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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL MEASUREMENT AMENDMENT
BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon Kim Carr, Minister for
Innovation, Industry, Science and Research)
Contents
OUTLINE 1
FINANCIAL IMPACT STATEMENT 2
NOTES ON CLAUSES 3
Clause 1 Short title 3
Clause 2 Commencement 3
Clause 3 Schedules 3
Schedule 1: Amendments to the National Measurement Act 1960 3
Item 1 Subsection 3(1) (definition of approved pattern) 3
Item 2 Subsection 3(1) (definition of AQS sampling procedures) 3
Item 3 Subsection 3(1) (definition of AQS test procedures) 3
Items 4 and 5 Subsection 3(1) (definition of certified reference
material) 4
Item 6 Subsection 3(1) (definition of component) 4
Item 7 Subsection 3(1) (paragraph (a) of the definition of measuring
instrument)........... 4
Item 8 Subsection 3(1) (definition of national group test
procedures).................... 5
Item 9 Subsection 3(1) (definition of national instrument test
procedures)......... 5
Item 10 Subsection 3(1) (definition of national sampling
procedures) 5
Item 11 Subsection 3(1) (definition of national single article
test procedures)............ 5
Item 12 Subsection 4(1A) 5
Item 13 Section 10 5
Item 14 Subsection 12A(6) 5
Items 15 and 16 Paragraphs 18GB(1)(c) and 18GB(2)(c) 5
Items 17 and 18 Paragraphs 18GC(1)(c) and 18GC(2)(c) 6
Item 19 Section 18GCA 6
Items 20 and 21 Paragraphs 18GE(5)(a) and 18GE(6)(a) 7
Item 22 Subsection 18GG(2) 7
Item 23 Subsection 18MA(2) 8
Item 24 Section 18RA(2A) 8
Item 25 Paragraph 18RB(a) 8
Item 26 Section 18RCA 9
Item 27 Paragraph 19B(a) 9
Item 28 Section 19B (penalty) 9
Item 29 Section 19Q 9
Item 30 Paragraph 20(1)(ea) 10
Item 31 Subparagraph 20(1)(l)(ii) 10
Item 32 Paragraphs 20(1)(r), (s), (u), (v) and (w) 10
Item 33 Application provisions 11
NATIONAL MEASUREMENT AMENDMENT BILL 2010
GENERAL OUTLINE
The National Measurement Amendment Bill 2010 amends the National
Measurement Act 1960 to correct some unintended consequences from the
translation of trade measurement provisions of State and Territory
legislation into the Commonwealth legislation.
Following a review of the State and Territory trade measurement systems,
the Council of Australian Governments (COAG) decided in 2007 that a
Commonwealth system of trade measurement should be introduced. Amendments
to the National Measurement Act 1960 were made in December 2008 to give
effect to that decision. The corresponding National Trade Measurement
Regulations 2009 were made in September 2009. The transition to a national
system of trade measurement will occur on 1 July 2010.
The translation of the trade measurement provisions of the State and
Territory legislation into the Commonwealth legislation resulted in some
unintended consequences. Industry stakeholders have expressed concerns
about these issues. The National Measurement Amendment Bill 2010 ensures
that these problems are remedied as close as possible to commencement of
the new system.
The Bill contains some adjustments to offence provisions which were
inserted in the 2008 amendments. Specifically, the Bill narrows the
circumstances in which some offence provisions may apply, to remove doubt
about the application of those offences to inappropriate persons.
Although the Bill contains one new offence provision (comprising a fault
offence and a strict liability offence, which are drafted consistently with
the drafting policies contained in A Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers), this provision does not
criminalise any new behaviour, but rather preserves the effect of some
previous offence provisions on a specific category of behaviour which
continues to be considered appropriate to penalise (see proposed new
section 18GCA).
The Bill therefore reduces the circumstances in which the existing offence
provisions apply, and does not penalise any new behaviour.
The Bill also makes some minor amendments to penalty clauses which were
drafted otherwise than in accordance with current drafting policy for
criminal offences. Specifically, it replaces references to monetary
penalties with references to penalty units.
The offence provisions are considered in more detail in the Notes on
Clauses discussion below.
The Bill also contains a number of minor and technical amendments to
facilitate the working of the Act.
The Bill provides for a greater role for the Chief Metrologist in relation
to determining various technical procedures under the Act. The 2008
amendments contemplated a number of technical standards and procedures
being set out in the regulations or being determined by the Minister.
