TRADE MEASUREMENT ADVISORY COMMITTEE TRADE MEASUREMENT REVIEW OF THE UNIFORM TRADE MEASUREMENT LEGISLATION PROPOSAL FOR AMENDMENT AND REQUEST FOR COMMENTS AMENDMENT TO SECTION 15 OF THE TRADE MEASUREMENT ACT 1990 October 2000

TRADE MEASUREMENT ADVISORY COMMITTEE

REVIEW OF THE UNIFORM TRADE MEASUREMENT LEGISLATION

PROPOSAL FOR AMENDMENT AND REQUEST FOR COMMENTS

AMENDMENT TO SECTION 15 OF THE

TRADE MEASUREMENT ACT 1990

Introduction

Under a formal agreement signed in 1990 between the Commonwealth, the States and the Territories (except Western Australia), all jurisdictions, with the exception of Western Australia, enacted model uniform trade measurement legislation.

In 1995 a Trade Measurement Advisory Committee ("TMAC") was formed by the Ministerial Council on Consumer Affairs ("MCCA") and one of its functions was the ongoing review of trade measurement legislation nationally.

TMAC has recommended that the trade measurement legislation be amended to improve trade measurement administration and MCCA has requested that Queensland proceed with drafting the recommended amendments to the Queensland Trade Measurement Act 1990 ("the Act"). In the interests of uniformity these amendments will be used as the model by the other participating States and Territories to amend their own legislation.

Note: The numbering of the Act and Regulations in this document refers to the Queensland legislation. It may differ from that of other States and Territories.

This paper addresses one of the proposed amendments and is forwarded to your organisation for comment because of your involvement in the relevant industry. Only those amendments that relate to the operation of your organisation have been forwarded to you for comment.

This paper addresses the proposal to amend section 15 of the Act:

"A new section 15(1)(c) be added to the Act which states that the administering authority `may provide for certification periods to be set'.

Section 15(2) of the Act be re-written so that it relates to the new section 15(1)(c) and states that the administering authority `may provide for the certification of a measuring instrument as often as is necessary or desirable in relation to specified classes of instruments'".

However, should you wish to comment on the other amendments to the legislation, please contact this Office so that a copy of the relevant consultation papers can be forwarded to you.

Other Amendments

The other amendments for which Issues Papers have been prepared are:

1. "Amendment to Section 28 of the Trade Measurement (Pre-packed Articles) Regulation 1991" - Section 28 of the Trade Measurement (Pre-packed Articles) Regulation 1991 should be amended by repealing the Table and requiring the products listed in sub-regulation (1) to be unit priced only when packed in random mass packs.

Section 28 should also be amended to remove the references to `fruit' and `vegetables'.

2. "Amendment of the Trade Measurement Act 1990 - Firewood" - The provisions of the Trade Measurement Act 1990 should be amended to make it a requirement to "stack" firewood for sales by volume. Definitions of "stacked" and "firewood" are also seen as a requirement. (This does not preclude firewood being sold by reference to mass or per load.)

3. "The Average Quantity System" - The Average Quantity System to be introduced into legislation and current shortweight provisions be repealed. This includes repealing "mass when packed" and "mass at standard condition" provisions.

4. "Amendment of the Trade Measurement Act 1990 and the Trade Measurement (Weighbridges) Regulation 1991 - Certificates of Suitability" - The Trade Measurement Act 1990 and the Trade Measurement (Weighbridges) Regulation 1991 should be amended to remove the separate requirement for certificates of suitability for public weighbridges and a requirement which incorporates the certificate of suitability as part of the licence be made.

5. "Amendment of Section 23(1) of the Trade Measurement (Weighbridges) Regulation 1991" - Section 23(1) of the Trade Measurement (Weighbridges) Regulation 1991 should be amended to make the provision of tare mass books optional.

6. "Amendment of Section 23(2), (3) and (4) of the Trade Measurement (Weighbridges) Regulation 1991" - Section 23(2), (3) and (4) of the Trade Measurement (Weighbridges) Regulation 1991 should be amended to allow for the electronic printing and storage of measurement tickets.

7. "Amendment of Section 19(b) of the Trade Measurement (Pre-packed Articles) Regulation 1991" - Section 19(b) of the Trade Measurement (Pre-packed Articles) Regulation 1991 be amended by deleting the existing words and replacing them with:

"(b) the total net mass of all the eggs in the package".

This would also require the deletion of the reference to eggs in section 18(1)(a) of the Regulation.

8. "Amendment of Section 25 of the Trade Measurement Act 1990" - Section 25 of the Trade Measurement Act 1990 should be repealed to remove the "Special provisions for sale of meat".

National Competition Policy

You are also asked to comment on the implications that the amendment to section 15 of the Act may have in terms of the National Competition Policy review of legislation. Under the Competition Principles Agreement signed by the States, Territories and the Commonwealth, it was agreed that existing legislation and proposed legislation would be reviewed in terms of its impact on competition in the relevant market. The Agreement provides that:

"The guiding principle is that legislation ... should not restrict competition unless it can be demonstrated that:

(a) the benefits of the restriction to the community as a whole outweigh the costs; and

(b) the objectives of the legislation can only be achieved by restricting competition".

The review that is to be conducted should:

"(a) clarify the objectives of the legislation;

(b) identify the nature of the restriction on competition;

(c) analyse the likely effect of the restriction on competition and on the economy generally;

(d) address and balance the costs and benefits of the restriction; and

(e) consider alternative means for achieving the same result including non-legislative approaches".

The specific issues that you are asked to address are set out in the body of this Issues Paper.

