuring instruments
s. 28
28. Duty of persons doing certain work to obliterate marks or
take other action
(1) When a person does anything to a measuring instrument
(including repair, modification and commissioning) that affects
5 its metrological performance, the person must, unless that effect
can be corrected by normal operational adjustment of the
instrument --
(a) obliterate any inspector's mark or licensee's mark that
the instrument bears; or
10 (b) take any other action prescribed by the regulations for
the purposes of this section in relation to measuring
instruments of the class that includes the instrument,
or take action under both paragraphs (a) and (b), as the case may
require.
15 (2) A person who fails to comply with subsection (1) commits an
offence.
Penalty: $20 000.
(3) This section applies whether or not the person is a licensee.
29. Marks on labels affixed to measuring instruments
20 (1) An inspector's mark or a licensee's mark that is made on a label
affixed to a measuring instrument is taken to have been made on
the measuring instrument.
(2) Such a mark is obliterated by being removed or destroyed.
30. Making mark without authority
25 (1) A person who makes an inspector's mark or a licensee's mark
on a measuring instrument commits an offence unless the
person is authorised to do so as provided by this section.
Penalty: $20 000.
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Trade Measurement Bill 2004
Verification and certification of measuring instruments Part 3
s. 31
(2) A person is authorised to make an inspector's mark on a
measuring instrument if the mark is made in the course of
verifying or re-verifying the instrument and the person --
(a) is an inspector; or
5 (b) is acting under the authority and direct supervision of an
inspector.
(3) A person is authorised to make a licensee's mark on a
measuring instrument if the mark is made in the course of
certifying or re-certifying the instrument under the authority
10 conferred by a servicing licence and the person is --
(a) the licensee in respect of whom the mark is approved by
the Commissioner; or
(b) an employee of such a licensee.
(4) A person is authorised to make an inspector's mark or a
15 licensee's mark on a measuring instrument if the person does so
in accordance with the provisions of the regulations as to the
batch testing and marking of measuring instruments.
31. Other offences concerning marks
A person commits an offence if the person --
20 (a) has possession, without authority, of an instrument for
making an inspector's mark or a licensee's mark;
(b) makes on a measuring instrument a mark resembling an
inspector's mark or a licensee's mark intending to create
a false impression that it is an inspector's mark or a
25 licensee's mark;
(c) makes or possesses, without lawful justification or
excuse, an instrument designed to make a mark
resembling an inspector's mark or a licensee's mark; or
(d) sells, or uses for trade, a measuring instrument marked
30 in contravention of paragraph (b) or section 30 knowing
it to have been unlawfully marked.
Penalty: $20 000.
page 21
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Trade Measurement Bill 2004
Part 4 Transactions by measurement
s. 32
Part 4 -- Transactions by measurement
32. Measurement to be open to scrutiny in certain cases
(1) If an article is sold at a price determined by reference to
measurement of the article, the party that determines the price of
5 the article must ensure --
(a) that the measurement is made in the presence of the
other party to the sale; or
(b) that the other party is furnished at or before the time of
delivery of the article with a written statement of the
10 measurement of the article.
(2) If the article is to be delivered at the time and place of
measurement, the party that determines the price of the article
by reference to the measurement must, if the other party to the
sale requests it, measure the article in the presence of that other
15 party.
(3) A person who fails to comply with subsection (1) or (2)
commits an offence.
Penalty: $5 000.
(4) For the purposes of this section, an article is measured in the
20 presence of a person if --
(a) the measuring process is readily visible to the person;
and
(b) any reading or information displayed by the measuring
instrument is readily visible to the person.
25 (5) Unless the regulations otherwise provide, this section does not
apply to the sale of a pre-packed article.
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Trade Measurement Bill 2004
Transactions by measurement Part 4
s. 33
33. Incorrect measurement or price calculation
(1) This section applies to a person who, for the purpose of the sale
of an article at a price determined by reference to the
measurement of the article --
5 (a) operates a measuring instrument to measure the article;
or
(b) decides the measurement of the article.
(2) For this section --
(a) a reference to the person's measurement of the article is
10 a reference to the person's operation of the measuring
instrument or measurement of the article as mentioned
in subsection (1); and
(b) it does not matter whether the person's measurement of
the article is for the article's sale by the person or by
15 anyone else at any time.
(3) For any sale of the article at any time, the person commits an
offence if, because of the person's measurement of the article --
(a) the person directly or indirectly misleads any party to
the sale as to --
20 (i) the measurement of the article; or
(ii) the calculation of the price,
to the party's detriment; or
(b) the price paid or required to be paid is not the price
correctly determined by reference to the correct
25 measurement of the article and as a result any party to
the sale suffers or would suffer detriment.
Penalty: $20 000.
34. Variation of quantity ordered
If the quantity of an article sold is less than the quantity stated in
30 the offer to purchase, the seller commits an offence unless the
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 4 Transactions by measurement
s. 35
seller informs the purchaser of that fact before completion of the
sale.
Penalty: $20 000.
35. Special provisions for sale of meat
5 (1) In this section --
"killed animal" includes --
(a) fish, other than shellfish, that has been caught; and
(b) killed poultry;
"meat" means so much of a killed animal as is ordinarily sold
10 for human consumption (whether or not after being
subjected to a process of any kind) but does not include --
(a) the whole or any part of a rabbit;
(b) heads, feet, hearts, lights, kidneys, brains or
sweetbread; or
15 (c) meat packed as a pre-packed article.
(2) A person who sells meat otherwise than at a price determined by
reference to the mass of the meat commits an offence.
Penalty: $5 000.
(3) If the article sold as referred to in section 32 is meat consisting
20 of more than one cut, a written statement of measurement is not
sufficient to comply with section 32(1)(b) unless it specifies the
mass of each cut.
(4) A person who offers or exposes a quantity of meat for sale at a
marked price for that quantity commits an offence unless --
25 (a) the mass of the meat is also marked in the same manner
as, and as prominently as, the price marking; and
(b) the price per kilogram of the meat is also indicated as
prominently as the price marking by --
(i) a marking on the meat; or
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Transactions by measurement Part 4
s. 36
(ii)another statement in letters and figures not less
than 10 mm high that clearly refers to the meat.
Penalty: $5 000.
(5) This section does not apply to the sale (other than for the
5 purpose of resale) of cooked meat sold on the premises on
which it is cooked.
36. Special provision for sale of firewood by volume
To apply section 33 to a sale of firewood by volume, the volume
stated for the sale of the firewood (the "stated volume") is
10 taken to comply with that section if, when the firewood is
stacked with as few gaps as practicable, the volume worked out
using the stack's dimensions is at least the stated volume.
37. Articles required to be sold by specific measurement
(1) This section applies to an article, or to an article of a class,
15 prescribed for the purposes of this section.
(2) A person who sells a quantity of an article to which this section
applies commits an offence unless the sale is at a price
determined by reference to a measurement of quantity in the
unit of measurement required by the regulations.
20 Penalty: $5 000 (or such lesser penalty as may be provided by
the regulations in respect of the article concerned).
(3) This section does not apply to the sale of a pre-packed article.
