Commonwealth: National Measurement Amendment Act 2008 (Cth)

National Measurement Amendment Act 2008 No. 137, 2008 An Act to amend the law in relation to measurement, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Trade measurement National Measurement Act 1960 Schedule 2—Application and transitional provisions Part 1—Preliminary Part 2—General application provisions Part 3—Marks and verification generally Part 4—Permits Part 5—Servicing licences and public weighbridge licences Part 6—Utility meters Part 7—Miscellaneous National Measurement Amendment Act 2008 No. 137, 2008 An Act to amend the law in relation to measurement, and for related purposes [Assented to 8 December 2008] The Parliament of Australia enacts: 1 Short title This Act may be cited as the National Measurement Amendment Act 2008. 2 Commencement This Act commences on 1 July 2009. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Trade measurement National Measurement Act 1960 1 Subsection 3(1) Insert: approved pattern, in relation to a measuring instrument, means a pattern approved for the measuring instrument under section 19A that: (a) is currently in force; or (b) has expired or been cancelled (but not withdrawn) and was in force when the measuring instrument was first verified. 2 Subsection 3(1) Insert: AQS mark has the meaning given by section 18JJ. 3 Subsection 3(1) Insert: AQS sampling procedures are sampling procedures prescribed for the purposes of Subdivision 3‑C of Division 3 of Part VI. 4 Subsection 3(1) Insert: AQS test procedures are test procedures prescribed for the purposes of Subdivision 3‑C of Division 3 of Part VI. 5 Subsection 3(1) Insert: AQS threshold is the threshold prescribed for the purposes of Subdivision 3‑C of Division 3 of Part VI. 6 Subsection 3(1) Insert: article includes a substance. 7 Subsection 3(1) (paragraph (b) of the definition of Australian legal unit of measurement) Omit "subsection 7B(1)", substitute "section 7B". 8 Subsection 3(1) Insert: automated packing machine means a machine that follows a pre‑determined program for automatically measuring articles in pre‑determined quantities as part of the packing process. 9 Subsection 3(1) Insert: business premises means premises or a part of premises: (a) used for the importation, packing, storage or sale of articles or utilities sold, or to be sold, by measurement; or (b) on which a measuring instrument is used for trade; or (c) used for activities incidental to the uses mentioned in paragraph (a) or (b); but does not include premises or a part of premises occupied as a residence or for residential accommodation. 10 Subsection 3(1) Insert: business vehicle means a vehicle: (a) used for the transportation of articles or utilities sold, or to be sold, by measurement (whether packed in advance ready for sale or otherwise); or (b) on which a measuring instrument is used for trade; or (c) used for the measurement of articles or utilities sold, or to be sold, by measurement; or (d) used for activities incidental to the uses mentioned in paragraph (a), (b) or (c). 11 Subsection 3(1) Insert: controller, in relation to premises, a part of premises or a vehicle, means the person apparently in control of the premises, the part of the premises or the vehicle. 12 Subsection 3(1) Insert: earlier corresponding law means any of the following: (a) the Trade Measurement Act 1989 of New South Wales; (b) the Trade Measurement Administration Act 1989 of New South Wales; (c) the Trade Measurement Act 1995 of Victoria; (d) the Trade Measurement (Administration) Act 1995 of Victoria; (e) the Trade Measurement Act 1990 of Queensland; (f) the Trade Measurement Administration Act 1990 of Queensland; (g) the Trade Measurement Act 2006 of Western Australia; (h) the Trade Measurement Administration Act 2006 of Western Australia; (i) the Trade Measurement Act 1993 of South Australia; (j) the Trade Measurement Administration Act 1993 of South Australia; (k) the Trade Measurement Act 1999 of Tasmania; (l) the Trade Measurement (Tasmania) Administration Act 1999 of Tasmania; (m) the Trade Measurement Act 1991 of the Australian Capital Territory; (n) the Trade Measurement (Administration) Act 1991 of the Australian Capital Territory; (o) the Trade Measurement Act of the Northern Territory; (p) the Trade Measurement Administration Act of the Northern Territory; and includes the regulations made under those Acts. 13 Subsection 3(1) Insert: evidential material means any of the following: (a) any thing with respect to which an offence against this Act has been committed or is suspected, on reasonable grounds, to have been committed; (b) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; (c) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence. 14 Subsection 3(1) Insert: inspector's mark means the mark allotted to a trade measurement inspector by the Secretary under subsection 18MA(5). 15 Subsection 3(1) Insert: made available as a public weighbridge has the meaning given by section 3A. 16 Subsection 3(1) Insert: marked: something is marked on a package if: (a) it is marked on the package itself; or (b) it is marked on a label attached to or enclosed with, but visible within, the package. 17 Subsection 3(1) Insert: marking a measuring instrument with a verification mark has the meaning given in subsection (5). 18 Subsection 3(1) Insert: measurement means a determination of number or physical quantity, other than for descriptive purposes only. 19 Subsection 3(1) Insert: measuring instrument gives an inaccurate measurement has the meaning given in subsection (6). 20 Subsection 3(1) (paragraph (b) of the definition of metric system of measurement) Omit "approved; and", substitute "approved.". 21 Subsection 3(1) (paragraph (c) of the definition of metric system of measurement) Repeal the paragraph. 22 Subsection 3(1) Insert: national group test procedures are test procedures with respect to groups of packages prescribed for the purposes of Subdivision 4‑B of Division 4 of Part VI. 23 Subsection 3(1) Insert: national instrument test procedures are procedures for testing measuring instruments determined by the Minister under subsection 18GG(2). 24 Subsection 3(1) Insert: national sampling procedures are sampling procedures prescribed for the purposes of Subdivision 4‑B of Division 4 of Part VI. 25 Subsection 3(1) Insert: national single article test procedures are test procedures with respect to single packages prescribed for the purposes of Subdivision 4‑B of Division 4 of Part VI. 26 Subsection 3(1) Insert: national test threshold is the threshold prescribed for the purposes of Subdivision 4‑B of Division 4 of Part VI. 27 Subsection 3(1) Insert: net measurement, in relation to an article, means the measurement of the article disregarding any packaging or other thing that is not part of the article. 