However, on further consideration, it has been concluded that these
documents may need to be regularly produced and updated, and it would be
administratively complex and slow to require legislative amendments
whenever the procedures needed to be added to or amended. It is also
considered that the technical content of these documents is more
appropriately determined by the Chief Metrologist, due to the expertise
associated with that position.
The Bill therefore now provides for the Chief Metrologist to determine, in
writing:
- Average Quantity System (AQS) sampling procedures for the purposes of
Subdivision 3-C of Division 3 of Part VI;
- AQS test procedures for the purposes of Subdivision 3-C of Division 3 of
Part VI;
- national group test procedures for the purposes of Subdivision 4-B of
Division 4 of Part VI;
- national sampling procedures for the purposes of Subdivision 4-B of
Division 4 of Part VI;
- national single article test procedures for the purposes of Subdivision 4-
B of Division 4 of Part VI; and
- national instrument test procedures for the purposes of section 18GG.
These instruments will not be legislative instruments. However, they will
be made publicly available on the National Measurement Institute website at
http://www.measurement.gov.au
FINANCIAL IMPACT STATEMENT
Funding of $31.65m, including $3m capital and $2.3m depreciation, was
provided to the Department for the transition to a national system of trade
measurement and its first year of its operation (2007-08 to 2010-11).
Ongoing funding of $23.653m including $2.3m depreciation will be provided
from 2011-12.
No new financial impacts from these amendments are expected.
NOTES ON CLAUSES
Clause 1 Short title
Clause 1 provides for the Act to be cited as the National Measurement
Amendment Act 2010.
Clause 2 Commencement
Clause 2 specifies that sections 1 to 3 of the Act commence on the day the
Act receives Royal Assent. It also specifies that the amendments to the
National Measurement Act 1960 (the Act) in Schedule 1 commence on the day
after the Act receives Royal Assent.
Clause 3 Schedules
Clause 3 provides for the arrangements set out in the schedules to have
legal effect on commencement of the Bill.
Schedule 1: Amendments to the National Measurement Act 1960
Item 1 Subsection 3(1) (definition of approved pattern)
This item amends the definition of 'approved pattern' for a measuring
instrument so that it includes a pattern that has expired or been cancelled
(but not withdrawn), but was in force at the time when the measuring
instrument was manufactured. Previously, a measuring instrument was only
regarded as being in accordance with an approved pattern if that pattern
was currently in force, or was in force when the measuring instrument was
first verified.
This change recognises that manufacturers of measuring instruments often
supply instruments to third parties prior to their verification. For
further detail on this issue, refer to the amendments to the offence
provisions under items 15-21. It is appropriate that the manufacturer be
required to have ensured that the instrument was in accordance with a
pattern in force when the instrument was manufactured, not at some later
date.
Item 2 Subsection 3(1) (definition of AQS sampling procedures)
This item removes a reference to the AQS sampling procedures being
prescribed in regulations, and refers instead to procedures determined by
the Chief Metrologist under section 19Q (see item 29 for further detail).
Item 3 Subsection 3(1) (definition of AQS test procedures)
This item removes a reference to the AQS test procedures being prescribed
in regulations, and refers instead to procedures determined by the Chief
Metrologist under section 19Q (see item 29 for further detail).
Items 4 and 5 Subsection 3(1) (definition of certified reference
material)
This item inserts a definition of 'Australian certified reference
material', and removes the term 'certified reference material'. The latter
term is in use in jurisdictions outside Australia as well as being widely
used as a generic term in the field of science. This may cause some
stakeholder confusion about compliance with obligations under Australian
law, particularly when using imported products available in Australia and
which are described as certified reference materials in their jurisdiction
of origin.
The new term 'Australian certified reference material' will replace all
former references to certified reference material in the Act and
subordinate legislation. The definition will capture all reference
material that has been certified in accordance with the regulations. This
amendment is also consistent with the use of the term 'Australian legal
unit of measurement' in the legislation to clarify the requirements within
the jurisdiction of Australia for units of measurement.
Item 6 Subsection 3(1) (definition of component)
This item repeals the previous definition of 'component' and replaces it
with a new definition. Although the wording has been simplified using a
more modern drafting style to improve the readability of the provision, the
new definition covers all of the components which were covered by the
previous definition.
The new definition has also been expanded to include a new category of
component; a thing designed or intended to convert a physical quantity into
another physical quantity. This change reflects the fact that the previous
definition did not cover some commonly used measurement modules; for
example, load cells, which are transducers used to convert force into
electrical signal and are used in weighing instruments.