38. Presumptions concerning mass of vehicles
(1) For the purpose of determining --
25 (a) the consideration in respect of a transaction; or
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 4 Transactions by measurement
s. 38
(b) the amount payable as a tax, rate, toll, duty, charge or
other impost (however described),
it is to be conclusively presumed that --
(c) the mass of a vehicle determined by direct measurement
5 of the mass of the vehicle is more accurate than the mass
determined by end-and-end measurement of that mass;
and
(d) the mass of a railway vehicle determined when the
vehicle is stationary is more accurate than the mass
10 determined when the vehicle is in motion.
(2) In this section --
"end-and-end measurement" means the determination of a
measurement relating to a vehicle (whether loaded or not)
by adding together separate measurements of the mass
15 supported singly or in combination by the different axles of
the vehicle, those separate measurements having been
determined by separate operations of a weighbridge.
page 26
[Draft Bill for public comment]
Trade Measurement Bill 2004
Pre-packed articles Part 5
Requirements for packaging and sale of pre-packed articles Division 1
s. 39
Part 5 -- Pre-packed articles
Division 1 -- Requirements for packaging and sale of
pre-packed articles
39. Requirements as to packaging of pre-packed articles
5 (1) A person who packs an article as a pre-packed article commits
an offence unless the package complies with the provisions of
the regulations made for the purposes of this section as to the
packaging of such an article when it is packed.
Penalty: $10 000.
10 (2) A person who sells a pre-packed article commits an offence
unless the package complies with the provisions of the
regulations made for the purposes of this section as to the
packaging of such an article when it is sold.
Penalty: $10 000.
15 (3) The regulations may make provision --
(a) restricting the quantities in which articles may be packed
or sold as pre-packed articles; and
(b) requiring the marking on the package containing a
pre-packed article when it is packed or sold of --
20 (i) the name and address of the person who packed
the article or on whose behalf it was packed;
(ii) the measurement of the article and other
information concerning the measurement of the
article; and
25 (iii) the price of the article and other information
concerning the price of the article.
(4) This section does not apply to the sale of a pre-packed article by
a person if the sale is authorised under Division 2.
page 27
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 5 Pre-packed articles
Division 1 Requirements for packaging and sale of pre-packed articles
s. 40
40. Defences concerning packaging of pre-packed articles
(1) It is a defence in proceedings under section 39 against a person
who packs an article if it is established --
(a) (to the extent that the proceedings concern the
5 requirement that a name or address be marked on the
package) that the article was packed on premises for sale
on those premises to a person for consumption or use
and not for resale; or
(b) (to the extent that the proceedings are not so concerned)
10 that the article was packed with the intention that it be
exported from Australia and the package was marked to
give a clear indication to that effect.
(2) It is a defence in proceedings under section 39 against a person
who sells a pre-packed article (to the extent that the proceedings
15 concern the requirement that a name or address be marked on
the package) if it is established --
(a) that the pre-packed article was packed outside Australia;
or
(b) that the pre-packed article was sold on the premises on
20 which it was packed and was so sold for consumption or
use and not for resale.
(3) It is a defence in proceedings under section 39 against a person
who sells a pre-packed article if the seller's general defence
under this Division applies.
25 41. Restrictions on use of certain expressions on packages
(1) A person who packs an article as a pre-packed article or sells a
pre-packed article commits an offence if, except as authorised
by the regulations, there is marked on the package --
(a) the expression "net mass when packed" or "net mass at
30 standard condition", or any other words that have a
similar meaning to those words; or
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Pre-packed articles Part 5
Requirements for packaging and sale of pre-packed articles Division 1
s. 42
(b) any other expression directly or indirectly relating to the
measurement of the article or the size of the package
that is prescribed by the regulations (including by being
specified or described by reference to its meaning or
5 effect) as a prohibited or restricted expression.
Penalty: $5 000.
(2) It is a defence in proceedings under this section against a person
who sells a pre-packed article if it is established that the seller's
general defence under this Division applies.
10 (3) This section does not apply to the sale of a pre-packed article by
a person if the sale is authorised under Division 2.
42. Incorrect pricing of pre-packed article
(1) A person who sells a pre-packed article at a specified price for
each unit of measurement of the article commits an offence if
15 the price of the pre-packed article exceeds the price correctly
computed by reference to --
(a) the measurement of the article (without any packaging
or other thing that is not part of the article); and
(b) the stated price for each unit of measurement.
20 Penalty: $20 000.
(2) If the measurement of a pre-packed article is stated by reference
to a minimum measurement, any amount by which the actual
measurement exceeds that stated minimum measurement is to
be disregarded in calculating the correct price for the purposes
25 of subsection (1).
(3) This section applies whether or not the price of the article and
the price for each unit of measurement of the article --
(a) is required by this Act to be marked on the package
containing the article; or
30 (b) is in fact so marked.
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 5 Pre-packed articles
Division 1 Requirements for packaging and sale of pre-packed articles
s. 43
(4) It is a defence in proceedings under this section if it is
established that the seller's general defence under this Division
applies.
43. Offence of packing or selling short measure
5 (1) If the actual measurement of the quantity of a pre-packed article
is less than the measurement or minimum measurement marked
on the package (whether or not marked for the purpose of
complying with this Act) --
(a) the person who packed the article commits an offence;
10 and
(b) a person who sells the article commits an offence.
Penalty: $20 000.
(2) If more than one measurement is marked on a package, the
prosecution is entitled to rely on any of those measurements to
15 establish an offence against this section unless the context in
which the measurement appears indicates that it is not to be
taken to be a representation as to the measurement of the
quantity of the article.
(3) The marking of a measurement on a package must make such
20 allowance for any likely reduction over time in the actual
measurement of the article as may be necessary to prevent the
commission of an offence under this section in relation to the
article.
(4) A measurement or minimum measurement marked on or near a
25 receptacle containing a pre-packed article so as to constitute a
representation as to the measurement or minimum measurement
of the quantity of the article is, for the purposes of this section,
to be regarded as being marked on the package.
page 30
[Draft Bill for public comment]
Trade Measurement Bill 2004
Pre-packed articles Part 5
Requirements for packaging and sale of pre-packed articles Division 1
s. 44
44. Extent of deficiency necessary to constitute short measure
(1) For the purposes of section 43, the actual measurement of a
pre-packed article (the "offending article") is not to be
regarded as being less than a marked measurement unless --
5 (a) the deficiency in actual measurement of the offending
article is greater than the deficiency permitted by the
regulations for the article concerned; or
(b) the deficiency in the average of the actual measurements
of a number of like articles (found in the same place and
10 at the same time as the offending article is found) is
greater than the deficiency permitted by the regulations
for the article concerned.
(2) The regulations may --
(a) make provision with respect to the method to be used in
15 determining the average measurement under
subsection (1)(b) and the number of like articles to be
measured for that purpose;
(b) provide that the deficiency permitted in the average of
measurements determined under subsection (1)(b) is nil;
20 and
(c) make different provision according to how long after
packaging of the article the measurements concerned are
made.