28 Subsection 3(1) Insert: obliterate, in respect of a verification mark, means destroy, or remove and destroy, a verification mark. 29 Subsection 3(1) Insert: package includes: (a) a container, wrapper, confining band or other thing in which an article is packed, or 2 or more articles are packed, for sale as a single item; and (b) anything around which an article is wound or wrapped, or 2 or more articles are wound or wrapped, for sale as a single item. 30 Subsection 3(1) Insert: packed in advance ready for sale has the meaning given by section 18HA. 31 Subsection 3(1) Insert: premises means: (a) an area of land or any other place, whether or not it is enclosed or built on; or (b) a building or other structure. 32 Subsection 3(1) Insert: public weighbridge means a weighbridge that is made available as a public weighbridge. 33 Subsection 3(1) Insert: public weighbridge licence means a licence granted under section 18PB. 34 Subsection 3(1) Insert: public weighbridge licensee means a person to whom a licence is granted under section 18PB. 35 Subsection 3(1) Insert: residential premises means premises, or a part of premises, that is occupied as a residence or for residential accommodation. 36 Subsection 3(1) Insert: seize includes secure against interference. 37 Subsection 3(1) Insert: sell includes barter or exchange. 38 Subsection 3(1) Insert: servicing licence means a licence granted under section 18NB. 39 Subsection 3(1) Insert: servicing licensee means a person to whom a licence is granted under section 18NB. 40 Subsection 3(1) Insert: servicing licensee's mark means the mark approved by the Secretary for use by or on behalf of a servicing licensee in verifying measuring instruments. 41 Subsection 3(1) Insert: shortfall, in relation to an article packed in advance ready for sale that is not marked with an AQS mark, has the meaning given by section 18JR. 42 Subsection 3(1) Insert: this Act includes the regulations and any other instrument made under a provision of this Act. 43 Subsection 3(1) Insert: trade measurement inspector means: (a) in relation to the exercise of a power or the performance of a function or duty in circumstances prescribed under paragraph 18MA(3)(b)—a person appointed to a class of trade measurement inspectors authorised to exercise that power or perform that function or duty in those circumstances; and (b) in relation to the exercise of a power or the performance of a function or duty otherwise—a person appointed to a class of trade measurement inspectors authorised to exercise that power or perform that function or duty. 44 Subsection 3(1) (definition of use for trade) Repeal the definition, substitute: use for trade: a person uses a measuring instrument for trade if: (a) the person is actually or apparently in control of the measuring instrument; and (b) the person uses it, or makes it available for another person to use, for either or both of the following purposes: (i) determining the consideration in respect of a transaction; (ii) determining the amount of a tax. 45 Subsection 3(1) Insert: utility means gas, electricity or water. 46 Subsection 3(1) (definition of utility meter) Omit "Part VA", substitute "Part IV". 47 Subsection 3(1) Insert: utility meter verifier means a person appointed as a utility meter verifier under section 18RA or 18RH. 48 Subsection 3(1) Insert: utility meter verifier's mark means a mark allocated to a person appointed as a verifier in relation to utility meters under section 18RA or 18RH for use by the verifier or its employees (if any), when verifying utility meters. 49 Subsection 3(1) Insert: vehicle includes vessel, aircraft and any other means of conveying persons or goods. 50 Subsection 3(1) (definition of verification) Repeal the definition, substitute: verification, in relation to a measuring instrument, has the meaning given by section 18GG. 51 Subsection 3(1) Insert: verification mark means: (a) in relation to utility meters—a utility meter verifier's mark; and (b) in relation to any other measuring instrument: (i) an inspector's mark; or (ii) a servicing licensee's mark. 52 Subsection 3(1) Insert: verifier: (a) in relation to utility meters—means a person who is permitted to verify the utility meter under section 18GI; and (b) in relation to any other measuring instrument—means a person who is permitted to verify the measuring instrument under section 18GH. 53 Subsection 3(1) (definition of verifying authority) Repeal the definition. 54 Subsection 3(1) Insert: weighbridge means a measuring instrument that is of a capacity of 3 tonnes or more and has one or more platforms by the use of which the measuring instrument is capable of determining the mass of a vehicle or of livestock. 55 At the end of section 3 Add: (5) A reference in this Act to a person marking a measuring instrument with a verification mark includes the marking of the measuring instrument itself, the affixing of a label to the measuring instrument or the marking of a label affixed to the measuring instrument. (6) For the purposes of this Act, a measuring instrument gives an inaccurate measurement if the measuring instrument does not operate within the appropriate limits of error that are permitted under the regulations. (7) A reference in this Act to a particular provision or group of provisions includes a reference to regulations made under that provision or under any one or more of the provisions of that group of provisions. 56 After section 3 Insert: 3A Meaning of made available as a public weighbridge (1) A weighbridge is made available as a public weighbridge if: (a) it is open for use by or on behalf of the public; or (b) it is available for use for a charge. (2) A weighbridge is not made available as a public weighbridge if the weighbridge is used by a person who owns or who has contracted to operate the weighbridge: (a) for the purpose of determining the consideration in an agreement between the person and another person; or (b) for purposes that do not involve another person. (3) The regulations may prescribe other circumstances in which a weighbridge is taken not to be made available as a public weighbridge for the purposes of this Act. 57 Paragraph 4(1)(e) Repeal the paragraph, substitute: (e) to provide for a national system of trade measurement; 58 Subsection 4(3) Repeal the subsection. 59 After section 4A Insert: 4B Application of trade measurement provisions (1) Parts IV to XIII of this Act do not apply to a measurement, or an instrument used for the purposes of a measurement, to determine any of the following: (a) charges relating to telephone calls or the use of internet services; (b) the fare payable for use of a taxi; (c) the charge for the hire of a motor vehicle; (d) tyre pressures; (e) the expiration of time, or the calculation of time, for parking a vehicle. (2) Parts IV to XIII of this Act do not apply to a measuring instrument that is an automated packing machine. (3) Parts IV to XIII of this Act do not apply to a measurement for the purposes of: (a) reporting and disseminating information relating to greenhouse gas emissions, greenhouse gas projects, energy production and energy consumption under the National Greenhouse and Energy Reporting Act 2007; or (b) reporting and disseminating information relating to greenhouse gas emissions or greenhouse gas projects under any other law of the Commonwealth or of a State or Territory; or (c) emissions trading under a law of the Commonwealth or of a State or Territory. 