UNIT PRICING (EASY COMPARISON OF GROCERY PRICES) BILL 2008

i Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Object of Act....................................................................................... 2

Schedule 1--Amendme nt of the National Measurement Act

1960

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 1

A Bill for an Act to require unit prices of grocery

products sold by measure, weight or volume to be

displayed, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Unit Pricing (Easy comparison of

grocery prices) Act 2008.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 4

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 12 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

4 Object of Act

The object of this Act is to require retailers selling grocery

products to display unit prices for grocery products sold by

measure, weight or volume.

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 3

Schedule 1

Amendment of the National

Measurement Act 1960

1 After section 4A

Insert:

4B Application of Act--unit pricing of grocery products sold by

measure, weight or volume

General rule--Commonwealth law applies

(1) Subject to subsection (2), this Act and the regulations are intended

to apply to the exclusion of any State or Territory law to the extent

that the State or Territory law relates to unit pricing of grocery

products sold by measure, weight or volume.

Exception--certain State and Territory laws coexist with

Commonwealth law

(2) This Act and the regulations are not intended to exclude or limit

the concurrent operation of any State or Territory law relating to

improper practices in connection with unit pricing of grocery

products sold by measure, weight or volume.

2 After Part VA

Insert:

Part VB--Unit pricing of grocery products sold by

measure, weight or volume

Division 1--Preliminary

18ZZG Overvie w of Part

Overview of Part

(1) This Part applies to grocery products sold by retailers by

measure, weight or volume.

Schedule 1 A mendment of the National Measurement Act 1960

4 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

(2) Division 2 sets out the requirements that apply to retailers in

relation to unit pricing of grocery products and provides for

civil penalties.

(3) Division 3 deals with other enforcement in relation to unit

pricing of grocery products.

(4) Division 4 sets out provisions relating to unit pricing

inspectors.

(5) Division 5 sets out the additional functions of the Secretary in

relation to this Part.

18ZZH Interpretation

In this Part, unless the contrary intention appears:

advertisement means any form of advertisement which is made in

order to promote the sale of a grocery product, including sale by

distance contract, and includes an advertisement or product

catalogue on the Internet, but does not include a container or a

label.

consumer means a natural person who buys a grocery product for

purposes that do not fall within the sphere of his or her commercial

or professional activity.

cosmetic products means any substance or preparation intended to

be placed in contact with an external part of the human body, or

with the teeth, the inside of the mouth or throat with a view

exclusively or mainly to one or more of the following purposes:

cleaning, perfuming, changing the appearance of, protecting, and

keeping in good condition the body, or correcting body odour.

distance contract means any contract for the sale of a grocery

product entered into by a retailer and a consumer by any means, or

in any manner, without those persons being simultaneously present

together.

grocery products are products sold by any retail grocery store and

include but are not limited to staple foods such as meats, fruit and

vegetable produce, baked goods and dairy products, canned and

packaged goods, snacks and confectionary, non-alcoholic

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 5

beverages, household goods (tissues, paper towels, food wraps, bin

liners, light bulbs, batteries, and similar products), pharmaceutical

products, cosmetic products, make-up products, toiletries, baby

supplies such as nappies, haberdashery, tobacco and tobacco

products, household cleaning products, pet supplies and other

household supplies, and alcoholic beverages when such beverages

are sold by a retailer of grocery products but exclude clothing,

newspapers, magazines, greetings cards, compact discs, video and

audio tapes, toys, plants, flowers, electrical appliances, kitchen

hardware, gardening equipment and books and grocery product

means any one of them.

grocery products sold in bulk means grocery products which are

not pre-packaged and are weighed or measured at the request of the

consumer and in the presence of the consumer.

infringement notice means an infringement notice under

section 18ZZN.

itinerant retailer means any retailer who, as a pedestrian, or from a

train, aircraft, vehicle, vessel, stall, barrow or other mobile sales

unit, offers directly to a consumer grocery products other than by

means of pre-printed material.

liquid medium means the following products, including in

mixtures and also frozen or quick-frozen, provided that the liquid

is merely an adjunct to the essential elements of a grocery product

and is therefore not a decisive factor for the purchase of the

grocery product: water, salt water, brine, vinegar, aqueous

solutions of salts, food acids, sugars, or other sweetening

substances, and fruit or vegetable juices in the case of tinned fruit

or vegetables.

make-up products means cosmetic products solely intended

temporarily to change the appearance of the face or nails, including

(but not limited to) lipsticks, mascaras, eye shadows, blushers and

concealers.

net drained weight means the weight of a solid food grocery

product when it is presented in a liquid medium, excluding any

materials, substances or items not considered to be part of the

grocery product.