(3) This section does not apply in a case where the number of like
25 articles (found in the same place and at the same time as the
offending article is found and available for measurement by an
inspector) is not sufficient for the purposes of a determination
under subsection (1)(b) in accordance with the regulations.
page 31
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 5 Pre-packed articles
Division 1 Requirements for packaging and sale of pre-packed articles
s. 45
45. Defences concerning short measure
(1) It is a defence in proceedings under section 43 against a person
who packs a pre-packed article if it is established that the
deficiency in measurement --
5 (a) 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
measurement marked on the package; or
(b) resulted from something that the defendant could not
10 reasonably have foreseen or for which the defendant
could not reasonably have made allowance.
(2) It is a defence in proceedings under section 43 against a person
who sells a pre-packed article if it is established --
(a) that the defendant --
15 (i) obtained the article from another person within
Australia who packed the article or sold it to the
defendant; and
(ii) identified that other person to an inspector;
(b) that the package containing the article was marked
20 apparently as required by this Act when the defendant
received it; and
(c) that the defendant sold the article in the same state as it
was in when the defendant obtained it.
(3) The defence under subsection (2) is not available to a defendant
25 in relation to the sale of a pre-packed article (the "offending
article") if --
(a) a finding by an inspector in relation to another
pre-packed article sold by the defendant indicated that
its sale would have been an offence under section 43 had
30 that defence not been available;
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Pre-packed articles Part 5
Requirements for packaging and sale of pre-packed articles Division 1
s. 46
(b) that other pre-packed article was of the same kind, and
had the same measurement marked on the package, as
the offending article; and
(c) the inspector informed the defendant of that finding
5 before the sale of the offending article,
unless the defendant establishes that the offending article was
not in the defendant's possession when the defendant was
informed of the inspector's finding.
(4) It is not a defence in proceedings under section 43 merely to
10 establish that the deficiency in measurement did not exist when
the article was packed or when the package was marked.
46. Seller's general defence
If a provision of this Division provides that it is a defence to
specified proceedings if it is established that the seller's general
15 defence under this Division applies, it is a defence to those
proceedings if it is established that --
(a) the defendant did not pack or alter the packaging of the
article; and
(b) the offence resulted from something --
20 (i) that the defendant could not reasonably have
foreseen; or
(ii) for which the defendant could not reasonably
have made allowance.
47. Employee's general defence
25 It is a defence in proceedings against a person for an offence
under this Division for packing an article as a pre-packed article
if the person establishes that the person packed the article as an
employee only.
page 33
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 5 Pre-packed articles
Division 2 Permit to sell certain pre-packed articles
s. 48
48. Regulations concerning methods of measurement
For the purposes of this Division --
(a) the measurement of a pre-packed article is to be
determined in accordance with any applicable methods
5 and procedures provided for in the regulations; and
(b) a measurement so determined is to be regarded as the
measurement of the article.
Division 2 -- Permit to sell certain pre-packed articles
49. Commissioner may issue permits
10 (1) The Commissioner may issue to a person a permit authorising
the sale of a pre-packed article the sale of which would
otherwise be an offence under section 39 or 41.
(2) The issue of a permit operates to authorise such a sale, in the
circumstances and subject to any conditions specified in the
15 permit, by --
(a) the permit holder, but only while the permit is in force;
and
(b) any other person, whether or not the permit is in force, if
the permit holder sells the article while the permit is in
20 force,
so long as, at the time of sale, the seller gives to the purchaser a
copy of the permit concerned.
(3) The requirement under subsection (2) that the seller give the
purchaser a copy of the permit does not apply if the sale to the
25 purchaser is not for the purposes of resale.
page 34
[Draft Bill for public comment]
Trade Measurement Bill 2004
Pre-packed articles Part 5
Permit to sell certain pre-packed articles Division 2
s. 50
50. Requirements for issue
The Commissioner may issue a permit in relation to an article
only if the Commissioner is satisfied that --
(a) when packed, the article was intended for export from
5 Australia and that it would be reasonable for its sale to
be permitted;
(b) the article was packed outside Australia and was
imported in such circumstances that it would be
reasonable for its sale to be permitted; or
10 (c) the article was packed in Australia and that, having
regard to the date of its packing and any other
circumstances considered by the Commissioner to be
relevant, it would be reasonable for its sale to be
permitted.
15 51. Cancellation of permits
The Commissioner may, at any time, cancel a permit by notice
in writing served on the holder.
52. Recognition of permits under corresponding laws
Except where the Minister by notice published in the Gazette
20 otherwise provides in a particular case or class of cases, a
permit that --
(a) is the equivalent of a permit under this Division; and
(b) is in force under a corresponding law,
has effect within the State as if it were a permit under this
25 Division.
page 35
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 6 Licensing
Division 1 Requirements for licences
s. 53
Part 6 -- Licensing
Division 1 -- Requirements for licences
53. Requirement for servicing licence
(1) A person commits an offence if the person --
5 (a) tests a batch of measuring instruments; or
(b) certifies or re-certifies or purports to certify or re-certify
a measuring instrument,
unless the person is --
(c) the holder of a servicing licence; or
10 (d) an employee of the holder of a servicing licence.
Penalty: $20 000.
(2) A person who is --
(a) the holder of a servicing licence; or
(b) an employee of the holder,
15 commits an offence if the person does not comply with the
conditions of the licence.
Penalty: $20 000.
(3) It is a defence in proceedings against an employee of a licensee
in respect of a failure to comply with a condition of a servicing
20 licence if the employee establishes that the licensee failed to
make the employee aware of the condition.
54. Requirement for public weighbridge licence
(1) A person who makes a weighbridge available as a public
weighbridge commits an offence unless the person --
25 (a) is the holder, or an employee of the holder, of a public
weighbridge licence; and
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Licensing Part 6
Granting of licences Division 2
s. 55
(b) does so in accordance with the conditions of the licence
and the requirements of this Act.
Penalty: $20 000.
(2) It is a defence in proceedings against an employee of a licensee
5 in respect of a failure to comply with a condition of a public
weighbridge licence if the employee establishes that the licensee
failed to make the employee aware of the condition.
(3) The regulations may provide that the use of a weighbridge in a
specified manner that would otherwise be considered to be use
10 as a public weighbridge is not to be considered to be use as a
public weighbridge for the purposes of this section.
Division 2 -- Granting of licences
55. Application for licence
(1) On application made in a form approved by the Commissioner,
15 the Commissioner may grant --
(a) a servicing licence; or
(b) a public weighbridge licence for a single weighbridge.
(2) However, if 2 or more persons who carry on business together
as partners join in making an application, the Commissioner
20 may only grant a single licence to the joint applicants.
(3) If the Commissioner grants a licence to a partnership, the
licence must state --
(a) the names of all the partners; and
(b) if the partnership has a registered business name, the
25 registered business name.
(4) Each partner stated in the licence, including the licence as
amended under section 69, is taken to be a holder of the licence.
(5) An application under this section must be accompanied by the
application fee prescribed under the Administration Act.
page 37
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 6 Licensing
Division 2 Granting of licences
s. 56
(6) The Commissioner may require an applicant to provide
specified particulars (in writing) and documents relating to the
application, and may refuse the application if they are not
provided.