60 Subsection 7B(1) Omit "(1) The", substitute "The". 61 Subsection 7B(1) Omit "issue written", substitute ", by legislative instrument, issue". 62 Subsection 7B(2) Repeal the subsection. 63 Subsection 8A(1) After "The Chief Metrologist may", insert ", by legislative instrument,". 64 Subsection 8A(3) Repeal the subsection. 65 Part VA Repeal the Part, substitute: Part IV—Using measuring instruments for trade Division 1—Overview of Part 18G Overview Overview of Part (1) Measuring instruments must be verified, used in a way that gives an accurate measurement, and be accurate. (2) Division 2 creates offences to deal with these matters. (3) Division 3 establishes the system for verifying measuring instruments. Division 2—Requirements for use of measuring instruments for trade 18GA Measuring instruments used for trade to be verified Offence requiring fault element (1) A person commits an offence if: (a) the person uses a measuring instrument for trade; and (b) the measuring instrument is not verified. Penalty: 100 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person uses a measuring instrument for trade; and (b) the measuring instrument is not verified. Penalty: 20 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) If: (a) a measuring instrument is on premises, or on a part of premises; and (b) the consideration in respect of a transaction or the amount of a tax is determined on those premises, or that part of those premises; it is presumed for the purposes of this section that the measuring instrument has been used for trade on the premises or that part of the premises unless the contrary is established. (5) If: (a) a measuring instrument is in or on a vehicle; and (b) the consideration in respect of a transaction or the amount of a tax is determined in or on that vehicle; it is presumed for the purposes of this section that the measuring instrument has been used for trade in or on the vehicle unless the contrary is established. 18GB Installing unverified measuring instruments Offence requiring fault element (1) A person commits an offence if: (a) the person installs in or on any premises or vehicle a measuring instrument; and (b) the measuring instrument is installed for use for trade; and (c) the measuring instrument is not verified. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person installs in or on any premises or vehicle a measuring instrument; and (b) the measuring instrument is installed for use for trade; and (c) the measuring instrument is not verified. Penalty: 40 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18GC Supplying unverified measuring instruments Offence requiring fault element (1) A person commits an offence if: (a) the person sells or otherwise supplies a measuring instrument; and (b) the measuring instrument is sold or otherwise supplied for use for trade; and (c) the measuring instrument is not verified. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person sells or otherwise supplies a measuring instrument; and (b) the measuring instrument is sold or otherwise supplied for use for trade; and (c) the measuring instrument is not verified. Penalty: 40 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18GD Inaccurate use of measuring instruments Offence requiring fault element (1) A person commits an offence if the person: (a) uses a measuring instrument for trade; and (b) does so in such a way, or under such circumstances, that the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if the person: (a) uses a measuring instrument for trade; and (b) does so in such a way, or under such circumstances, that the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately. Penalty: 40 penalty units. Offence requiring fault element (3) A person commits an offence if: (a) the person does, or fails to do, something in relation to a measuring instrument; and (b) the person's act or omission causes, or is likely to cause, the measuring instrument to give an inaccurate measurement or to give other information (including a statement as to price) inaccurately when used for trade. Penalty: 200 penalty units. Strict liability offence (4) A person commits an offence if: (a) the person does, or fails to do, something in relation to a measuring instrument; and (b) the person's act or omission causes, or is likely to cause, the measuring instrument to give an inaccurate measurement or to give other information (including a statement as to price) inaccurately when used for trade. Penalty: 40 penalty units. (5) Subsections (2) and (4) are offences of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18GE Using or supplying inaccurate measuring instruments Offence requiring fault element (1) A person commits an offence if: (a) the person uses a measuring instrument for trade; and (b) the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person uses a measuring instrument for trade; and (b) the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately. Penalty: 40 penalty units. (3) If: (a) a measuring instrument is on premises, or on a part of premises; and (b) the consideration in respect of a transaction or the amount of a tax is determined on those premises, or that part of those premises; it is presumed for the purposes of subsections (1) and (2) that the measuring instrument has been used for trade on the premises or that part of the premises unless the contrary is established. (4) If: (a) a measuring instrument is in or on a vehicle; and (b) the consideration in respect of a transaction or the amount of a tax is determined in or on that vehicle; it is presumed for the purposes of subsections (1) and (2) that the measuring instrument has been used for trade in or on the vehicle unless the contrary is established. Offence requiring fault element (5) A person commits an offence if: (a) the person sells or otherwise supplies a measuring instrument for use for trade; and (b) the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately. Penalty: 200 penalty units. Strict liability offence (6) A person commits an offence if: (a) the person sells or otherwise supplies a measuring instrument for use for trade; and (b) the measuring instrument gives an inaccurate measurement or gives other information (including a statement as to price) inaccurately. Penalty: 40 penalty units. (7) Subsections (2) and (6) are offences of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. Division 3—Verification of measuring instruments 18GF Overview Overview of Division (1) This Division deals with the verification of measuring instruments. (2) Verification is defined in section 18GG. It is a process of ensuring that measuring instruments operate accurately. (3) Trade measurement inspectors, servicing licensees and employees of servicing licensees are permitted to verify measuring instruments (other than utility meters) (see section 18GH). (4) Utility meter verifiers are permitted to verify utility meters (see section 18GI). (5) Certain requirements must be met before a measuring instrument may be verified (see section 18GK). (6) This Division contains offences for persons who: (a) use a verification mark when not permitted to do so (see section 18GM); and (b) sell or supply measuring instruments that have been marked with a verification mark by a person not permitted to do so (see section 18GN); and (c) mark measuring instruments in a misleading way (see section 18GO); and (d) possess false verification marks (see section 18GP); and (e) fail to obliterate verification marks if a measuring instrument's metrological performance is affected by repairs (see section 18GQ). 