Item 7 Subsection 3(1) (paragraph (a) of the definition of measuring
instrument)
This item makes a minor change to the definition of the term 'measuring
instrument' to remove a redundant reference to physical quantities. The
definition predated the insertion of a definition for the term
'measurement' in the Act in 2008. It is now redundant to refer to a
measurement of a physical quantity, since this is now covered by the
definition of measurement.
This change has a minor effect on the definition; specifically, a measuring
instrument now expressly includes a thing by means of which a determination
of number, not just physical quantity, may be made, and excludes a thing by
means of which a determination of number or physical quantity which is for
descriptive purposes only may be made.
Item 8 Subsection 3(1) (definition of national group test procedures)
This item removes a reference to the national group test procedures being
prescribed in regulations, and refers instead to procedures determined by
the Chief Metrologist under section 19Q (see item 29 for further detail).
Item 9 Subsection 3(1) (definition of national instrument test
procedures)
This is a consequential amendment to reflect the transfer of responsibility
for determining national instrument test procedures under subsection
18GG(2) from the Minister to the Chief Metrologist (see item 29 for further
detail).
Item 10 Subsection 3(1) (definition of national sampling procedures)
This item removes a reference to the national sampling procedures being
prescribed in regulations, and refers instead to procedures determined by
the Chief Metrologist under section 19Q (see item 29 for further detail).
Item 11 Subsection 3(1) (definition of national single article test
procedures)
This item removes a reference to the national single article test
procedures being prescribed in regulations, and refers instead to
procedures determined by the Chief Metrologist under section 19Q (see item
29 for further detail).
Item 12 Subsection 4(1A)
This is a minor technical amendment to subsection 4(1A) that removes a
reference to former subsection 4(3) in that subsection.
Item 13 Section 10
This is a consequential amendment to replace references to 'certified
reference material' with 'Australian certified reference material' (see
items 4 and 5 for more detail).
Item 14 Subsection 12A(6)
This item amends the offence provision relating to contracts with respect
to interest in land not expressed in Australian legal units of measurement
to specify the penalty in penalty units instead of dollars. This is
consistent with current penalty provision drafting policy, which specifies
punishments in penalty units so that the severity of the punishment can be
maintained over time without the need for legislative amendment of the
offence provision.
Items 15 and 16 Paragraphs 18GB(1)(c) and 18GB(2)(c)
These items amend the offence provisions associated with the installation
of unverified measuring instruments to instead penalise the installation of
measuring instruments which are not of an approved pattern.
The offence provisions in their previous form contemplated the installer
also being responsible for the instrument being verified (that is, tested
to determine that the instrument works correctly). In practice, many
measuring instruments in use for trade may be supplied, installed and
verified by different people at different times. In particular, it is
often inappropriate to verify a measuring instrument until it is installed
in the location where it will be used and connected to the power, display
and storage facility for the commodity that it will be used to measure (for
example, a petrol pump in a service station). Additionally, a person who
is not a verifier could be contracted to install an instrument prior to its
verification.
Measuring instruments may therefore pass through several hands before their
final installation, verification and use for trade. Industry have
expressed concern that the strict liability offence in particular could
lead to an installer of measuring instruments being liable where the
instruments are sold to an intermediary or third party before their final
installation and use for trade, and verification was not the installer's
function.
The amendments will ensure that the offences only apply to an installer who
installs an instrument not of an approved pattern.
Items 17 and 18 Paragraphs 18GC(1)(c) and 18GC(2)(c)
These items amend the offence provisions associated with the supply of
unverified measuring instruments to instead penalise the supply of
measuring instruments which are not of an approved pattern.
As discussed under items 15 and 16, this change reflects industry practice
whereby a manufacturer may sell a measuring instrument for trade without
having it verified (because it may be more appropriate to verify it after
installation due to site variations). The amendments will ensure that the
offence provisions only apply to a supplier who supplies an instrument not
of an approved pattern.
However, where the supply is by way of loan or letting for hire, the
original offence will still apply to unverified supplies (see item 19).
Item 19 Section 18GCA
This item inserts a new section 18GCA, which preserves the previous offence
that applied to the loan or letting of unverified measuring instruments for
trade.
Items 17 and 18 amend section 18GC to ensure that manufacturers supplying
instruments are only penalised if they supply an instrument not of an
approved pattern. This was in recognition that in some circumstances,
manufacturers supply instruments to third parties or intermediaries, and
verification occurs after installation. The original supplier should not
be held accountable for the user ultimately failing to have that instrument
verified.