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6 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

online retailer means any individual who or body corporate that

sells or offers or exposes for sale over the Internet grocery products

which fall within the sphere of the online retailer's commercial or

professional activity.

premises includes any building, shop, store, dwelling, kiosk,

temporary construction, or an area in any of the foregoing in which

trading is carried on pursuant to a franchise or concession.

primary indication of quantity means one kilogram, one litre, one

metre, one square metre or one cubic metre of a grocery product.

relevant floor area in relation to a shop means the internal floor

area of the shop excluding any area not used for the retail sale of

grocery products or for the display of such products for retail sale.

retailer means any individual who or body corporate that sells or

offers or exposes for sale directly to a consumer grocery products

which fall within the sphere of the retailer's commercial or

professional activity, and includes an online retailer.

selling price means the final price, including GST and all other

taxes, for a unit of a grocery product, or a given quantity of a

grocery product.

shop includes:

(a) a store, kiosk and a franchise or concession within a shop;

and

(b) in the case of an online retailer-- an online shop, e-shop,

e-store, Internet shop, web shop, online store, or virtual store.

single premises shop means the shop of a retailer that operates

from only that unique location and which has a relevant floor area

not exceeding 200 square metres.

supplementary indication of quantity means an indication of

quantity that is not a primary indication of quantity of a grocery

product, and which can be a lesser or a greater quantity than the

relevant primary indication of quantity of a grocery product.

unit price means the final price, including GST and all other taxes,

for one kilogram, one litre, one metre, one square metre or one

cubic metre of a grocery product except in respect of grocery

products sold by number, where unit price means the final price

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 7

including GST and all other taxes for an individual item of the

grocery product.

Division 2--Requirements for retailers

18ZZI Requirement to provide information about unit pricing

(1) A retailer must prominently display in the retailer's premises or in

each of the retailer's premises posters and pamphlets for the use of

consumers or prospective consumers, containing information about

unit pricing and how it can used by consumers.

(2) A retailer must ensure that the posters and pamphlets required

under subsection (1) are:

(a) unambiguous and easily identifiable; and

(b) clearly visible and legible to consumers and prospective

consumers; and

premises.

(3) A retailer must not contravene this section.

Civil penalty:

(a) for an individual:

(i) in the case of a first or second offence--10 penalty units

or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--100

penalty units or such lower amount as is prescribed by

the regulations;

(b) for a body corporate:

(i) in the case of a first or second offence--100 penalty

units or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--1,000

penalty units or such lower amount as is prescribed by

the regulations.

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8 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

18ZZJ Require ment to indicate selling price

(1) Subject to subsection (2), if a retailer indicates that a grocery

product is or may be for sale to a consumer, the retailer must

indicate the selling price of that grocery product in accordance with

this Part.

(2) Subsection (1) does not apply in relation to:

(a) grocery products sold in bulk; or

(b) an advertisement for a grocery product.

(3) A retailer must not contravene this section.

Civil penalty:

(a) for an individual:

(i) in the case of a first or second offence--100 penalty

units or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--1,000

penalty units or such lower amount as is prescribed by

the regulations;

(b) for a body corporate:

(i) in the case of a first or second offence--1,000 penalty

units or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--10,000

penalty units or such lower amount as is prescribed by

the regulations.

18ZZK Requirement to indicate unit price

(1) Subject to subsections (3) and (4), if a retailer indicates that any

grocery product is or may be for sale to a consumer, the retailer

must indicate the unit price of that grocery product in accordance

with this Part.

(2) The unit price indicated by the retailer must be accurate.

(3) Subsection (1) does not apply in relation to:

(a) any grocery product which is offered by a retailer to

consumers by means of an advertisement which is:

(i) purely aural; or

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 9

(ii) broadcast on television; or

(iii) shown at a cinema; or

(iv) inside a single premises shop; or

(b) any grocery product which comprises an assortment of

different items sold in a single package; or

result of section 18ZZM; or

(d) any grocery product which is sold other than in bulk which is

or may be for sale:

(i) in a single premises shop; or

(ii) by an itinerant retailer.

(4) Subsection (1) applies in relation to an advertisement for a grocery

product unless the selling price of the grocery product is not

indicated in the advertisement.

(5) To avoid doubt, subsection (1) applies in relation to an

advertisement, product catalogue or any other promotional material

on the Internet in relation to a grocery product.

(6) A retailer must not contravene this section.

Civil penalty:

(a) for an individual:

(i) in the case of a first or second offence--100 penalty

units or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--1,000

penalty units or such lower amount as is prescribed by

the regulations;

(b) for a body corporate:

(i) in the case of a first or second offence--1,000 penalty

units or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--10,000

penalty units or such lower amount as is prescribed by

the regulations.

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10 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

18ZZL Manner of indicating selling price and unit price etc.