5 56. Grounds for refusal
(1) An application for a licence must be refused if the applicant --
(a) is a natural person who has not reached the age of
18 years;
(b) is a person whose licence under this Act or a
10 corresponding law is suspended;
(c) is a person disqualified under this Act or a
corresponding law from holding a licence;
(d) is not a person likely to carry on the activities of a
licensee honestly and fairly; or
15 (e) is in any other way not a fit and proper person to be a
licensee.
(2) If the applicant is a partnership, subsection (1) applies to each
member of the partnership.
(3) Also, for a public weighbridge licence application for a
20 weighbridge, the Commissioner must refuse the application if
the Commissioner considers the weighbridge is not suitable for
use as a public weighbridge.
(4) Without limiting the generality of subsection (1)(e), the
Commissioner may, in determining whether the applicant is not
25 a fit and proper person to be a licensee, have regard to whether
the applicant or, if the applicant is a body corporate, any person
concerned in the management of the applicant --
(a) has, during the period of 10 years that preceded the
making of the application --
30 (i) been convicted of; or
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Licensing Part 6
Granting of licences Division 2
s. 57
(ii) served any part of a term of imprisonment for,
an offence in the State or elsewhere involving fraud or
dishonesty;
(b) was, when the application was made, the subject of a
5 charge pending in relation to such an offence;
(c) has, at any time, been convicted of an offence against
this Act or a corresponding law; or
(d) has been refused a licence under a corresponding law.
(5) If an application for a licence is refused, the Commissioner is to
10 notify the applicant of the grounds for the refusal.
57. Licensee to be allotted a mark
When the Commissioner issues a servicing licence, the
Commissioner must approve a mark for use by the licensee and
employees of the licensee when certifying or re-certifying
15 measuring instruments.
58. Register of licences
(1) The Commissioner must keep a register of the prescribed
particulars relating to licences in the manner and form the
Commissioner thinks fit.
20 (2) The register referred to in subsection (1) is to be available for
public inspection subject to payment of the fee, if any,
prescribed under the Administration Act.
59. Conditions may be imposed on licences
(1) The Commissioner may impose conditions --
25 (a) when a licence is granted; or
(b) at any time after granting a licence,
and may vary or revoke any such condition.
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Part 6 Licensing
Division 2 Granting of licences
s. 60
(2) Without limiting the generality of subsection (1), such a
condition may restrict to a specified class or specified classes
the measuring instruments that may be certified or re-certified
under the authority of a servicing licence.
5 (3) After granting a licence, the Commissioner must not impose or
vary a condition of the licence unless the licensee has first been
given an opportunity to make oral or written submissions
concerning the imposition or variation of the condition.
(4) The imposition or variation of a condition under this section
10 does not take effect until notice of it has been served on the
licensee.
60. Conditions on all servicing licences
A servicing licence is subject to the following conditions --
(a) if the licensee is a natural person -- a condition that the
15 licensee is not personally to certify or re-certify a
measuring instrument unless the licensee is competent to
do so;
(b) a condition that the licensee must not employ a person to
certify or re-certify a measuring instrument unless the
20 person employed is competent to do so;
(c) a condition that the licensee or an employee of the
licensee must not mark a measuring instrument with the
licensee's mark without first obliterating any inspector's
mark or licensee's mark that the instrument already
25 bears;
(d) a condition that any obliteration by the licensee or an
employee of the licensee of an inspector's mark or a
licensee's mark without certification or re-certification
of the measuring instrument must be reported in writing
30 to the Commissioner within 14 days;
(e) a condition that if the licensee or an employee of the
licensee determines, when examining or testing a
measuring instrument, that the instrument could not then
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Licensing Part 6
Granting of licences Division 2
s. 61
be certified or re-certified the licensee must report the
fact in writing to the Commissioner within 14 days
unless a report of the matter is also required under
paragraph (d);
5 (f) a condition that the licensee or an employee of the
licensee must not certify or re-certify a measuring
instrument without using such equipment as is specified
by the Commissioner when granting the licence;
(g) a condition that if the licensee's mark is made by an
10 employee of the licensee, the licensee must at all times
be able from that mark to identify the employee to the
Commissioner;
(h) such other conditions as may be prescribed.
61. Conditions on all public weighbridge licences
15 (1) A public weighbridge licence is subject to the following
conditions --
(a) a condition that the licensee must not operate the
weighbridge mentioned in the licence unless the licence
or a copy of the licence has a weighbridge suitability
20 statement written on it that is in force;
(b) a condition that the weighbridge suitability statement is
in force only until the end of --
(i) the period for which the fee payable in relation to
the statement has been paid; or
25 (ii) the period as extended under section 64;
(c) a condition that the weighbridge mentioned in the
licence is to be located at the place stated in the licence;
(d) a condition that the licensee must ensure that the
weighbridge mentioned in the licence is not operated by
30 any person other than the licensee or an employee of the
licensee;
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[Draft Bill for public comment]
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Part 6 Licensing
Division 2 Granting of licences
s. 62
(e) if the licensee is a natural person -- a condition that the
licensee must not personally operate a public
weighbridge unless the licensee is competent to do so;
(f) a condition that the licensee must not employ a person to
5 operate a public weighbridge unless the person is
competent to do so;
(g) such other conditions as may be prescribed.
(2) The condition specified in subsection (d) does not apply to the
operation of a weighbridge if --
10 (a) the weighbridge is approved by the Commissioner for
direct operation by the public; and
(b) the licensee ensures that the weighbridge is operated
otherwise than in accordance with that condition only
during such periods and in accordance with such
15 conditions as may be specified in the approval.
62. Conditions need not be endorsed on licence
A condition of a licence has effect whether or not it is endorsed
on the licence.
63. Periodic licence fee
20 (1) The fee prescribed under the Administration Act for a licence is
payable to the Commissioner --
(a) with the application for the licence; and
(b) while the licence is in force or under suspension -- not
later than one month after the commencement of each
25 period for which the regulations under the
Administration Act require the fee to be paid.
(2) The Commissioner may extend and further extend the time for
payment of the licence fee.
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Licensing Part 6
Granting of licences Division 2
s. 64
64. Continuation of weighbridge suitability statement in
particular circumstances
(1) This section applies if --
(a) before the end of the period for which a weighbridge
5 suitability statement is in force for a particular
weighbridge, a licensee pays the fee for a new
weighbridge suitability statement; and
(b) the Commissioner has not caused the weighbridge to be
examined for the purpose of providing a new
10 weighbridge suitability statement.
(2) The licensee may continue to operate the weighbridge under the
licence until the Commissioner --
(a) issues to the licensee a copy of the public weighbridge
licence for the weighbridge with a weighbridge
15 suitability statement on it in force for the period for
which the fee payable in relation to the statement has
been paid; or
(b) decides the weighbridge is no longer suitable for use as
a public weighbridge and gives written notice of the
20 decision to the licensee under section 65(2).
65. If weighbridge no longer suitable for use as a public
weighbridge
(1) This section applies if the Commissioner decides a public
weighbridge is no longer suitable for use as a public
25 weighbridge.
