Version No. 013
Trade Measurement (Administration) Act 1995
Act No. 60/1995
Version incorporating amendments as at 5 April 2005
table of provisions
SectionPage
1
SectionPage
PART 1—PRELIMINARY
1.Purpose
2.Commencement
3.Definitions
4.Construction of Act
PART 2—ADMINISTRATION
5.Director
6.Declaration for the purposes of the Trade Measurement Act 1995
7.Administration of Acts
8.Functions of Director under Commonwealth regulations
9.Powers of the Director
PART 3—FEES AND CHARGES
10.Certification fees
11.Other fees and charges may be prescribed
12.Recovery of unpaid fees and charges
PART 4—GENERAL
13.Double jeopardy
14.Appeals tribunal
15.Inspector's certificates of authority
16.Search warrant
17.Service
18.Power to serve a notice
19.Form of notice
20.Withdrawal of notice
21.Penalties to be paid for offences under infringement notices
22.Payment of penalty
23.Notice not to prejudice further proceedings
24.Time for instituting proceedings for offence
25.Regulations
PART 5—REPEAL AND CONSEQUENTIALS
26.Repeal of Weights and Measures Act 1958 and savings
27.Transitional
28.Validation of regulations and actions
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ENdNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 013
Trade Measurement (Administration) Act 1995
Act No. 60/1995
Version incorporating amendments as at 5 April 2005
1
Trade Measurement (Administration) Act 1995
Act No. 60/1995
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purpose
The purpose of this Act is—
(a)to provide for matters relating to the administration of the Trade Measurement Act 1995; and
(b)to repeal the Weights and Measures Act 1958 and make provision for consequential matters.
2.Commencement
(1)Part 1 comes into operation on the day on which this Act receives the Royal Assent.
(2)Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in sub-section (2) does not come into operation within the period of 12months beginning on, and including, the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period.
3.Definitions
s. 3
(1)In this Act—
S. 3(1) def. of "Adminis-trative Appeals Tribunal" repealed by No. 52/1998
s. 311(Sch. 1 item 94.1).
*****
"authorised officer" means a person or body appointed under section 9(d);
"Director" means the person for the time being appointed to be the Director, Trade Measurement Victoria for the purposes of section 5;
"inspector" means a person or body appointed under section 9(a).
(2)Unless inconsistent with the context or subject matter, words and expressions defined in the Trade Measurement Act 1995 have the same meaning in this Act.
(3)In this Act—
(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.
4.Construction of Act
This Act must be read and construed as one with the Trade Measurement Act 1995.
______
Part 2—Administration
S. 5 substituted by No. 46/1998
s. 7(Sch. 1), amendedby No.108/2004 s.117(1) (Sch.3 item206).
5.Director
s. 5
A Director, Trade Measurement Victoria, is to be employed under Part 3 of the Public Administration Act 2004.
6.Declaration for the purposes of the Trade Measurement Act 1995
For the purposes of the Trade Measurement Act 1995, the Director is—
(a)the administering authority; and
(b)the licensing authority.
7.Administration of Acts
Subject to the general direction and control of the Minister, the Director has the administration of—
(a)this Act; and
(b)the Trade Measurement Act 1995.
8.Functions of Director under Commonwealth regulations
Subject to the approval of the Minister, the Director may—
(a)hold an appointment made under the Commonwealth National Measurement Regulations; and
(b)exercise any function conferred on the holder of the appointment.
9.Powers of the Director
(1)Without limiting any power conferred by or under the Trade Measurement Act 1995, the powers of the Director include the power to—
(a)with the approval of the Minister, appoint any person or body to be an inspector for the purposes of this Act and the Trade Measurement Act 1995;
(b)enter into an arrangement or agreement with any person or body to supply services, undertake inspection functions or perform other functions under this Act and the Trade Measurement Act 1995;
(c)appoint any person or body to be an authorised agent of the Director and to perform such functions on behalf of the Director as the Director may specify in the instrument of appointment;
(d)appoint any person or body (whether or not an inspector) to be an authorised officer for the purposes of issuing infringement notices.
(2)The Director may by an instrument of delegation delegate to any person or body specified in sub-section (1) any function or power of the Director other than this power of delegation.
s. 9
______
Part 3—Fees and Charges
10.Certification fees
s. 10
(1)A licence may include a condition that the licensee must pay the prescribed certification fee to the Director in respect of any certification of a measuring instrument under the Trade Measurement Act 1995.
(2)Regulations under this Act may make provision for or with respect to the payment of certification fees, including—
(a)as to the time within which the fees must be paid;
(b)requiring the submission by a licensee of returns as to the number and nature of measuring instruments certified by the licensee during the period to which the return relates;
(c)requiring the verification of any such return by statutory declaration.