(1) A retailer must ensure that the indication of the selling price, and if

appropriate the unit price, of a grocery product offered by the

retailer to consumers or to prospective consumers is:

(a) unambiguous and easily identifiable as referring to that

grocery product; and

(b) clearly visible and legible to consumers and prospective

consumers; and

(i) the grocery product; or

(ii) in the case of a grocery product for sale by distance

contract or an advertisement or product catalogue on the

Internet-- the description of the grocery product.

(2) A retailer must ensure that the font of the indication of the unit

price on shelf labels of a grocery product offered by the retailer to

consumers or to prospective consumers is the greater of:

(a) 10 millimetres; or

(b) 50 per cent of the size of the font of the indication of the

selling price.

(3) If, in addition to a unit price, a price per quantity is indicated in

relation to a supplementary indication of quantity, the unit price

must predominate and the price per supplementary indication of

quantity must be expressed in characters no larger than the unit

price.

(4) In the case of a pre-packaged solid food grocery product presented

in a liquid medium, the unit price refers to the net drained weight

of the grocery product. Where a unit price is also given with

reference to the net weight of the grocery product, it must be

clearly indicated which unit price relates to net drained weight and

which to net weight.

(5) A retailer must not contravene this section.

Civil penalty:

(a) for an individual:

(i) in the case of a first or second offence--50 penalty units

or such lower amount as is prescribed by the

regulations;

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 11

(ii) in the case of a third or subsequent offence--500

penalty units or such lower amount as is prescribed by

the regulations;

(b) for a body corporate:

(i) in the case of a first or second offence--500 penalty

units or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--5,000

penalty units or such lower amount as is prescribed by

the regulations.

18ZZM Decimal places and rounding of unit prices

(1) If the unit price of a grocery product falls below $1 it must be

expressed to the nearest 0.1 cent. If the figure denoting one

hundredths of one cent in the unit price is 5 or higher, it must be

rounded up and if it is 4 or lower it must be rounded down.

(2) If the unit price of a grocery product falls above $1.00 it may be

expressed to the nearest:

(a) 1 cent, in which case if the figure denoting tenths of one cent

in the unit price is 5 or higher, it must be rounded up and if it

is 4 or lower it must be rounded down; or

(b) 0.1 cents, in which case if the figure denoting one hundredths

of one cents in the unit price is 5 or higher it must be rounded

up and if it is 4 or lower it must be rounded down.

Division 3--Other enforcement

Subdivision A--Infringement notices

18ZZN Infringement notices

(1) The Secretary may issue to a retailer who is alleged to have

contravened a provision of this Part an infringement notice

requiring the retailer to pay an infringement notice penalty to the

Commonwealth as an alternative to civil proceedings.

(2) The infringement notice penalty must not exceed one-fifth of the

maximum fine that a court could impose on the retailer as a civil

penalty for that contravention.

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12 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

(3) The regulations may make further provision in relation to

infringement notices.

18ZZO Withdrawal of infringement notice

(1) This section applies if an infringement notice is given to a retailer.

(2) The Secretary may, by written notice (the withdrawal notice) given

to a retailer, withdraw the infringement notice.

(3) To be effective, the withdrawal notice must be given to the retailer

within 28 days after the infringement notice was given to the

retailer.

Refund of penalty if infringement notice withdrawn

(4) If:

(a) the penalty specified in the infringement notice is paid; and

(b) the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

18ZZP What happens if infringe ment notice penalty is paid

(1) This section applies if:

(a) an infringement notice relating to an alleged contravention of

a provision of this Part is given to a retailer; and

(b) the infringement notice penalty is paid in accordance with the

infringement notice.

(2) Any liability of the retailer for the alleged contravention is

discharged.

(3) Civil proceedings may not be brought against the retailer for the

alleged contravention.

18ZZQ Effect of Subdivision on civil proceedings

This Subdivision does not:

(a) require an infringement notice to be given in relation to an

alleged contravention of a provision of this Part; or

(b) affect the liability of a retailer to have civil or criminal

proceedings brought against the retailer for an alleged

contravention of a provision of this Part if:

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 13

(i) the retailer does not comply with an infringement notice

relating to the contravention by paying the infringement

notice penalty; or

(ii) an infringement notice relating to the contravention is

not given to the retailer; or

(iii) an infringement notice relating to the contravention is

given to the retailer and subsequently withdrawn.

Subdivision B--Publicising contraventions and offences

18ZZR Secretary may publicise contraventions and offences

(1) The Secretary may publicise, in any way he or she thinks

appropriate:

(a) a contravention against this Act for which a retailer has paid

an infringement notice penalty or a civil penalty; or

(b) an offence against this Act for which a retailer has been

convicted.