(2) The Commissioner may give the licensee a notice stating --
(a) why the Commissioner considers the public weighbridge
is no longer suitable for use as a public weighbridge;
and
30 (b) that the licensee may make written representations to the
Commissioner within 28 days stating why the licensee
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 6 Licensing
Division 2 Granting of licences
s. 66
considers the public weighbridge licence for the public
weighbridge should not be cancelled.
(3) After considering any representations made to the
Commissioner, the Commissioner may --
5 (a) decide to take no further action against the licensee; or
(b) cancel the public weighbridge licence for the public
weighbridge.
(4) The Commissioner must give the licensee a written notice
stating --
10 (a) the decision and the reason for the decision; and
(b) that if the Commissioner cancels the licensee's licence,
the licensee may apply for a review of the decision
under section 76(f).
(5) This section does not limit section 10.
15 66. Cancellation for non-payment of licence fee
(1) If the licence fee is not paid, the Commissioner may serve on
the licensee a notice in writing to the effect that the licence will
be cancelled if the fee is not paid within 14 days after the notice
is served.
20 (2) The Commissioner may cancel the licence if the fee is not paid
within that time.
67. Surrender etc. of licence
(1) A licensee may surrender the licence by notice in writing given
to the Commissioner.
25 (2) Subject to section 69, a licence is not transferable.
68. Effect of relocation of licensed weighbridge
(1) This section applies if a licensee moves a weighbridge from the
location at which it was inspected before the issue of the
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Licensing Part 6
Granting of licences Division 2
s. 69
weighbridge suitability statement for the weighbridge to another
location at the place stated in the licence.
(2) The public weighbridge licence for the weighbridge is taken to
have been surrendered under section 67.
5 69. Application to change licence holders due to change of
partnership
(1) This section applies if --
(a) a partnership is the holder of a licence; and
(b) there is or is proposed to be a change to the membership
10 of the partnership (the "change") with at least one
partner before the change continuing as a partner after
the change.
(2) The partnership may apply to the Commissioner to amend the
licence to state the partners who are or will be the partners after
15 the change.
(3) To the extent the change consists of a person ceasing to be a
partner, the Commissioner must grant the application and
amend the licence to remove the name of the partner from the
licence.
20 (4) To the extent the change involves a new partner being admitted
to the partnership --
(a) the application must include the information about the
new partner that the new partner would have to give to
the Commissioner when applying for a licence of that
25 kind; and
(b) after considering the application, the Commissioner
must --
(i) grant the application and amend the licence to
include the name of the new partner; or
30 (ii) refuse the application under subsection (5).
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 6 Licensing
Division 2 Granting of licences
s. 70
(5) The Commissioner must refuse an application to which
subsection (4) applies if it would be refused under section 56
were it an application by the new partner for the licence.
(6) If the Commissioner refuses the application, the Commissioner
5 must notify the partnership --
(a) of the grounds for the refusal; and
(b) the right to apply for a review of the decision under
section 76(a)(ii).
(7) If an application is granted relating to a change that is to happen
10 at a later time, the Commissioner must amend the licence in
accordance with the application from the later time.
(8) To amend a licence under this section, the Commissioner
may --
(a) endorse the amendment on the licence held by the
15 partnership; or
(b) replace the licence with a licence stating the
membership of the partnership after the change.
(9) An application must be accompanied by the application fee
prescribed under the Administration Act.
20 70. Effect on licence of application under section 69
(1) This section applies if a change within the meaning of
section 69 happens --
(a) not more than 28 days before an application under the
section is made; or
25 (b) after the application is made but before it is decided.
(2) From the day of the change, the relevant licence is taken to be
held by the partnership as it exists after the change, and each
partner is taken to be a holder of the licence, until --
(a) the application is granted; or
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Licensing Part 6
Granting of licences Division 2
s. 71
(b) if the application is refused --
(i) the time for making the application under
section 76 for a review of the refusal has expired
without an application for review being duly
5 made; or
(ii) an application so made has been unsuccessful,
whichever occurs first.
(3) For the purposes of subsection (2)(b) an application for review
is unsuccessful if --
10 (a) the application results in the refusal of the application
under section 69 being confirmed; or
(b) the application for review is dismissed or struck out.
71. Application to amend condition of licence
(1) A licensee under a servicing licence may apply to the
15 Commissioner for an amendment to a condition of the licence of
a kind mentioned in section 59(2).
(2) The Commissioner may amend or refuse to amend the licence.
(3) An application must be accompanied by the application fee
prescribed under the Administration Act.
20 72. Order preventing employment of certain persons
(1) The Commissioner may by order in writing direct that --
(a) a specified person --
(i) is not to be employed to certify or re-certify any
measuring instrument;
25 (ii) is not to be employed to certify or re-certify a
specified class or specified classes of measuring
instruments; or
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 6 Licensing
Division 2 Granting of licences
s. 72
(iii) is to be employed to do so only in compliance
with specified conditions;
or
(b) a specified person --
5 (i) is not to be employed to perform duties relating
to the operation of any public weighbridge;
(ii) is not to be employed to perform duties relating
to the operation of a specified class or specified
classes of public weighbridges; or
10 (iii) is to be employed to do so only in compliance
with specified conditions.
(2) The Commissioner must not make such an order unless satisfied
that it is necessary or desirable because of the person's --
(a) lack of competency; or
15 (b) lack of fitness in any other respect,
to exercise the functions concerned.
(3) If the Commissioner makes an order under this section, the
Commissioner must --
(a) serve a copy of the order, together with a statement of
20 the reasons for making the order, on the person to whom
it relates (if the person's whereabouts are known to the
Commissioner); and
(b) serve a copy of the order on any licensee that the
Commissioner knows is employing that person when the
25 order is made.
(4) It is a condition of a licence that the licensee must not employ a
person in contravention of an order in force under this section.
(5) It is the responsibility of a licensee to make due enquiry of the
Commissioner before employing a person to establish whether
30 there is an order in force under this section in respect of the
person.
page 48
[Draft Bill for public comment]
Trade Measurement Bill 2004
Licensing Part 6
Disciplinary action against licensees Division 3
s. 73
Division 3 -- Disciplinary action against licensees
73. Grounds for disciplinary action
(1) Each of the following constitutes grounds for disciplinary action
against a licensee --
5 (a) the licensee has failed to comply with a provision of this
Act or a corresponding law or with a condition of the
licence;
(b) the licensee has been found guilty of an offence
involving fraud or dishonesty punishable on conviction
10 by imprisonment for 3 months or more;
(c) the activities to which the licence relates are being
carried on in a dishonest or unfair manner;
(d) the Commissioner would be required by section 56 to
refuse an application for a licence by the licensee (if the
15 licensee were not already a licensee);
(e) the licensee --
(i) has been refused a licence under a corresponding
law; or
(ii) is the subject of disciplinary action under the
20 provision of a corresponding law that
corresponds to section 75;
(f) the licensee is not, for any other reason, a fit and proper
person to continue to hold a licence.
(2) A ground for disciplinary action under subsection (1) exists in
25 relation to a licensee who is a partnership if the ground exists in
relation to any one or more of the members of the partnership.