HOW TO MAKE COMMENTS AND SUBMISSIONS You are invited to make comments and submissions on the issues raised in this Issues Paper. You are also invited to contact the MCCA Secretariat to request information on the other amendments proposed to be made to the trade measurement legislation. Written comments and submissions should be sent to: Neil Power Executive Officer Ministerial Council on Consumer Affairs Consumer Affairs Division Department of the Treasury Parkes Place PARKES ACT 2600 Facsimile transmissions can be sent to (02) 6263 2960 Email can be sent to npower@treasury.gov.au Oral submissions can be made by telephoning Malcolm Bartlett on (07) 3836 0409 Closing date for submissions is 30 November 2000

CONFIDENTIALITY

Unless there is an indication from you that you wish your submission to remain confidential, your submission may be subject to release under the Freedom of Information Act 1992 (Qld).

Background

Section 15 of the Trade Measurement Act 1990 provides:

"Responsibilities of administering authority concerning verification and re-verification

(1) It is responsibility of the authority:-

(a) to provide the means by which measuring instruments may be verified; and

(b) to arrange for the re-verification of measuring instruments that are in use for trade.

(2) Arrangements under subsection (1)(b) must provide for the re-verification of a measuring instrument as often as the administering authority determines is necessary or desirable in relation to the class of measuring instrument concerned but need not be made in any cases or circumstances for which the regulations provide re-verification is not required.

(3) This section does not affect the power of the administering authority to charge amounts in accordance with the regulations for or in connection with the verification or re-verification of measuring instruments.

(4) Even if a measuring instrument is not required by this Act to bear an Inspector's mark or a licensee's mark, it 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 administering authority so approves, at the request of the person in possession of measuring instrument".

For those Authorities that verify instruments, section 15(1) currently places the responsibility on the administering authority to ensure that all trade measuring instruments are re-verified. The term "re-verified" means that the instrument has been assessed as being correct and that it complies with the requirements set out in the Act. The instrument is then "marked" or stamped to the effect that it has been tested and that it is correct and complies with the Act. It can then be relied upon as a correct instrument for the determination of a measurement. However, the onus to ensure that the measuring instrument is in fact correct remains with the trader.

Under the provisions of the Act only an inspector is permitted to verify or re-verify a measuring instrument. Other provisions of the legislation allow for a licensee to certify that a measuring instrument is correct. In effect, this is a similar function to that which an inspector performs.

The requirement for instruments to be re-verified under the current provisions obliges the administering authority to attend the premises of a trader to re-verify a measuring instrument as often as is determined by the administering authority. The obligation to ensure that the measuring instrument has been re-verified is placed upon the administering authority to attend and conduct the testing and re-verification process.

Proposal for Amendment

The proposed amendment will change this obligation to allow the administering authority to set the periods within which measuring instruments must be certified, re-verified or re-certified. The responsibility to ensure that a measuring instrument has been certified, re-verified or re-certified will be placed upon the trader who must request the administering authority or a licensee to attend the trader's premises for the purpose of testing and certification, re-verification or re-certification of the measuring instrument.

The administering authority will still be responsible for setting the periods in which measuring instruments must be certified, re-certified or re-verified.

The aim of the amendment is to ensure that all measuring instruments continue to operate accurately based on performance histories for those instruments. Licensees will not have the power to enter the premises of a trader for the purpose of re-certifying a measuring instrument unless a trader has requested that a re-certification process be undertaken. The administering authority will, however, have the power to enter premises to conduct random tests at the discretion of the administering authority as is currently the case.

The obligation to ensure that a measuring instrument has been re-certified or re-verified will be placed on the trader. In a number of States and Territories, this is currently the responsibility of the administering authority. In some circumstances, the proposed amendment could involve an increased cost to some instrument owners because their instruments will require certification, re-verification or re-certification more frequently. Placing the obligation on the trader to ensure that an instrument has been certified, re-certified or re-verified will free up some resources for trade measurement authorities so that the authorities are better able to monitor trade measurement practices.

The primary objective of trade measurement legislation is to promote fair trading and accuracy in the relevant market places. Trade measurement authorities are responsible for ensuring that traders and consumers are confident that goods are bought and sold in a fair and equitable manner.

This amendment will ensure that all measuring instruments are tested within reasonable time frames. The benefit to the consumer in ensuring that this is done will be that greater confidence can be placed in the practices undertaken by traders in the sale of goods because there will be increased monitoring of trading practices and checkweighing of prepacked articles.

Traders will benefit from being reassured that their measuring instruments are continuing to operate within tolerance levels and that they are not giving product away unknowingly.

National Competition Policy guidelines provide that the benefit to the restriction to the community should outweigh the costs and that the objectives of the legislation cannot be achieved by any other means.

Both traders and consumers will benefit from this amendment and the amendment should not result in any restriction on competition.

You are invited to comment on the amendment. In particular your comments in relation to the following questions are welcomed:

1. Should section 15 of the Trade Measurement Act 1990 be amended as described? Why do you think so?

2. Will the amendment as described have any impact on you whether you are a trader or a consumer?

3. If it is considered that the amendment will impact on you, can you describe the potential costs to you either as a trader or a consumer?

4. Are there any potential restrictions involved in the proposed amendment?

5. If there are considered to be any restrictions, will these restrictions involve any cost or disadvantage to you as either a trader or consumer?

6. Will the proposed amendment have any impact on competition in the market place in which you either trade or purchase goods? If so, what impact will it have?

7. Are there any other issues that you consider relevant?

If you are interested in participating in follow up consultation on these issues, please provide us with a telephone number where you can be contacted during office hours.