(2) This Subdivision does not:

(a) limit the Secretary's powers to publicise a contravention of,

or an offence against, this Act; or

(b) prevent anyone else from publicising a contravention of, or

an offence against, this Act; or

publicise a contravention of, or an offence against, this Act.

Subdivision C--Enforceable undertakings

18ZZS Acceptance of undertakings

(1) This section applies if the Secretary considers that a retailer after

the commencement of this Part has contravened a provision of this

Part.

(2) The Secretary may accept a written undertaking given by the

retailer in connection with that contravention.

(2) The retailer may withdraw or vary the undertaking at any time, but

only with the consent of the Secretary.

Schedule 1 A mendment of the National Measurement Act 1960

14 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

18ZZT Enforce ment of undertakings

(1) If the Secretary considers that a retailer who gave an undertaking

under section 18ZZS has breached any of its terms, the Secretary

may apply to the Federal Court for an order under subsection (2).

(2) If the Federal Court is satisfied that the retailer has breached a term

of the undertaking, the Court may make one or more of the

following orders:

(a) an order directing the retailer to comply with that term of the

undertaking;

(b) any order that the Court considers appropriate directing the

retailer to compensate any person who has suffered loss or

damage as a result of the breach;

Subdivision D--Remedial directions

18ZZU Remedial directions

(1) This section applies if the Secretary is satisfied that a retailer has

contravened, or is contravening, a provision of this Part.

(2) The Secretary may give the retailer a written direction requiring the

retailer to take specified action directed towards ensuring that the

retailer does not contravene the provision, or is unlikely to

contravene the provision, in the future.

(3) The following are examples of the kinds of direction that may be

given to a retailer under subsection (2):

(a) a direction that the retailer implement effective

administrative systems for monitoring compliance with a

provision of this Part;

(b) a direction that the retailer implement a system designed to

give the retailer's officers, employees and agents a

reasonable knowledge and understanding of the requirements

of a provision of this Part, in so far as those requirements

affect the officers, employees or agents concerned.

(4) A retailer must not contravene a direction under subsection (2).

Civil penalty:

(a) for an individual:

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 15

(i) in the case of a first or second offence--10 penalty units

or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--100

penalty units or such lower amount as is prescribed by

the regulations;

(b) for a body corporate:

(i) in the case of a first or second offence--100 penalty

units or such lower amount as is prescribed by the

regulations;

(ii) in the case of a third or subsequent offence--1,000

penalty units or such lower amount as is prescribed by

the regulations.

Remedial direction is not a legislative instrument

(5) A direction under subsection (2) is not a legislative instrument.

Subdivision E--Recovery of pecuniary penalties

18ZZV Civil action for recovery of pecuniary penalties

(1) The Secretary may institute a proceeding in the Federal Court for

the recovery on behalf of the Commonwealth of a pecuniary

penalty for a contravention of a provision of this Part.

(2) A proceeding under subsection (1) may be commenced within 6

years after the contravention.

(3) The Federal Court may direct that 2 or more proceedings under

subsection (1) are to be heard together.

18ZZW When contravention of provision is an offence

(1) Subject to subsection (2), criminal proceedings do not lie against a

retailer only because the retailer has contravened a provision of

Division 2 of this Part.

(2) If a retailer contravenes subsection 18ZZU(4) or a provision of

Division 2 of this Part, either:

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16 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

(a) dishonestly, and intending to gain, whether directly or

indirectly, an advantage for the retailer or for any other

person; or

(b) intending to deceive or defraud someone;

the retailer is guilty of an offence.

Penalty:

(a) for an individual--imprisonment for not longer than 2 years;

(b) for a body corporate--$10,000.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

(3) A retailer who contravenes subsection 18ZZU(4) or a provision of

Division 2 of this Part is not guilty of an offence except as

provided by subsection (2).

Subdivision F--Injunctions

18ZZX Injunctions

(1) If a retailer has engaged, is engaging or is proposing to engage in

conduct that constituted, constitutes or would constitute, a

contravention of a provision of this Part, the Federal Court may, on

the application of the Secretary, grant an injunction:

(a) restraining the retailer from engaging in the conduct; or

(b) requiring the retailer to do an act or thing.

(2) On an application, the Federal Court may, if it thinks it appropriate,

grant an injunction by consent of all parties to the proceedings,

whether or not the Federal Court is satisfied that the retailer has

engaged, is engaging or is proposing to engage in any conduct that

constituted, constitutes or would constitute, a contravention of a

provision of this Part.

(3) The Federal Court may, if it thinks it desirable, grant an interim

injunction pending its determination of an application.

(4) The Federal Court is not to require the Secretary or anyone else, as

a condition of granting an interim injunction, to give an

undertaking as to damages.