18GG Meaning of verification (1) A measuring instrument is verified if: (a) either: (i) a verifier is satisfied that the measuring instrument complies with the requirements for verification set out in section 18GK when tested in accordance with the national instrument test procedures and the measuring instrument is marked with a verification mark; or (ii) if the measuring instrument is treated as one of a batch under the national instrument test procedures—a verifier is satisfied that measuring instruments of that batch comply with the requirements for verification set out in section 18GK when tested in accordance with those procedures and the measuring instrument is marked with a verification mark; and (b) if the instrument is of a class for which a re‑verification period is prescribed—the period since it was last verified or re‑verified does not exceed that re‑verification period. (2) The Minister may, by legislative instrument, determine the national instrument test procedures. (3) A re‑verification period must not be prescribed for utility meters. (4) The regulations may: (a) prescribe circumstances in which a measuring instrument that is treated as one of a batch under the national instrument test procedures may be marked with a verification mark by a person other than the verifier; and (b) provide for the provision of labour, facilities and equipment for the purposes of batch testing measuring instruments; and (c) prescribe circumstances in which a measuring instrument is taken to be marked with a verification mark. 18GH Who is permitted to verify measuring instruments other than utility meters? (1) Subject to the limitations in this section, each of the following persons is permitted to verify a measuring instrument other than a utility meter: (a) a trade measurement inspector; (b) a servicing licensee; (c) an employee of a servicing licensee. Note 1: Trade measurement inspectors are appointed under Part IX. Note 2: Servicing licensees are granted servicing licences under Part X. (2) A trade measurement inspector of a particular class may verify any measuring instrument that an inspector of that class is authorised to verify. (3) A servicing licensee may personally verify a measuring instrument if: (a) the measuring instrument is of a class of measuring instruments that the licensee is licensed to verify; and (b) the licensee is competent to verify the measuring instrument. (4) An employee of a servicing licensee may verify a measuring instrument if: (a) the measuring instrument is of a class of measuring instruments that the licensee is licensed to verify; and (b) the employee is competent to verify the measuring instrument. 18GI Who is permitted to verify utility meters? A utility meter verifier may verify a utility meter. Note: Utility meter verifiers are appointed under Part XIII. 18GJ Register of verification marks The Secretary must keep a register of prescribed particulars relating to verification marks. 18GK Requirements for verification The requirements for verification of a measuring instrument are: (a) the measuring instrument must operate within the appropriate limits of error that are permitted under the regulations; and (b) the measuring instrument must be of an approved pattern. 18GL Standards of measurements to be used for verification (1) The determination of whether the requirements for verification under section 18GK have been complied with must be made as required by section 10. (2) Subsection (1) does not apply if there is not an appropriate standard of measurement in respect of which the measuring instrument is to be verified. 18GM Using a verification mark when not permitted to do so Offence requiring fault element (1) A person commits an offence if: (a) the person marks a measuring instrument with a verification mark; and (b) the person is not permitted to do so. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person marks a measuring instrument with a verification mark; and (b) the person is not permitted to do so. Penalty: 40 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18GN Sale or supply of measuring instrument marked by someone not permitted to do so Offence requiring fault element (1) A person commits an offence if: (a) the person sells or otherwise supplies a measuring instrument for use for trade, or uses a measuring instrument for trade; and (b) the measuring instrument is marked with a verification mark; and (c) the person who marked the measuring instrument with the verification mark was not permitted to do so. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person sells or otherwise supplies a measuring instrument for use for trade, or uses a measuring instrument for trade; and (b) the measuring instrument is marked with a verification mark; and (c) the person who marked the measuring instrument with the verification mark was not permitted to do so. Penalty: 40 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18GO Misleading marks Offence requiring fault element—marking a measuring instrument with a misleading mark (1) A person commits an offence if: (a) the person marks a measuring instrument; and (b) the mark is not a verification mark but is likely to give the impression that it is a verification mark. Penalty: 200 penalty units. Strict liability offence—marking a measuring instrument with a misleading mark (2) A person commits an offence if: (a) the person marks a measuring instrument; and (b) the mark is not a verification mark but is likely to give the impression that it is a verification mark. Penalty: 40 penalty units. Offence requiring fault element—using, selling or supplying a measuring instrument misleadingly marked (3) A person commits an offence if: (a) the person: (i) uses a measuring instrument for trade; or (ii) sells or otherwise supplies a measuring instrument for use for trade; and (b) the measuring instrument is marked; and (c) the mark is not a verification mark but is likely to give the impression that it is a verification mark. Penalty: 200 penalty units. Strict liability offence—using, selling or supplying a measuring instrument misleadingly marked (4) A person commits an offence if: (a) the person: (i) uses a measuring instrument for trade; or (ii) sells or otherwise supplies a measuring instrument for use for trade; and (b) the measuring instrument is marked; and (c) the mark is not a verification mark but is likely to give the impression that it is a verification mark. Penalty: 40 penalty units. Offence requiring fault element—possessing instrument for making