11.Other fees and charges may be prescribed
(1)Regulations may be made under this Act for and with respect to the imposition, collection and recovery of fees and charges for the purposes of the Trade Measurement Act 1995 and this Act including—
(a)application fees;
(b)licence fees;
(c)charges for the examination of public weighbridges for suitability;
(d)fees payable for the issue of amended licences or certificates and for the issue of duplicate licences and certificates;
(e)charges payable where an inspector keeps an appointment to examine or test a measuring instrument but is unable to carry out the examination or testing because the measuring instrument is unavailable or inaccessible or access to it is unreasonably refused;
(f)charges to re-imburse costs incurred in connection with the examination and testing of a measuring instrument under the Trade Measurement Act 1995;
(g)charges payable by a person where the use of specified labour or equipment provided by the Director is necessary for the exercise of the functions of an inspector;
(h)charges payable for the use by a person of specified equipment provided by the Director;
(i)charges payable for the assessment of accreditation for the granting of servicing licences.
(2)The regulations may provide for a fee or charge under sub-sections (1)(c) to (1)(i) to be calculated on a time basis.
(3)The regulations may provide for the fee payable under section 52 of the Trade Measurement Act 1995 for a licence to be a specified amount or an amount calculated in a specified manner.
12.Recovery of unpaid fees and charges
s. 12
A fee or charge payable under this Act is recoverable as a debt due to the Crown.
______
Part 4—General
13.Double jeopardy
s. 13
(1)If an act or omission is both an offence under the Trade Measurement Act 1995 and an offence under a law of the Commonwealth, or of another State, or of a Territory, a person who—
(a)is convicted of the offence under that law; or
(b)is found by a court to have committed the offence under that law but is not convicted—
is not liable to be proceeded against for the offence under the Trade Measurement Act 1995.
(2)In proceedings under the Trade Measurement Act 1995, a certificate that complies with sub-section (3) in relation to a conviction or finding of a court is conclusive evidence of the conviction or finding unless it is proved—
(a)that the conviction was quashed or set aside; or
(b)that the finding was set aside or reversed.
(3)A certificate complies with this sub-section if it is signed by the registrar or other proper officer of the court that directed the conviction or made the finding and is to the effect—
(a)that a named person was, on a stated date, convicted by that court of a specified offence; or
(b)that a named person charged with a specified offence was, on a stated date, found by that court to have committed the offence but was not convicted.
S. 14
repealed by No. 52/1998
s. 311(Sch. 1 item 94.2),
new s. 14 inserted by No. 17/2000 s.20.
14.Appeals tribunal
s. 14
(1)For the purposes of section 59 of the Trade Measurement Act 1995, the appeals tribunal is the Victorian Civil and Administrative Tribunal.
(2)If a provision of the Victorian Civil and Administrative Tribunal Act 1998 is inconsistent with a provision of the Trade Measurement Act 1995 or of this Act, the provision of the Trade Measurement Act 1995 or of this Act prevails.
15.Inspector's certificates of authority
The Director must issue a certificate of authority to each inspector in the form determined by the Director.
16.Search warrant
(1)With the approval of the Director, an inspector may apply to a magistrate for the issue of a search warrant in relation to particular premises if the inspector believes on reasonable grounds that there is, or may be within the next 72 hours, on the premises a particular thing that may be evidence of the commission of an offence against the Trade Measurement Act 1995.
(2)If a magistrate is satisfied by the evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, on the premises a particular thing that may be evidence of the commission of an offence against the Trade Measurement Act 1995, the magistrate may issue a search warrant authorising an inspector named in the warrant and any assistants the inspector considers necessary—
(a)to enter the premises, or the part of premises, named or described in the warrant; and
(b)to search for and seize a thing named or described in the warrant.
(3)In addition to any other requirement, a search warrant issued under this section must state—
(a) the offence suspected; and
(b)the premises to be searched; and
(c)a description of the thing for which the search is to be made; and
(d)any conditions to which the warrant is subject; and
(e)whether entry is authorised to be made at any time or during stated hours; and
(f)a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.
(4)A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act.
s. 16
(5)The rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.
(6)Before executing a search warrant, the inspector named in the warrant or a person assisting the inspector must announce that he or she is authorised by the warrant to enter the premises and give any person at the premises an opportunity to allow entry to the premises.
(7)The inspector or a person assisting the inspector need not comply with sub-section (6) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure—
(a)the safety of any person; or
(b)that the effective execution of the search warrant is not frustrated.
(8)If the occupier or another person who apparently represents the occupier is present at the premises when a search warrant is being executed, the inspector must—
(a)identity himself or herself to that person by producing his or her certificate of authority for inspection by that person; and
(b)give to that person a copy of the execution copy of the warrant.
17.Service
s. 17
(1)Where under the Trade Measurement Act 1995 any notice or order is required to be given to or served on the occupier of any premises the notice or order may be addressed to the occupier without further name or description and may be given or served by—
(a)leaving it with a person on the premises who is apparently at least 16 years old; or
(b)sending it by certified mail to the occupier at the address of the premises; or
(c)fixing the notice or order or a copy of the notice or order on a conspicuous part of the premises.