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Trade Measurement Bill 2004
Part 6 Licensing
Division 3 Disciplinary action against licensees
s. 74
74. Notice to licensee of grounds for disciplinary action
(1) If the Commissioner reasonably suspects that there are grounds
for disciplinary action against a licensee, the Commissioner may
serve a written notice on the licensee --
5 (a) giving full particulars of those grounds, including
particulars of the reasons for any general ground; and
(b) calling on the licensee to show cause within a
reasonable period specified in the notice why the
Commissioner should not take disciplinary action on
10 those grounds against the licensee under section 75.
(2) A licensee on whom such a notice is served may, within the
period allowed by the notice, make written or oral submissions
to the Commissioner on the matters concerned.
75. Taking of disciplinary action
15 (1) If, after consideration of any submissions made by the licensee
within the period allowed, the Commissioner is satisfied that
grounds for disciplinary action against a licensee have been
established, the Commissioner may --
(a) reprimand the licensee;
20 (b) impose a condition on the licence;
(c) suspend the licence for up to 12 months;
(d) act under any combination of 2 or more of
paragraphs (a), (b) and (c); or
(e) cancel the licence and disqualify the former licensee
25 permanently or for a specified period from holding a
licence.
(2) The Commissioner takes any such action by serving written
notice of it on the licensee but any action taken is stayed --
(a) until the end of the period allowed for the making of an
30 application under section 76 for a review of the decision
to take the action; and
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Trade Measurement Bill 2004
Licensing Part 6
Review of decisions Division 4
s. 76
(b) if such an application is made, but subject to any order
of the State Administrative Tribunal, until --
(i) the application results in the disciplinary action
being confirmed; or
5 (ii) the application is dismissed or struck out.
Division 4 -- Review of decisions
76. Right to have certain decisions reviewed
A person may apply to the State Administrative Tribunal for a
review of a decision of the Commissioner --
10 (a) to refuse the person's application for --
(i) a licence; or
(ii) an amendment of a licence;
(b) to make an order under section 72 in respect of the
person;
15 (c) to impose or vary a condition to which the person's
licence is to be subject;
(d) to reprimand the person as a licensee;
(e) to suspend the person's licence;
(f) to cancel a public weighbridge licence held by the
20 person because the public weighbridge mentioned in the
licence is no longer suitable for use as a public
weighbridge; or
(g) to cancel the person's licence and disqualify the former
licensee from holding a licence.
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Trade Measurement Bill 2004
Part 7 Inspectors
s. 77
Part 7 -- Inspectors
77. Powers of entry etc.
(1) An inspector may exercise any power conferred by
subsection (2) for the purpose of --
5 (a) investigating an offence against this Act that the
inspector reasonably believes has been committed; or
(b) exercising any function of an inspector under this Act.
(2) An inspector may at any reasonable time --
(a) enter and search a building, place or vehicle, apparently
10 in use for the carrying on of a business;
(b) require a person in charge of such a vehicle to stop it, or
move it a reasonable distance to a place specified by the
inspector, to enable the inspector --
(i) to enter and search it; or
15 (ii) to weigh or measure it and its load;
and
(c) require a person in possession of a pack, basket or other
receptacle containing articles that are apparently for sale
to permit the inspector to examine its contents.
20 (3) An inspector is not entitled to enter a part of premises used for
residential purposes, except --
(a) with the consent of the occupier; or
(b) under the authority of a search warrant.
78. Powers in relation to measuring instruments
25 (1) If an inspector reasonably believes that a measuring instrument
is used for trade, the inspector may --
(a) examine and test the instrument;
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Inspectors Part 7
s. 79
(b) require a person --
(i) who is in the building, place or vehicle where the
instrument is found; or
(ii) who the inspector reasonably believes may be
5 able to provide relevant information,
to answer questions, or produce records under the
person's control, concerning the instrument or its use;
and
(c) make copies of or take extracts from records so
10 produced,
and, if the inspector reasonably believes that an offence against
this Act has been committed involving the measuring
instrument, may seize and retain the instrument and any records
so produced.
15 (2) Also, the inspector may record the details of any measuring
instrument that is examined or tested under this section in the
way the inspector considers appropriate, including by filming or
photographing.
79. Powers in relation to articles
20 (1) If an inspector reasonably believes that an article is for sale by
reference to the measurement of the article, or is a pre-packed
article, the inspector may --
(a) examine and measure the article or a package containing
the article;
25 (b) break open a package containing the article and remove
the article from it;
(c) require a person --
(i) who is in the building, place or vehicle where the
article is found; or
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Trade Measurement Bill 2004
Part 7 Inspectors
s. 80
(ii) who the inspector reasonably believes may be
able to provide relevant information,
to answer questions, or produce records under the
person's control, concerning the article; and
5 (d) make copies of or take extracts from records so
produced.
(2) If an inspector reasonably believes that an offence against this
Act has been committed involving an article, the inspector
may --
10 (a) seize and retain the article, samples of the article, any
package containing the article and any records
concerning the article or package;
(b) seize and retain any number of packages required to
follow the prescribed procedures and make the
15 prescribed determinations as a condition precedent to
the bringing of proceedings for any offence concerned;
and
(c) measure anything seized, whether at the time and place
of seizure or later and elsewhere.
20 (3) Measurement of an article or sample may be carried out even
though it results in the destruction of the article or sample.
(4) Also, the inspector may record the details of any article that is
examined or measured under this section in the way the
inspector considers appropriate, including by filming or
25 photographing.
80. Pre-packed articles -- special powers
(1) If a name is marked on the package containing a pre-packed
article, an inspector may require the person named to state in
writing, within a reasonable time specified by the inspector --
30 (a) the name and address of the person who packed the
article; and
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Inspectors Part 7
s. 81
(b) the address of the premises at which the article was
packed.
(2) If a person sells a pre-packed article, an inspector may require
the person to state in writing, within a reasonable time specified
5 by the inspector, the name and address of the person who
supplied the pre-packed article to that person.
81. Return etc. of seized property
(1) If an inspector seizes a measuring instrument, article or package
and --
10 (a) proceedings for an offence against this Act in
connection with the instrument, article or package are
not instituted within 6 months after seizure; or
(b) proceedings for such an offence are instituted within that
period but the defendant is not (on the determination of
15 those proceedings, whether or not within that period)
convicted of an offence,
the person from whom it was seized is, on application to the
Commissioner, entitled to its return.
(2) If an application for return of the measuring instrument, article
20 or package is not made within 3 months after the entitlement to
its return arises, the Commissioner may dispose of it as the
Commissioner thinks fit.
(3) If, in proceedings for an offence against this Act, the court --
(a) finds the offence proved; and
25 (b) finds that the offence concerned a measuring instrument,
article or package seized and retained by an inspector,
the court may order that the measuring instrument, article or
package be forfeited to the Crown.