misleading mark (5) A person commits an offence if: (a) the person has an instrument or other thing in his or her possession; and (b) the instrument or thing is designed for making a mark on a measuring instrument that is not a verification mark but is likely to give the impression that it is a verification mark. Penalty: 200 penalty units. Strict liability offence—possessing instrument for making misleading mark (6) A person commits an offence if: (a) the person has an instrument or other thing in his or her possession; and (b) the instrument or thing is designed for making a mark on a measuring instrument that is not a verification mark but is likely to give the impression that it is a verification mark. Penalty: 40 penalty units. (7) Subsections (2), (4) and (6) are offences of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18GP Wrongful possession of an instrument for making a verification mark A person commits an offence if: (a) the person has an instrument or other thing in his or her possession; and (b) the instrument or thing is designed for marking a measuring instrument with a verification mark; and (c) the person is not permitted to mark a measuring instrument with that verification mark. Penalty: 200 penalty units. 18GQ Obligation on repair of measuring instrument Offence requiring fault element (1) A person commits an offence if: (a) the person uses a measuring instrument for trade; and (b) the person adjusts or repairs the measuring instrument, or causes the measuring instrument to be adjusted or repaired; and (c) in adjusting or repairing the measuring instrument, the metrological performance of the measuring instrument is affected; and (d) if the person causes the measuring instrument to be adjusted or repaired—the adjustment or repair of the measuring instrument is not performed by a servicing licensee or an employee of a servicing licensee or, in the case of a utility meter, by a utility meter verifier; and (e) the person does not obliterate, or cause to be obliterated, any verification mark that the measuring instrument bears. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person uses a measuring instrument for trade; and (b) the person adjusts or repairs the measuring instrument, or causes the measuring instrument to be adjusted or repaired; and (c) in adjusting or repairing the measuring instrument, the metrological performance of the measuring instrument is affected; and (d) if the person causes the measuring instrument to be adjusted or repaired—the adjustment or repair of the measuring instrument is not performed by a servicing licensee or an employee of a servicing licensee or, in the case of a utility meter, by a utility meter verifier; and (e) the person does not obliterate, or cause to be obliterated, any verification mark that the measuring instrument bears. Penalty: 40 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. Defence (4) Subsections (1) and (2) do not apply if the effect on the measuring instrument can be corrected by normal operational adjustment of the measuring instrument. Note: A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code. Part V—General provisions on using measurement in trade 18H Overview Overview of Part (1) This Part regulates the use of measurement in trade generally. (2) This Part deals with: (a) articles that must be sold by measurement (sections 18HB and 18HC); and (b) the units of measurement that must be used for certain transactions (section 18HD); and (c) the scale intervals of measuring instruments used for certain articles (section 18HE); and (d) unreliable methods of measurement (section 18HF); and (e) the use of certain measuring instruments (section 18HG); and (f) measuring instruments and methods of measurement used in monitoring compliance with this Act (section 18HH). (3) All trade measurement is to be a net measurement (section 18HI). 18HA When is an article packed in advance ready for sale? An article is packed in advance ready for sale once the article is packed in the package in which it will be sold, regardless of whether the package is marked with a measurement or a representation (including a statement as to price) by which the measurement of the article can be worked out. 18HB Certain articles must be sold by measurement—articles packed in advance ready for sale Offence requiring fault element—seller (1) A person commits an offence if: (a) the person sells an article that is packed in advance ready for sale; and (b) the packed article is of a class that, by regulation, must be sold by measurement; and (c) either: (i) the package in which the article is sold is marked with a price that is not determined by measurement; or (ii) there is a marking on or near the receptacle in which the packed article is contained that is marked with a price that is not determined by measurement. Penalty: 100 penalty units. Strict liability offence—seller (2) A person commits an offence if: (a) the person sells an article that is packed in advance ready for sale; and (b) the packed article is of a class that, by regulation, must be sold by measurement; and (c) either: (i) the package in which the article is sold is marked with a price that is not determined by measurement; or (ii) there is a marking on or near the receptacle in which the packed article is contained that is marked with a price that is not determined by measurement. Penalty: 20 penalty units. Offence requiring fault element—possession, offer or exposure for sale (3) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale; and (b) the article has been packed in advance ready for sale; and (c) the article is of a class that, by regulation, must be sold by measurement; and (d) either: (i) the package in which the article is sold is marked with a price that is not determined by measurement; or (ii) there is a marking on or near the receptacle in which the packed article is contained that is marked with a price that is not determined by measurement. Penalty: 100 penalty units. Strict liability offence—possession, offer or exposure for sale (4) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale; and (b) the article has been packed in advance ready for sale; and (c) the article is of a class that, by regulation, must be sold by measurement; and (d) either: (i) the package in which the article is sold is marked with a price that is not determined by measurement; or (ii) there is a marking on or near the receptacle in which the packed article is contained that is marked with a price that is not determined by measurement. Penalty: 20 penalty units. (5) Subsections (2) and (4) are offences of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (6) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1), (2), (3) and (4). 