(5) The Federal Court may discharge or vary an injunction it has

granted.

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 17

(6) The power to grant or vary an injunction restraining a retailer from

engaging in conduct may be exercised:

(a) whether or not it appears to the Federal Court that the retailer

intends to engage again, or to continue to engage, in such

conduct; and

(b) whether or not the retailer has previously engaged in such

conduct.

(7) The power to grant or vary an injunction requiring a retailer to do

an act or thing may be exercised:

(a) whether or not it appears to the Federal Court that the retailer

intends to refuse or fail again, or to continue to refuse or fail,

to do that act or thing; and

(b) whether or not the retailer has previously refused or failed to

do that act or thing and whether or not there is an imminent

danger of substantial damage to any person if the retailer

refuses or fails to do that act or thing.

18ZZY Other powe rs of Federal Court unaffected

The powers conferred on the Federal Court under this Part are in

addition to, and not instead of, any other powers of the Federal

Court, whether conferred by this Act or otherwise.

Division 4--Unit pricing inspectors

Subdivision A--Appointment of unit pricing inspectors and

identity cards

18ZZZ Appointment of unit pricing inspectors

(1) The Secretary may, in writing, appoint one or more of the

following persons to be a unit pricing inspector for the purposes of

exercising the powers of a unit pricing inspector under this

Division:

(a) an APS employee in the Department;

(b) an employee (whether or not an APS employee) of a

Commonwealth authority;

Commonwealth;

(d) a State or Territory officer.

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18 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

(2) The Secretary may appoint a person mentioned in paragraph (1)(d)

only if the State or Territory concerned agrees to the appointment.

(3) In exercising powers or performing functions as a unit pricing

inspector, a unit pricing inspector must comply with any directions

of the Secretary.

Note:

Part 7.8 of the Criminal Code provides offences in relation to causing

harm to, and impersonation and obstruction of, Commonwealth public

officials.

18ZZZA Identity cards

(1) The Secretary must issue an identity card to a unit pricing inspector

in the form prescribed by the regulations. The identity card must

contain a recent photograph of the unit pricing inspector.

(2) A person is guilty of an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be a unit pricing inspector; and

soon as practicable.

Penalty: 1 penalty unit.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

(3) A unit pricing inspector must carry the identity card at all times

when exercising powers or performing functions as a unit pricing

inspector.

Subdivision B--Powers of unit pricing inspectors

18ZZZB Powers available to unit pricing inspectors for monitoring

compliance

(1) For the purpose of finding out whether this Part or any regulations

made under this Part have been complied with, a unit pricing

inspector may:

(a) enter any business premises at any reasonable time of the

day; and

(b) exercise the powers set out in section 18ZZZD.

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(2) A unit pricing inspector is not authorised to enter premises under

subsection (1) unless:

(a) the occupier of the premises has consented to the entry and

the inspector has shown his or her identity card if required by

the occupier; or

(b) the entry is made under a warrant issued under

section 18ZZZQ.

(3) If the unit pricing inspector is on premises with the consent of the

occupier, the unit pricing inspector must leave the premises if the

occupier asks the unit pricing inspector to do so.

18ZZZC Offence powe rs

(1) This section applies if a unit pricing inspector has reasonable

grounds for suspecting that there may be evidential material on any

business premises.

(2) The unit pricing inspector may:

(a) enter the premises:

(i) with the consent of the occupier after producing his or

her identity card for the inspection of the occupier; or

(ii) under a warrant issued under section 18ZZZR; and

(b) exercise the powers set out in section 18ZZZD in relation to

looking for the evidential material; and

finds it on the premises.

(3) If the evidential material referred to in subsection (1) is or includes

information in a written or electronic form, a unit pricing inspector

may operate equipment on the premises to see whether:

(a) the equipment; or

(b) a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with or is associated with the equipment;

contains the information.

(4) If the unit pricing inspector, after operating equipment at the

premises, finds that the equipment, or that a disk, tape or other

storage device at the premises contains the information, he or she

may:

Schedule 1 A mendment of the National Measurement Act 1960

20 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

(a) seize the equipment or the disk, tape or other storage device;

(b) if the information can, by using facilities at the premises, be

put in documentary form--operate the facilities to put the

information in that form and seize the documents so

produced; or

storage device that:

(i) is brought to the premises; or

(ii) is at the premises and whose use for the purpose has

been agreed to in writing by the occupier of the

premises;

operate the equipment or other facilities to copy the information to

the storage device and remove the storage device from the

premises.

(5) A unit pricing inspector may seize equipment under

paragraph (4)(a) only if:

(a) it is not practicable to put the relevant information in

documentary form as mentioned in paragraph (4)(b) or to

copy the records as mentioned in paragraph (4)(c); or

(b) possession by the occupier of the equipment could constitute

an offence.