However, section 18GC also applied to situations where the supply was by
way of loan or letting for hire. In those circumstances, the verification
is the responsibility of the person loaning or letting the instrument,
because it is an offence to use an instrument for trade unless it is
verified (section 18GA). It is therefore necessary to insert a new
provision which preserves the original offence as it relates to the supply
by way of let for hire or loan. The new provision does not make any new
behaviour subject to an offence.
Items 20 and 21 Paragraphs 18GE(5)(a) and 18GE(6)(a)
These items amend the offence provisions associated with the supply of
measuring instruments which give inaccurate measurements so that they apply
only where the supply is by way of loan or let for hire.
As discussed under items 15 and 16, this change reflects industry practice
whereby a manufacturer may sell a measuring instrument for trade without
having it verified. Inaccurate measurements are detected at the
verification stage and may be caused by site variation factors. It is
therefore inappropriate that the offence apply to the supplier where it is
the user who will be responsible for verification.
It is considered appropriate that the offence continue to apply in
loan/letting situations, however, since in those circumstances, the
verification is the responsibility of the person loaning or letting the
instrument (because it is an offence to use an instrument for trade if it
has not been verified; see section 18GA).
Item 22 Subsection 18GG(2)
This item amends subsection 18GG(2) so that the responsibility for
determining the national instrument test procedures lies with the Chief
Metrologist.
The government has further considered the types of national instrument test
procedures that will be required, and concluded that it is likely that
there will be numerous national instrument test procedures which will need
to be determined on a regular basis to cover an increasing range of
measuring instruments. These documents will be routine technical documents
reflecting current scientific practice and they will be used to ensure
uniformity in the testing of instruments in the field throughout Australia.
Under the present arrangement, such determinations need to be made by the
Minister by legislative instrument. Given the routine and technical nature
of the documents, this would be unnecessarily administratively onerous. It
is more appropriate that the Chief Metrologist undertake this role, due to
his expertise.
The provision specifies that the national instrument test procedures will
not be legislative instruments. This is for information only, to assist
readers (the national instrument test procedures do not meet the definition
of 'legislative instrument' in section 5 of the Legislative Instruments Act
2003; they are administrative, rather than legislative, in nature, since
they will not have a direct or indirect effect of affecting a privilege or
interest, imposing an obligation, creating a right, or varying or removing
an obligation or right. They are also of a category of instrument
expressly excluded as legislative instruments, being an instrument the
effect of which is to approve a manner of doing an act (verification
testing)).
Item 23 Subsection 18MA(2)
This item expands the capacity of the Secretary to appoint a person as a
trade measurement inspector. Specifically, it allows the prescribed
criteria to include not just formal qualifications, but also knowledge or
experience. This is in recognition that formal qualifications may not be
the only appropriate way of prescribing suitable persons to be trade
measurement inspectors.
Item 24 Section 18RA(2A)
This item inserts a new express requirement in relation to the appointment
of utility meter verifiers. New subsection 18RA(2A) will require that the
Secretary be satisfied that a utility meter verifier, or an employee of the
verifier, is competent to test a particular class of utility meter before
specifying that class as a class that the utility meter verifier may verify
under subsection 18RA(2). For example, the person may be accredited by the
National Association of Testing Authorities (NATA) (see item 26 and new
section 18RCA), or may otherwise satisfy the Secretary that he or she is
competent.
This amendment reflects the practical reality that in the near future, the
national legal metrology control regime for utility meters will be greatly
expanded to include electricity meters and there will be a need to appoint
many more utility meter verifiers. Not all potential appointees have the
appropriate NATA accreditation, and many are unlikely to be able to acquire
it within an appropriate time. The new arrangements will permit the
Secretary more flexibility in the appointment of utility meter verifiers by
allowing the Secretary to be otherwise satisfied of a person's competence.
This is in line with the flexibility afforded to the Chief Metrologist in
the appointment of legal metrology authorities under regulation 73(1) of
the National Measurement Regulations 1999.
Item 25 Paragraph 18RB(a)
Consistently with item 24, this item removes the condition that a person
must be accredited by NATA in order to be appointed as a utility meter
verifier, and replaces it with a more general requirement that the verifier
must, if personally verifying a utility meter, be competent to test that
class of utility meter. The verifier also must not employ a person to
verify a utility meter unless that person is competent to test that class
of utility meter.