18HC Certain articles must be sold by measurement—other articles Offence requiring fault element (1) A person commits an offence if: (a) the person sells an article that is not packed in advance ready for sale; and (b) the article is of a class that, by regulation, must be sold by measurement; and (c) the price of the article is not determined by measurement. Penalty: 100 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person sells an article that is not packed in advance ready for sale; and (b) the article is of a class that, by regulation, must be sold by measurement; and (c) the price of the article is not determined by measurement. Penalty: 20 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18HD Transactions based on measurement to be in prescribed units of measurement (1) A person commits an offence if: (a) the person sells an article (whether packed in advance ready for sale or otherwise) or a utility for a price determined by reference to measurement of the article; and (b) a unit of measurement is prescribed by the regulations for that article or utility, or articles or utilities of that class, for the purposes of this paragraph; and (c) the price is not a price determined by reference to a measurement of the article or utility in that unit of measurement. Penalty: 40 penalty units. (2) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to an offence against subsection (1). 18HE Measuring instruments used in transactions to have prescribed scale intervals (1) A person commits an offence if: (a) the person sells an article (whether packed in advance ready for sale or otherwise) or a utility for a price determined by reference to measurement of the article; and (b) the regulations prescribe scale intervals for measuring instruments used in the measurement of the article or utility, or articles or utilities of that class; and (c) the price is not a price determined by reference to a measurement of the article or utility using a measuring instrument of those scale intervals. Penalty: 40 penalty units. (2) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (3) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to an offence against subsection (1). 18HF Unreliable methods of measurement (1) The regulations may prescribe unreliable methods of measurement of an article or utility or a class of articles or utilities. (2) If the regulations make provision under subsection (1): (a) the unreliable method of measurement must not be used in working out the amount of any tax (however described) payable by reference to measurement of the article or utility or an article or utility of that class; and (b) no contract, dealing or other transaction is to be made or entered into that requires the unreliable method of measurement to be used in measuring the article or utility or an article or utility of that class for the purpose of determining the consideration under that contract, dealing or transaction; and (c) to the extent that a contract is entered into requiring the unreliable method to be used for that purpose, the contract is null and void. 18HG Limiting use of certain measuring instruments Offence requiring fault element (1) A person commits an offence if: (a) a measuring instrument is of a class that, by regulation, must only be used for prescribed purposes; and (b) the person uses the measuring instrument for trade for another purpose. Penalty: 100 penalty units. Strict liability offence (2) A person commits an offence if: (a) a measuring instrument is of a class that, by regulation, must only be used for prescribed purposes; and (b) the person uses the measuring instrument for trade for another purpose. Penalty: 20 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18HH Measuring instruments and methods of measurement used in monitoring compliance with the Act (1) The regulations may prescribe: (a) measuring instruments, or classes of measuring instruments, to be used by trade measurement inspectors in the measurement of an article or utility, or a class of articles or utilities, for the purpose of monitoring compliance with this Act; and (b) the methods of measurement of an article or utility, or a class of articles or utilities, to be used by trade measurement inspectors in monitoring compliance with this Act. (2) All courts, judges and persons acting judicially must presume that: (a) a measuring instrument or a class of measuring instruments prescribed for an article or utility, or a class of articles or utilities, will, if used correctly, produce an accurate measurement of the article or utility, or articles or utilities of that class; and (b) the use of the method of measurement prescribed for an article or utility, or a class of articles or utilities, will produce an accurate measurement of the article or utility, or articles or utilities of that class. 18HI Articles sold by measurement to be sold by net measurement Offence requiring fault element—sellers (1) A person commits an offence if: (a) the person sells an article (whether packed in advance ready for sale or otherwise) for a price determined by reference to measurement of the article; and (b) the price is not determined by reference to the net measurement of the article when sold or, if an alternative time is prescribed in relation to the article, or articles of that class, at that alternative time. Penalty: 100 penalty units. Strict liability offence—sellers (2) A person commits an offence if: (a) the person sells an article (whether packed in advance ready for sale or otherwise) for a price determined by reference to measurement of the article; and (b) the price is not determined by reference to the net measurement of the article when sold or, if an alternative time is prescribed in relation to the article, or articles of that class, at that alternative time. Penalty: 20 penalty units. Offence requiring fault element—possession, offer or exposure for sale (3) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale, at a particular time (whether packed in advance ready for sale or otherwise) for a price determined by reference to measurement of the article; and (b) the price is not determined by reference to the net measurement of the article at that time or, if an alternative time is prescribed in relation to the article, or articles of that class, at that alternative time. Penalty: 100 penalty units. Strict liability offence—possession, offer or exposure for sale (4) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale, at a particular time (whether packed in advance ready for sale or otherwise) for a price determined by reference to measurement of the article; and (b) the price is not determined by reference to the net measurement of the article at that time or, if an alternative time is prescribed in relation to the article, or articles of that class, at that alternative time. Penalty: 20 penalty units. (5) Subsections (2) and (4) are offences of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (6) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1), (2), (3) and (4). Part VI—Articles packed in advance ready for sale Division 1—Overview of Part 18J Overview Overview of Part (1) This Part sets out the requirements for articles that are packed in advance ready for sale. (2) If an article is packed in advance ready for sale, the package must be marked with certain information such as the name and address of the packer. The use of certain prescribed expressions in