(6) If:

(a) in the course of searching for a particular thing, a unit pricing

inspector finds another thing that the unit pricing inspector

believes on reasonable grounds to be evidential material; and

(b) the unit pricing inspector believes, on reasonable grounds,

that it is necessary to seize that other thing in order to prevent

its concealment, loss or destruction, or its use in committing,

continuing or repeating a contravention of a provision of this

Part or the regulations;

the unit pricing inspector may seize that other thing.

(7) If the unit pricing inspector is on premises with the consent of the

occupier, the unit pricing inspector must leave the premises if the

occupier asks the unit pricing inspector to do so.

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 21

(8) A person who obstructs or interferes with a unit pricing inspector

in the exercise of his or her powers under this section is guilty of

an offence.

Penalty: 200 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

18ZZZD General powers of unit pricing inspectors under this

Division

The powers that a unit pricing inspector may exercise in relation to

premises under sections 18ZZZB and 18ZZZC are as follows:

(a) to search the premises and any thing on the premises;

(b) to take photographs or make video or audio recordings or

sketches of the premises or any thing on the premises;

or unit prices or records or documents on the premises;

(d) to take any such indications of selling prices or unit prices or

make copies of them;

(e) to take extracts from or make copies of any such record or

document;

(f) to take onto the premises such equipment and materials as the

unit pricing inspector requires for the purpose of exercising

powers in relation to the premises.

18ZZZE Unit pricing inspector may request persons to answer

questions

(1) If the unit pricing inspector was only authorised to enter business

premises because the occupier of the premises consented to the

entry--the unit pricing inspector may ask the occupier to:

(a) answer any questions put by the unit pricing inspector; and

(b) produce any record or document requested by the unit pricing

inspector.

(2) If the unit pricing inspector was authorised to enter the premises by

a warrant under section 18ZZZQ or 18ZZZR--the unit pricing

inspector has power to require any person in or on the premises to:

(a) answer any questions put by the unit pricing inspector; and

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22 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

(b) produce any record or document requested by the unit

pricing inspector.

(3) A person is guilty of an offence if the person refuses or fails to

comply with subsection (2).

Penalty: 200 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

(4) A person is excused from complying with subsection (2) if the

answer to the question or the production of the record or document

might tend to incriminate the person or expose the person to a

penalty.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4), see subsection 13.3(3) of the Criminal Code.

(5) A person is guilty of an offence if the person:

(a) gives information to a unit pricing inspector, either orally or

in writing; and

(b) gives the information knowing that it is false or misleading in

a material particular.

Penalty: 12 months imprisonment.

Note:

Chapter 2 of the Criminal Code sets out the general principles of

criminal responsibility.

Subdivision C--Obligations of unit pricing inspectors

18ZZZF Unit pricing inspector must produce identity card on

request

A unit pricing inspector is not entitled to exercise any powers

under this Division in relation to premises if:

(a) the occupier of the premises requires the unit pricing

inspector to produce his or her identity card for inspection by

the occupier; and

(b) the unit pricing inspector fails to comply with the

requirement.

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 23

18ZZZG Details of warrant to be given to occupier etc.

(1) If a warrant in relation to business premises is being executed and

the occupier of the premises or another person who apparently

represents the occupier is present at the premises, the unit pricing

inspector must make available to that person a copy of the warrant.

(2) The unit pricing inspector must identify himself or herself to that

person.

(3) The copy of the warrant referred to in subsection (1) need not

include the signature of the magistrate who issued the warrant.

Note:

Warrants are issued under sections 18ZZZQ and 18ZZZR.

18ZZZH Consent

(1) Before obtaining the consent of a person for the purposes of

paragraph 18ZZZB(2)(a) and subparagraph 18ZZZC(2)(a)(i), the

unit pricing inspector must inform the person that he or she may

refuse consent.

(2) An entry of a unit pricing inspector by virtue of the consent of a

person is not lawful unless the person voluntarily consented to the

entry.

18ZZZI Announcement before entry

A unit pricing inspector must, before entering premises under a

warrant:

(a) announce that he or she is authorised to enter the premises;

and

(b) give any person at the premises an opportunity to allow entry

to the premises.

18ZZZJ Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in

section 18ZZZC:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

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24 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in the Federal

Court of Australia for such reasonable amount of compensation as

the Court determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier's

employees or agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

(5) For the purposes of subsection (1):

damage, in relation to data, includes damage by erasure of data or

addition of other data.