As discussed under item 24, accreditation by NATA will automatically mean
that a person is taken to be competent (see item 26 and new section 18RCA),
but it will no longer be necessary.
Item 26 Section 18RCA
This item provides for a person to be taken to be competent to test a class
of utility meter if they are accredited by NATA. That is, without limiting
the criteria that the Secretary may use to be satisfied of a person's
competence, NATA accreditation to test a class of utility meter
automatically means that a person will be competent to test that class of
utility meter.
Item 27 Paragraph 19B(a)
This item corrects a limiting reference in paragraph 19B(a).
Under paragraph 19A(1)(b) of the Act, the regulations may make provision in
relation to the approval and verification of patterns of measuring
instruments as patterns of measuring instruments suitable for use for trade
or any other legal purpose. Currently, the offence provision prohibits a
person from falsely representing that a pattern is in accordance with a
pattern approved under the regulations as suitable for use for trade. For
consistency with paragraph 19A(1)(b), the offence should apply to false
representations that a pattern is in accordance with a pattern approved
under the regulations, regardless of whether it is approved under the
regulations for use for trade or for some other legal purpose.
Accordingly, this item removes the words 'as a pattern of a measuring
instrument suitable for use for trade' so that the offence applies to any
false representation that a pattern is in accordance with a pattern
approved under the regulations.
Item 28 Section 19B (penalty)
This item amends the offence provision for false representations about
patterns and measuring instruments to specify the penalty in penalty units
instead of dollars. This is consistent with current penalty provision
drafting policy, which specifies punishments in penalty units so that the
severity of the punishment can be maintained over time without the need for
legislative amendment of the offence provision.
Item 29 Section 19Q
This item replaces a number of regulation-making provisions (see item 32)
with a provision permitting the Chief Metrologist to make written
determinations on those matters.
Originally, it was contemplated that the regulations would contain AQS
sampling and test procedures and national group test, sampling and single
article test procedures. However, on further consideration, due to the
technical nature of these documents and the frequency with which they will
be updated over time, it is considered more appropriate and
administratively efficient for the Chief Metrologist to make written
determinations in relation to these procedures.
These determinations will not be legislative instruments because they do
not meet the definition of legislative instrument in section 5 of the
Legislative Instruments Act 2003 (being administrative, rather than
legislative, in nature, since they will not have a direct or indirect
effect of affecting a privilege or interest, imposing an obligation,
creating a right, or varying or removing an obligation or right, and also
being expressly excluded by being an instrument the effect of which is to
approve a manner of doing an act). New section 19Q will state that these
determinations are not legislative instruments, but this is merely to
assist readers.
Item 30 Paragraph 20(1)(ea)
This item allows regulations to be made that will permit verifying
authorities for reference standards of measurement to make single
measurements of physical quantities within their scope of appointment as a
verifying authority on artefacts other than standards of measurement. It
will also allow regulations to be made which permit verifying authorities
to issue certificates for these measurement that have the evidential status
described in regulation 90 of the National Measurement Regulations 1999.
This regulation making power reflects a need that has been identified for
single measurements of physical quantities on artefacts other than
standards of measurement to be made and reported in a form that has
evidential status. For example, when a verifying authority is asked to
weigh an artefact for which the weight needs to be known for legal purposes
such as in accident investigations and other occupational health and safety
litigation.
Item 31 Subparagraph 20(1)(l)(ii)
This item is a minor technical amendment. Following amendments made in 2008
an additional 'and' was introduced at the end of paragraph 20(1)(l)(ii).
The amendment will remove this word.
Item 32 Paragraphs 20(1)(r), (s), (u), (v) and (w)
This item is a consequential amendment, removing the regulation-making
powers associated with a number of technical procedural documents which
will be the subject of determinations under new section 19Q (see item 29).
It is no longer necessary to provide a regulation-making power for these
matters.
Item 33 Application provisions
This item provides for the application of the changes contained in this
Bill to instruments, contracts, appointments and other actions.
Specifically, this item provides that amendments which could affect a
person's compliance with an obligation under the Act apply only to actions
taken on or after the commencement of the relevant items.
For example, the changes to the offence provisions relevantly apply to the
installation, sale, supply, letting for hire or loaning of measuring
instruments on or after the commencement of the relevant items. Actions
taken before that date are subject to the existing provisions.
Likewise, adjustments to the penalties associated with some actions only
apply to actions taken (such as the entry into a contract or the making of
a false representation) on or after the date of commencement.