(2)Where under the Trade Measurement Act 1995 any notice or order is required to be given to or served on a person, it may be given or served by—
(a)giving it or serving it personally on the person; or
(b)leaving it at or sending it by post to the person at that person's usual or last known residential or business address.
(3)Any notice or order served for the purposes of the Trade Measurement Act 1995 on an owner of any premises is if due service has been made on an owner binding on all persons claiming by, from or under, such owner and on all subsequent owners to the same extent as if the notice or order has been served on each of them.
S. 17(4) amended by No.44/2001 s.3(Sch. item112).
(4)The provisions of this section are in addition to and not in derogation from the provisions of the Corporations Act.
18.Power to serve a notice
s. 18
S. 18(1) amended by No. 58/1998
s. 2.
(1)If an authorised officer has reason to believe that a person has committed an offence against any section of the Trade Measurement Act 1995 or against any regulation made under the Trade Measurement Act 1995 or the Trade Measurement (Administration) Act 1995 which is prescribed for the purposes of this section, he or she may serve an infringement notice on that person.
(2)An infringement notice may be served—
(a)by personally serving the notice upon the alleged offender; or
(b)by sending the notice by post addressed to him or her at his or her last known place of residence or business.
19.Form of notice
s. 19
An infringement notice must—
(a)be in the prescribed form; and
(b)state the penalty fixed by the regulations for the offence; and
(c)state if the amount of the penalty is tendered at the place referred to in the notice the matter will not be brought before the Court unless the notice is withdrawn before the end of the period specified in the notice as the time for payment of the penalty.
20.Withdrawal of notice
(1)The authorised officer may withdraw an infringement notice at any time within 28 days after the notice is served by serving a withdrawal notice on the alleged offender.
(2)An infringement notice may be withdrawn even if the appropriate penalty has been paid.
(3)Once the notice of withdrawal is served, the Director must refund the amount of any penalty paid on an infringement notice before it is withdrawn.
21.Penalties to be paid for offences under infringement notices
The penalty for an offence for which an infringement notice has been issued is the penalty not exceeding 20 penalty units as is prescribed by the regulations and which must not exceed the penalty fixed by the Act for that offence.
22.Payment of penalty
s. 22
(1)If the person pays the penalty shown on the infringement notice within the time shown in the notice or, if the authorised officer allows, at any time before the service of the summons in respect of the offence—
(a)further proceedings may not be taken in respect of the offence; and
(b)no conviction is to be recorded against the person for the offence.
(2)A penalty paid under this section must be applied as if the offender had been convicted of the offence in the Magistrates' Court on a charge filed by the authorised officer who served the infringement notice.
23.Notice not to prejudice further proceedings
(1)If—
(a)a person served with an infringement notice has not paid the penalty within the time specified in the notice; or
(b)an infringement notice is withdrawn—
proceedings may still be taken or continued for the alleged offence.
(2)If proceedings have been taken or continued for an alleged offence because the person has not paid the penalty specified in the infringement notice and a conviction is imposed by the court, the conviction must not be taken to be a conviction for any purpose except in relation to—
(a)the making of the conviction itself; and
(b)subsequent proceedings which may be taken in respect of the conviction itself, including proceedings by way of appeal.
24.Time for instituting proceedings for offence
s. 24
Proceedings for an offence under the Trade Measurement Act 1995 or this Act may be instituted at any time before—
(a)the expiration of the period of 3 years that next succeeds the commission of the offence; or
(b)in the case of an offence under section 28(1) or 32(1)(a) of the Trade Measurement Act 1995, the expiration of the period referred to in paragraph (a) or the expiration of the period of 1 year that succeeds the discovery by an inspector of the commission of the offence, whichever is the later.
25.Regulations
(1)The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
(2)Without limiting or derogating from sub-section (1) or any other provision of this Act, regulations made under this Act may include regulations for or with respect to—
(a)the administration of the Trade Measurement Act 1995;
(b)savings, transitional or consequential provisions consequent on the enactment of the Trade Measurement Act 1995 or the repeal of the Weights and Measures Act 1958.
(3)A power conferred by this Act to make regulations may be exercised—
(a)either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and
(b)so as to make, as respects the cases in relation to which it is exercised—
(i)the same provision for all cases in relation to which the power is exercised, or different provision for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or
(ii)any such provision either unconditionally or subject to any specified condition.
(4)Regulations made under this Act may be made—
(a)so as to apply—
(i)at all times or at a specified time; or
(ii)throughout the whole of the State or in a specified part of the State; or
s. 25
(iii)as specified in both sub-paragraphs (i) and (ii); and
(b)so as to require a matter affected by the regulations to be—
(i)in accordance with a specified standard or specified requirement; or
(ii)approved by or to the satisfaction of a specified person or body or a specified class of persons or bodies; and
(c)so as to provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified; and
(d)so as to impose a penalty not exceeding 20penalty units or 6 months imprisonment for a contravention of the regulations.