18ZZZK Copies of seized things to be provided

(1) Subject to subsection (2), if a unit pricing inspector seizes, under a

warrant in relation to premises:

(a) a document, film, computer file or other thing that can be

readily copied; or

(b) a storage device the information in which can be readily

copied;

the unit pricing inspector must, if requested to do so by the

occupier of the premises or another person who apparently

represents the occupier and who is present when the warrant is

executed, give a copy of the thing or the information to that person

as soon as practicable after the seizure.

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 25

(2) Subsection (1) does not apply if:

(a) the thing that has been seized was seized under paragraph

18ZZZC(4)(b) or (c); or

(b) possession by the occupier of the document, film, computer

file, thing or information could constitute an offence.

18ZZZL Receipts for things seized unde r warrant

(1) If a thing is seized under this Division, the unit pricing inspector

must provide a receipt for the thing.

(2) If 2 or more things are seized or moved, they may be covered in

the one receipt.

18ZZZM Retention of seized things

(1) Subject to any contrary order of a court, if a unit pricing inspector

seizes a thing under this Division, a unit pricing inspector must

return it if:

(a) the reason for its seizure no longer exists or it is decided that

it is not to be used in evidence; or

(b) the period of 60 days after its seizure ends;

whichever first occurs.

(2) At the end of the 60 days specified in subsection (1), a unit pricing

inspector must take reasonable steps to return the thing to the

person from whom it was seized, unless:

(a) proceedings in respect of which the thing may afford

evidence were instituted before the end of the 60 days and

have not been completed (including an appeal to a court in

relation to those proceedings); or

(b) the unit pricing inspector may retain the thing because of an

order under section 18ZZZN; or

an order of a court, of the Commonwealth or of a State or

Territory) to retain, destroy or dispose of the thing.

(3) The thing may be returned under subsection (2) either

unconditionally or on such terms and conditions as the Secretary

sees fit.

Schedule 1 A mendment of the National Measurement Act 1960

26 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

18ZZZN Magistrate may permit a thing to be retained

(1) A unit pricing inspector may apply to a magistrate for an order that

he or she may retain the thing for a further period if:

(a) before the end of 60 days after the seizure; or

(b) before the end of a period previously specified in an order of

a magistrate under this section;

proceedings in respect of which the thing may afford evidence

have not commenced.

(2) If the magistrate is satisfied that it is necessary for a unit pricing

inspector to continue to retain the thing:

(a) for the purposes of an investigation as to whether a

contravention of a provision of this Part has been committed;

(b) to enable evidence of a contravention of a provision of this

Part to be secured for the purposes of civil or criminal

proceedings;

the magistrate may order that a unit pricing inspector may retain

the thing for a period (not being a period exceeding 3 years)

specified in the order.

(3) Before making the application, the unit pricing inspector must:

(a) take reasonable steps to discover who has an interest in the

retention of the thing; and

(b) if it is practicable to do so, notify each person whom the unit

pricing inspector believes to have such an interest of the

proposed application.

Subdivision D--Occupier's rights and responsibilities

18ZZZO Occupie r entitled to be present during search

(1) If a warrant in relation to business premises is being executed and

the occupier of the premises, or another person who apparently

represents the occupier is present at the premises, the person is

entitled to observe the search being conducted.

(2) The right to observe the search being conducted ceases if the

person impedes the search.

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 27

(3) This section does not prevent 2 or more areas of the premises being

searched at the same time.

18ZZZP Occupier to provide unit pricing inspector with all facilities

and assistance

The occupier, or another person who apparently represents the

occupier, of business premises to which a monitoring warrant or an

offence warrant relates must provide the executing officer in

relation to the warrant and any person assisting that officer with all

reasonable facilities and assistance for the effective exercise of

their powers.

Subdivision E--Warrants

18ZZZQ Monitoring warrants

(1) A unit pricing inspector may apply to a magistrate for a warrant

under this section in relation to business premises.

(2) Subject to subsection (3), the magistrate may issue the warrant if

the magistrate is satisfied, by information on oath, that it is

reasonably necessary that one or more unit pricing inspectors

should have access to the premises for the purposes of finding out

whether this Part or the regulations under this Part have been

complied with.

(3) The magistrate must not issue the warrant unless the unit pricing

inspector or some other person has given to the magistrate, either

orally or by affidavit, such further information (if any) as the

magistrate requires concerning the grounds on which the issue of

the warrant is being sought.

(4) The warrant must:

(a) authorise one or more unit pricing inspectors (whether or not

named in the warrant), with such assistance and by such force

as is necessary and reasonable:

(i) to enter the premises; and

(ii) to exercise the powers set out in section 18ZZZD in

relation to the premises; and

(b) state whether the entry is authorised to be made at any time

of the day or during specified hours of the day; and

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28 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

warrant) on which the warrant ceases to have effect; and

(d) state the purpose for which the warrant is issued.

18ZZZR Offence related warrants

(1) A unit pricing inspector may apply to a magistrate for a warrant

under this section in relation to business premises.