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Part 7 Inspectors
s. 82
82. Obstruction etc. of inspector
A person commits an offence if the person --
(a) hinders or obstructs an inspector when the inspector is
exercising any function of an inspector under this Act;
5 (b) does not, when required to do so by an inspector
exercising a function under this Act, produce for
examination and testing any measuring instrument in the
possession, or under the control, of the person;
(c) fails to comply with a requirement of an inspector made
10 under the authority of this Act;
(d) is reasonably suspected by the inspector of having
committed, or of having been involved in the
commission of, an offence against this Act and fails to
state his or her true name and residential address on
15 being required to do so by an inspector (so long as the
inspector warns the person that it is an offence to fail to
do so);
(e) assaults or directly or indirectly threatens an inspector
while the inspector is exercising the functions of an
20 inspector; or
(f) impersonates an inspector or otherwise falsely pretends
to be engaged in or associated with the administration of
this Act.
Penalty: $10 000.
25 83. Self-incrimination
(1) A person is not excused from answering any question or
producing any record, if required to do so under this Part, on the
ground that the answer or record might tend to incriminate the
person or make the person liable to a penalty.
30 (2) An answer given or document produced by a person in
compliance with a requirement of this Part is not admissible
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Trade Measurement Bill 2004
Inspectors Part 7
s. 84
against the person in any criminal proceedings other than an
offence under section 89.
84. Inspector's certificate of authority to be produced
An inspector exercising or proposing to exercise a function
5 under this Act or the Administration Act must, on request,
produce the inspector's certificate of authority issued under the
Administration Act.
page 57
[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 8 Miscellaneous
s. 85
Part 8 -- Miscellaneous
85. Penalties in provisions
(1) If --
(a) a provision of this Act provides that a person commits
5 an offence under specified circumstances; and
(b) a penalty is specified at the end of the provision and
expressed in such a way as to indicate that it applies to
the provision,
a person who commits such an offence is liable, on conviction,
10 to a penalty not exceeding the penalty so specified.
(2) Section 72 of the Interpretation Act 1984 does not apply to this
Act.
86. Compensation for loss caused by offence
(1) If --
15 (a) a person is convicted of an offence under this Act; and
(b) the court considers that the commission of the offence
caused another person to suffer pecuniary loss,
the court may order the convicted person to pay to the other
person a specified amount of compensation for the loss.
20 (2) The court may make such an order whether or not it imposes a
penalty for the offence.
(3) The amount ordered to be paid may be recovered in a court of
competent jurisdiction as a debt due by the convicted person to
the other person.
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Trade Measurement Bill 2004
Miscellaneous Part 8
s. 87
87. Offence by employee -- liability of employer
(1) If an employee contravenes any provision of this Act, the
employer is to be taken to have contravened the same provision
whether or not the employee contravened the provision --
5 (a) without the employer's authority; or
(b) contrary to the employer's orders or instructions.
(2) It is a defence in proceedings against an employer for such a
contravention if it is established that the employer --
(a) had no knowledge of the contravention; and
10 (b) could not, by the exercise of due diligence, have
prevented the contravention.
(3) An employer may be proceeded against and convicted under a
provision pursuant to subsection (1) whether or not the
employee has been proceeded against or convicted under that
15 provision.
88. Offence by body corporate -- liability of directors etc.
(1) If a body corporate contravenes any provision of this Act, each
person who --
(a) is a director of the body corporate; or
20 (b) is concerned in its management,
is to be taken to have contravened the same provision if the
person knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a
provision pursuant to subsection (1) whether or not the body
25 corporate has been proceeded against or convicted under that
provision.
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[Draft Bill for public comment]
Trade Measurement Bill 2004
Part 8 Miscellaneous
s. 89
89. False or misleading statements
(1) A person commits an offence if the person makes a statement
that is false or misleading in a material particular in --
(a) a form given to the Commissioner for the purposes of
5 section 20;
(b) an application under Part 5 Division 2 for a permit to
sell a pre-packed article;
(c) an application under Part 6 for a licence;
(d) an answer to a question asked by an inspector under
10 Part 7; or
(e) a statement of a name or address to an inspector under
Part 7.
Penalty: $2 000.
(2) It is a defence in proceedings for such an offence if it is
15 established that, when the statement was made, the defendant
believed on reasonable grounds that the statement was true and
not misleading.
90. Evidence -- signatures of Minister and officials
A signature purporting to be the signature of --
20 (a) the Minister;
(b) the Commissioner; or
(c) a delegate of the Minister or the Commissioner,
is, unless the contrary is established, to be presumed to be the
signature it purports to be.
25 91. Certificate evidence
(1) The following certificates are evidence of the matters they
certify --
(a) a certificate purporting to have been issued by the
Minister to the effect that a person specified in the
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Miscellaneous Part 8
s. 92
certificate is or was the Commissioner at a time, or
during a period, specified in the certificate;
(b) a certificate purporting to have been issued by the
Commissioner to the effect that a person specified in the
5 certificate --
(i) was or was not an inspector; or
(ii) was or was not the holder of a specified class of
licence,
at a time, or during a period, specified in the certificate;
10 (c) a certificate purporting to have been issued by the
Commissioner as to the result of the examination of a
measuring instrument, and the testing of its calibration,
under section 26.
(2) A document purporting to be certified by the Commissioner as a
15 copy of --
(a) a permit under Part 5 Division 2 in force on a specified
day or during a specified period; and
(b) the conditions to which the permit was then subject,
is evidence of the matters certified.
20 92. Evidence -- pre-packed articles
(1) A marking on the package containing a pre-packed article of the
name of a person is evidence --
(a) that the article was packed by the person; or
(b) where the name is or was registered under the law
25 relating to business names, that the article was packed
jointly and severally by the persons in relation to whom
the business name is or was registered.
(2) A marking on the package containing a pre-packed article of the
address of a place is evidence that the article was packed at that
30 place.
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Trade Measurement Bill 2004
Part 8 Miscellaneous
s. 93
(3) A marking on the package containing a pre-packed article
purporting to be the date on which the article was packed is
evidence that the article was packed on that date.
(4) A batch number on a pre-packed article is evidence of the
5 matters indicated by the number, including, for example, the
date and place the article was packed and who packed it.
(5) The fact that an article contained in a package is found exposed
for sale or in the possession of a person for sale is evidence that
the article is a pre-packed article.
10 (6) In subsection (4) --
"batch number" means a number marked on a pre-packed
article in accordance with a system of numbers, letters or
symbols or any combination of numbers, letters and
symbols, used by the person packing the article to mark the
15 article to indicate when and where it was packed and who
packed it.
93. Packaged article presumed to be pre-packed in certain
circumstances
(1) Unless the contrary is established, a packaged article is to be
20 presumed to be a pre-packed article for the purposes of this Act
if it is found in premises where articles of the same kind are
packed for sale or are kept after being packed for sale.
(2) The fact that the package is not marked as required by this Act
is not sufficient to establish that the article is not a pre-packed
25 article.
94. Evidence -- use of measuring instrument for trade
The possession of a measuring instrument by a person carrying
on trade or the presence of a measuring instrument on premises
or in a place used by a person for trade is evidence that the
30 person uses the instrument for trade.
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Trade Measurement Bill 2004
Miscellaneous Part 8
s. 95
95. Records -- English language
A requirement under this Act to produce a record includes,
where the record --
(a) is not written at all; or
5 (b) is not written wholly in the English language,
a requirement to produce a statement, written in the English
language, setting out such of the particulars in the record as are
not written in the English language.