relation to measurement on the package is prohibited (see Division 2). (3) It is an offence to pack, import or sell or possess, offer or expose for sale a package that contains less than the measurement represented. There are different methods for determining whether there is a shortfall. Division 3 deals with one of these methods, the Average Quantity System. Division 4 deals with cases where the existence of a shortfall is determined using other methods. (4) A permit may be obtained under Division 5 to import or sell or possess, offer or expose for sale certain articles that have been packed in advance ready for sale and that would otherwise breach Division 2. Division 2—Marking packed articles Subdivision 2‑A—Required package information 18JA Package must be marked with required package information—packer Offence requiring fault element (1) A person commits an offence if: (a) the person packs an article; and (b) the article is packed in advance ready for sale; and (c) the packed article is of a class for which one or more of the following kinds of information is prescribed: (i) the name and address of the person who packed the article or on whose behalf the article was packed; (ii) the measurement of the article; (iii) any other information prescribed for the purposes of this subparagraph; and (d) the person does not mark the package with that information. Penalty: 100 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person packs an article; and (b) the article is packed in advance ready for sale; and (c) the packed article is of a class for which one or more of the following kinds of information is prescribed: (i) the name and address of the person who packed the article or on whose behalf the article was packed; (ii) the measurement of the article; (iii) any other information prescribed for the purposes of this subparagraph; and (d) the person does not mark the package with that information. Penalty: 20 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsections (1) and (2) do not apply as a result of subparagraph (1)(c)(i) or (2)(c)(i) if the person knows that the article is to be sold on the premises on which it was packed for the consumption or use of the purchaser. Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code. (5) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2). 18JB Package must be marked with required package information—importer (1) A person commits an offence if: (a) the person imports into Australia an article; and (b) the article is packed in advance ready for sale; and (c) the packed article is of a class for which one or more of the following kinds of information is prescribed: (i) the name and address of the person who packed the article or on whose behalf the article was packed; (ii) the measurement of the article; (iii) any other information prescribed for the purposes of this subparagraph; and (d) the package is not marked with that information (whether before the article is imported, or by the person after the article is imported). Penalty: 100 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person imports into Australia an article; and (b) the article is packed in advance ready for sale; and (c) the packed article is of a class for which one or more of the following kinds of information is prescribed: (i) the name and address of the person who packed the article or on whose behalf the article was packed; (ii) the measurement of the article; (iii) any other information prescribed for the purposes of this subparagraph; and (d) the package is not marked with that information (whether before the article is imported, or by the person after the article is imported). Penalty: 20 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX. Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code. 18JC Package must be marked with required package information—seller Offence requiring fault element (1) A person commits an offence if: (a) the person sells an article; and (b) the article has been packed in advance ready for sale; and (c) the packed article is of a class for which one or more of the following kinds of information is prescribed: (i) the name and address of the person who packed the article or on whose behalf the article was packed; (ii) the measurement of the article; (iii) the price of the article; (iv) any other information prescribed for the purposes of this subparagraph; and (d) the package is not marked with that information. Penalty: 100 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person sells an article; and (b) the article has been packed in advance ready for sale; and (c) the packed article is of a class for which one or more of the following kinds of information is prescribed: (i) the name and address of the person who packed the article or on whose behalf the article was packed; (ii) the measurement of the article; (iii) the price of the article; (iv) any other information prescribed for the purposes of this subparagraph; and (d) the package is not marked with that information. Penalty: 20 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX. Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code. (5) Subsections (1) and (2) do not apply as a result of subparagraph (1)(c)(i) or (2)(c)(i) if: (a) the article is sold on the premises on which it was packed for the consumption or use of the purchaser; or (b) the article was packed outside Australia. Note: A defendant bears an evidential burden in relation to the matters in subsection (5), see subsection 13.3(3) of the Criminal Code. (6) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2). 18JD Package must be marked with required package information—possession, offer or exposure for sale Offence requiring fault element (1) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale; and (b) the article has been packed in advance ready for sale; and (c) the packed article is of a class for which one or more of the following kinds of information is prescribed: (i) the name and address of the person who packed the article or on whose behalf the article was packed; (ii) the measurement of the article; (iii) the price of the article; (iv) any other information prescribed for the purposes of this subparagraph; and (d) the package is not marked with that information. Penalty: 100 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale; and (b) the article has been packed in advance ready for sale; and (c) the packed article is of a class for which one or more of the following kinds of information is prescribed: (i) the name and address of the person who packed the article or on whose behalf the article was packed; (ii) the measurement of the article; (iii) the price of the article; (iv) any other information prescribed for the purposes of this subparagraph; and (d) the package is not marked with that information. Penalty: 20 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX. Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code. (5) Subsections (1) and (2) do not apply as a result of subparagraph (1)(c)(i) or (2)(c)(i) if: (a) the article is to be sold on the premises on which it was packed for the consumption or use of the purchaser; or (b) the article was packed outside Australia. Note: A defendant bears an evidential burden in relation to the matters in subsection (5), see subsection 13.3(3) of the Criminal Code. (6) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2). 18JE Package must be marked in prescribed manner Offence requiring fault element (1) A person commits an offence if: (a) the person would commit an offence under section 18JA, 18JB, 18JC or 18JD unless the person marked a package with information; and (b) the manner in which that information is to be marked on the package is prescribed by the regulations; and (c) the person does not mark the package in that manner. Penalty: 100 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person would commit an offence under section 18JA, 18JB, 18JC or 18JD unless the person marked a package with information; and (b) the manner in which that information is to be marked on the package is prescribed by the regulations; and (c) the person does not mark the package in that manner. Penalty: 20 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX. Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code. Subdivision 2‑B—Prohibited expressions 18JF Using prohibited expressions—packer Offence requiring fault element (1) A person commits an offence if: (a) the person packs an article; and (b) the article is packed in advance ready for sale; and (c) the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and (d) the person marks the package with the prohibited expression. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person packs an article; and (b) the article is packed in advance ready for sale; and (c) the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and (d) the person marks the package with the prohibited expression. Penalty: 40 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2). 18JG Using prohibited expressions—seller Offence requiring fault element (1) A person commits an offence if: (a) the person sells an article; and (b) the article has been packed in advance ready for sale; and (c) the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and (d) the package is marked with the prohibited expression. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person sells an article; and (b) the article has been packed in advance ready for sale; and (c) the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and (d) the package is marked with the prohibited expression. Penalty: 40 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX. Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code. (5) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2). 18JH Using prohibited expressions—possession, offer or exposure for sale Offence requiring fault element (1) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale; and (b) the article has been packed in advance ready for sale; and (c) the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and (d) the package is marked with the prohibited expression. Penalty: 200 penalty units. Strict liability offence (2) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale; and (b) the article has been packed in advance ready for sale; and (c) the packed article is of a class for which a prohibited expression in relation to the measurement of the article is prescribed for the purposes of this paragraph; and (d) the package is marked with the prohibited expression. Penalty: 40 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsections (1) and (2) do not apply if a permit in relation to the packed article has been issued under section 18JX. Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code. (5) Section 15.2 (extended geographical jurisdiction—category B) of the Criminal Code applies to offences against subsections (1) and (2). Division 3—Average Quantity System for packed articles Subdivision 3‑A—Preliminary 18JI Overview of Division Overview of Division (1) If an article is packed in advance ready for sale, the package may be marked with an AQS mark. (2) AQS stands for Average Quantity System. It is an internationally recognised system for sampling and testing groups of packages to determine whether, on average, they contain the quantities with which they are marked. (3) By marking a package with an AQS mark, a person represents that if the package is included in a group of like packages sampled and tested in accordance with AQS procedures, the group will be found on average to contain a measurement at least equal to the marked measurement. (4) This Division contains offences to deal with cases where this is not so (see Subdivision 3‑C). (5) This Division also contains offences to deal with cases where misleading marks are used, or an AQS mark is placed in the wrong place (see Subdivision 3‑B). Subdivision 3‑B—AQS marks 18JJ What is an AQS mark? An AQS mark is a mark prescribed by the regulations as an AQS mark. 18JK AQS mark must be used in accordance with regulations (1) The regulations may prescribe where an AQS mark is to be marked. Offence requiring fault element (2) A person commits an offence if: (a) the person marks an AQS mark on a package; and (b) the marking is done otherwise than in accordance with the regulations. Penalty: 100 penalty units. Strict liability offence (3) A person commits an offence if: (a) the person marks an AQS mark on a package; and (b) the marking is done otherwise than in accordance with the regulations. Penalty: 20 penalty units. (4) Subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 18JL Using misleading marks Offence requiring fault element—packer (1) A person commits an offence if the person: (a) packs an article in advance ready for sale; and (b) marks the article with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark. Penalty: 200 penalty units. Strict liability offence—packer (2) A person commits an offence if the person: (a) packs an article in advance ready for sale; and (b) marks the article with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark. Penalty: 40 penalty units. Offence requiring fault element—possession, offer or exposure for sale (3) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale; and (b) the article has been packed in advance ready for sale; and (c) the article is marked with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark. Penalty: 200 penalty units. Strict liability offence—possession, offer or exposure for sale (4) A person commits an offence if: (a) the person possesses an article for sale, or offers or exposes it for sale; and (b) the article has been packed in advance ready for sale; and (c) the article is marked with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark. Penalty: 40 penalty units. Offence requiring fault element—seller (5) A person commits an offence if: (a) the person sells an article; and (b) the article has been packed in advance ready for sale; and (c) the article is marked with a mark that is not an AQS mark, but that is likely to give the impression that it is an AQS mark. Penalty: 200 penalty units. Strict liability offence—seller (6) A person