(2) Subject to subsection (3), the magistrate may issue the warrant if

the magistrate is satisfied, by information on oath, that there are

reasonable grounds for suspecting that there is, or there may be

within the next 72 hours, in or on the premises evidential material.

(3) The magistrate must not issue the warrant unless the unit pricing

inspector or some other person has given to the magistrate, either

orally or by affidavit, such further information (if any) as the

magistrate requires concerning the grounds on which the issue of

the warrant is being sought.

(4) The warrant must:

(a) name one or more unit pricing inspectors; and

(b) authorise the persons so named, with such assistance and by

such force as is necessary and reasonable:

(i) to enter the premises; and

(ii) to exercise the powers set out in sections 18ZZZC and

18ZZZD; and

(iii) to seize the evidential material; and

of the day or during specified hours of the day; and

(d) specify the day (not more than one week after the issue of the

warrant) on which the warrant ceases to have effect; and

(e) state the purpose for which the warrant is issued.

18ZZZS Offence related warrants by telephone

(1) If, in an urgent case, a unit pricing inspector considers it necessary

to do so, the unit pricing inspector may apply to a magistrate by

telephone for a warrant under section 18ZZZR in relation to

business premises.

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 29

(2) Before applying for the warrant, the unit pricing inspector must

prepare an information of the kind mentioned in subsection

18ZZZR(2) in relation to the premises that sets out the grounds on

which the warrant is sought.

(3) If it is necessary to do so, the unit pricing inspector may apply for

the warrant before the information is sworn.

(4) If the magistrate is satisfied:

(a) after having considered the terms of the information; and

(b) after having received such further information (if any) as the

magistrate requires concerning the grounds on which the

issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the

magistrate may complete and sign the same warrant that the

magistrate would issue under section 18ZZZR if the application

had been made under that section.

(5) If the magistrate completes and signs the warrant:

(a) the magistrate must:

(i) tell the unit pricing inspector what the terms of the

warrant are; and

(ii) tell the unit pricing inspector the day on which and the

time at which the warrant was signed; and

(iii) tell the unit pricing inspector the day (not more than one

week after the magistrate completes and signs the

warrant) on which the warrant ceases to have effect; and

(iv) record on the warrant the reasons for granting the

warrant; and

(b) the unit pricing inspector must:

(i) complete a form of warrant in the same terms as the

warrant completed and signed by the magistrate; and

(ii) write on the form the name of the magistrate and the

day on which and the time at which the warrant was

signed.

(6) The unit pricing inspector must also, not later than the day after the

day of expiry or execution of the warrant, whichever is the earlier,

send to the magistrate:

(a) the form of warrant completed by the unit pricing inspector;

and

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30 Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008

(b) the information referred to in subsection (2), which must

have been duly sworn.

(7) When the magistrate receives those documents, the magistrate

must:

(a) attach them to the warrant that the magistrate completed and

signed; and

(b) deal with them in the way in which the magistrate would

have dealt with the information if the application had been

made under section 18ZZZR.

(8) A form of warrant duly completed under subsection (5) is authority

for any entry, search, seizure or other exercise of a power that the

warrant signed by the magistrate authorises.

(9) If:

(a) it is material, in any proceedings, for a court to be satisfied

that an exercise of a power was authorised by this section;

and

(b) the warrant signed by the magistrate authorising the exercise

of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the

exercise of the power was not authorised by such a warrant.

(10) A reference in this Division to a warrant under section 18ZZZR

includes a reference to a warrant signed by a magistrate under this

section.

Division 5--Additional functions of Secretary

18ZZZT Additional functions of Secretary

(1) In addition to any other functions under this Act, the Secretary has

the following guidance functions in relation to this Part:

(a) to issue minimum standards of procedures that retailers can

implement in order to ensure that they comply with this Part;

(b) to promote an understanding and acceptance of unit pricing;

considers appropriate, guidelines for the avoidance of acts or

practices of a retailer that may or might contravene this Part;

Amend ment of the National Measurement Act 1960 Schedule 1

Unit Pricing (Easy comparison of grocery prices) Bill 2008 No. , 2008 31

(d) to prepare, and to publish in the way that the Secretary

considers appropriate, guidelines and advices to assist

retailers to develop their own procedures to ensure

compliance with this Part;

(e) to evaluate compliance with minimum standards issued under

paragraph (a);

(f) to do anything incidental or conducive to the performance of

any of the preceding functions.

(2) The Secretary may do all things that are necessary or convenient to

be done for or in connection with the performance of his or her

functions under subsection (1).

Commonwealth of Australia Bills

UNIT PRICING (EASY COMPARISON OF GROCERY PRICES) BILL 2008