96. Regulations
10 (1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed, for giving effect to
this Act.
(2) Without limiting the generality of subsection (1), the regulations
15 may make provision with respect to the following --
(a) the provision, maintenance, custody and care of
standards of measurement;
(b) in addition to any provision made under section 12,
regulating, prohibiting or restricting the use of
20 measuring instruments for trade;
(c) in addition to any provision made under section 12 --
(i) limiting the purposes for which specified
measuring instruments may lawfully be used; or
(ii) specifying the measuring instruments required to
25 be used for specified purposes;
(d) the verification, re-verification, certification or
re-certification of measuring instruments;
(e) the positioning of, and access to, measuring instruments
in order to facilitate --
30 (i) their use for trade;
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Trade Measurement Bill 2004
Part 8 Miscellaneous
s. 96
(ii) their examination by an inspector or licensee; or
(iii) their verification, re-verification, certification or
re-certification;
(f) the provision of, and payment and recovery of the costs
5 of, labour, materials, equipment and transportation
necessary for the purpose of examining, testing,
verifying or re-verifying a measuring instrument;
(g) the sealing of a verified, re-verified, certified or
re-certified measuring instrument;
10 (h) batch testing and quality assurance in relation to
measuring instruments and the provision of labour,
facilities and equipment for those purposes;
(i) the provision or taking of samples of measuring
instruments and the testing of the samples;
15 (j) conditionally or unconditionally conferring specified
functions of an inspector on a person who has similar
functions under a corresponding law;
(k) providing that the measurement of a specified article, or
an article in a specified state or condition, is the
20 measurement of the article for the purposes of this Act if
it is carried out in a specified manner;
(l) matters applicable to weighbridges, whether or not
public weighbridges, including their installation,
functioning, operation, examination, testing, suitability
25 and use;
(m) the functions of operators of public weighbridges;
(n) weighbridge suitability statements;
(o) prohibiting, regulating or restricting the sale of specified
articles, or articles of a specified class, by reference to
30 measurement or a specified kind or unit of
measurement;
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Miscellaneous Part 8
s. 97
(p) the manner of and procedure for determining specified
measurements or specified proportions of pre-packed
articles;
(q) standard specifications of capacity in relation to --
5 (i) packages containing specified pre-packed
articles; and
(ii) the packing and sale of articles in those
packages;
(r) the circumstances in which the mass of the package
10 containing a specified article may be included in
determining the net mass of the article;
(s) regulating the advertising of articles (including
pre-packed articles) in so far as the advertising relates to
measurement;
15 (t) prohibiting, regulating or restricting the sale of articles
in relation to which an offence has been committed
under this Act;
(u) the keeping of records relating to measuring
instruments;
20 (v) the approval of forms for use under this Act.
(3) The regulations may prescribe a penalty not exceeding $2 000
for any offence against the regulations.
97. Regulations may commence on different days
(1) In this section --
25 "different days" means different days after the day of the
publication of the relevant regulations in the Gazette.
(2) Different provisions of regulations may come into operation on
different days.
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Trade Measurement Bill 2004
Part 8 Miscellaneous
s. 98
(3) Different provisions of regulations may be made applicable on
and after different days to --
(a) any specified person, matter, measuring instrument,
article or transaction; or
5 (b) any specified class of persons, matters, measuring
instruments, articles or transactions.
98. Operation of Fair Trading Act 1987 not affected
Nothing in this Act affects the operation of the Fair Trading
Act 1987.
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Trade Measurement Bill 2004
Transitional provisions for the measurement of certain Part 9
alcoholic liquor
s. 99
Part 9 -- Transitional provisions for the measurement
of certain alcoholic liquor
99. Interpretation and application
(1) In this Part --
5 "alcoholic liquor" means beer, stout, ale, brandy, gin, rum,
whisky and vodka;
"designated day" means the second anniversary of the day on
which section 10(1) comes into operation;
"repealed Act" means the Act repealed by section 36(1) of the
10 Administration Act.
(2) Nothing in this Part applies to alcoholic liquor that is packed as
a pre-packed article.
100. Delayed application of sections 10(1), 16 and 32
Despite any other provision of this Act --
15 (a) section 10(1) applies to the use of a measuring
instrument for the measurement of alcoholic liquor for
trade;
(b) section 16 applies to the use of a measuring instrument
that is not of an approved pattern for the measurement of
20 alcoholic liquor for trade; and
(c) section 32 applies to the measurement of alcoholic
liquor for sale,
only on and after the designated day.
101. Temporary continuation of certain provisions of
25 repealed Act
(1) Despite the repeal of the repealed Act, until the designated
day --
(a) Part III; and
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Trade Measurement Bill 2004
Part 9 Transitional provisions for the measurement of certain
alcoholic liquor
s. 102
(b) section 40(1) and (2),
of that Act as in force immediately before that repeal continue
to apply to the measurement of alcoholic liquor for the purposes
of sale (within the meaning of that term in the repealed Act) as
5 if the repealed Act had not been repealed.
(2) For the purposes of any reference --
(a) in this Act to "this Act"; or
(b) in the Administration Act to "the principal Act",
the provisions continued in force by subsection (1) --
10 (c) are to be regarded as if they were enacted in this Act;
but
(d) despite paragraph (c), are to be construed in accordance
with Part I of the repealed Act.
102. Further provision may be made for this Part
15 (1) If there is no sufficient provision in this Part for any matter or
thing necessary or convenient to give effect to the purposes of
this Part, that provision may be made by regulations.
(2) If in the opinion of the Minister an anomaly arises in the
operation of any provision continued in force by section 101(1),
20 the Governor may by regulations --
(a) modify that provision to remove the anomaly; and
(b) make such provision as is necessary or expedient to
achieve the purposes referred to in subsection (1) in the
intended manner.
25 (3) If regulations under subsection (1) provide that a state of affairs
is to be taken to have existed, or not to have existed, on and
from a day that is --
(a) earlier than the day on which the regulations are
published in the Gazette; but
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Trade Measurement Bill 2004
Transitional provisions for the measurement of certain Part 9
alcoholic liquor
s. 102
(b) not earlier than the day on which this Part came into
operation,
the regulations have effect according to their terms.
(4) A provision referred to in subsection (3) does not operate so
5 as --
(a) to affect in a manner prejudicial to any person (other
than the State) the rights of that person existing; or
(b) to impose liabilities on any person (other than the State)
in respect of anything done or omitted to be done,
10 before the day of publication of the regulations.
page 69
[Draft Bill for public comment]
WESTERN AUSTRALIA
TRADE
MEASUREMENT
BILL 2004
DRAFT BILL FOR PUBLIC COMMENT
The Government proposes to introduce into
Parliament a Bill to make provision in respect
of --
* measuring instruments used for trading and
related purposes;
* the measurement of articles and substances for
determining their sale price;
* the packaging of things in advance of sale; and
* the measurement and pricing of things so
packed,
and for incidental and related purposes.
This draft Bill has been prepared for public
comment but it does not necessarily represent the
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