COMPLIANCE AND ENFORCEMENT POLICY (APRIL 2011)
This Trade Measurement compliance and enforcement policy (the Policy) contains general
information only and should not be relied upon for the purposes of a particular matter. The
Policy does not provide legal advice and is not to be relied upon as a source of legal
advice. It is provided as a general guide only and as such any person reading this Policy
should rely upon their own judgment and make their own inquiries including seeking
relevant professional advice before entering into any arrangements or making any
commitment on the basis of any of the material in this Policy. Nothing in this Policy shall be
taken in any way to replace the provisions of the National Measurement Act 1960 (Cth), the
National Trade Measurement Regulations 2009 (Cth) and any other legislative instruments
made pursuant to the National Measurement Act 1960.
© Commonwealth of Australia 2011
CONTENTS
MESSAGE FROM THE GENERAL MANAGER................................................................................................ 2
PURPOSE OF THIS POLICY ............................................................................................................................ 2
BACKGROUND AND JURISDICTION .............................................................................................................. 2
COMPLIANCE AND ENFORCEMENT PRINCIPLES ....................................................................................... 2
PROPORTIONALITY ............................................................................................................................... 2
CONSISTENCY ....................................................................................................................................... 3
TRANSPARENCY ................................................................................................................................... 3
COMPLIANCE STRATEGIES ........................................................................................................................... 3
AWARENESS OF THE NATIONAL TRADE MEASUREMENT SYSTEM .............................................. 3
MONITORING .......................................................................................................................................... 3
CONSULTATION ..................................................................................................................................... 3
PRIORITISATION OF ENFORCEMENT MATTERS ............................................................................... 3
COMPLIANCE AND ENFORCEMENT MODEL ............................................................................................... 4
NON-COMPLIANCE RISK RATING GUIDE ........................................................................................... 4
COMPLIANCE AND ENFORCEMENT MODEL ...................................................................................... 5
ENFORCEMENT OPTIONS .............................................................................................................................. 5
ENFORCEMENT ACTIONS FOR BUSINESS ........................................................................................ 5
ENFORCEMENT ACTIONS FOR LICENSEES ...................................................................................... 6
EDUCATION, MONITORING AND INFORMATION ............................................................................... 6
Notice of non-compliance and monitoring ................................................................... 6
Publications, events, advertising, hotline, training and seminars ............................ 6
ADMINISTRATIVE MEASURE ................................................................................................................ 6
Written warning ................................................................................................................ 6
Infringement notice.......................................................................................................... 7
Disciplinary action ........................................................................................................... 7
Publication of disciplinary action against licensees ................................................... 7
Court enforceable undertaking ...................................................................................... 7
COURT ASSISTED ENFORCEMENT .................................................................................................... 8
Injunction........................................................................................................................... 8
Court enforced undertaking ........................................................................................... 8
CRIMINAL ENFORCEMENT OF THE LAW ............................................................................................ 8
Prosecution....................................................................................................................... 8
Publication of offences ................................................................................................... 8
REFERRAL TO ANOTHER AGENCY ............................................................................................................... 8
COMPLIANCE AND ENFORCEMENT PROCESS ................................................................................. 9
MESSAGE FROM THE GENERAL MANAGER
On 1 July 2010, the new national system of trade measurement commenced under the administration and
regulatory oversight of the National Measurement Institute (NMI) a division of the Australian Government’s
Department of Innovation, Industry, Science and Research.
The NMI is Australia’s peak measurement organisation, responsible for maintaining the nation’s primary
standards of measurement and for providing the legal and technical framework for the dissemination of those
standards. NMI is the only ‘one-stop shop’ for all disciplines of measurement in Australia – analytical,
biological, chemical, physical and legal. We provide measurement expertise, calibration services, chemical
and biological analyses and pattern approval testing.
In Australia an estimated value of $400 billion of goods based on measurement are traded every year. All of
this involves measuring volume, weight, length, area, or the number of goods being bought and sold.
NMI takes its responsibilities for ensuring compliance with the trade measurement regulatory framework
seriously. We aim to ensure that businesses are well informed through timely and concise communications.
This policy has been prepared to assist businesses, organisations and the community in understanding the riskbased approach we take to the application of our compliance and enforcement options in the marketplace.
Dr Valérie Villière
General Manager, Legal Metrology Branch, National Measurement Institute
PURPOSE OF THIS POLICY
The purpose of the Trade Measurement Compliance and Enforcement Policy is to set out the principles
adopted by the National Measurement Institute (NMI) for achieving compliance with the national trade
measurement legislation in the marketplace. The policy outlines the compliance strategies, priorities and
enforcement options available to NMI.
BACKGROUND AND JURISDICTION
NMI is Australia’s peak measurement organisation, a division of the Department of Innovation, Industry,
Science and Research in the Australian Government. NMI is responsible for the administration of the
national measurement legislation and is Australia’s official representative in activities undertaken through the
two international treaties in measurement to which Australia is a signatory, the Metre Convention and the
Convention Establishing an International Organization of Legal Metrology.
The decision by the Council of Australian Governments in April 2007 to have a single regulatory system for
trade measurement administered by the Commonwealth has resulted in NMI also assuming responsibility for
the national trade measurement system in 2010.
NMI aims to provide an efficient national trade measurement system across Australia for the community,
business and government, and to provide confidence in all aspects of trade measurement.
The Commonwealth legislative framework for national measurement including national trade measurement
comprises:
 National Measurement Act 1960
 National Measurement Regulations 1999
 National Trade Measurement Regulations 2009
 National Measurement Guidelines 1999
COMPLIANCE AND ENFORCEMENT PRINCIPLES
NMI exercises its compliance and enforcement powers using the principles of proportionality, consistency
and transparency.
PROPORTIONALITY
Any enforcement action undertaken will be proportionate to the seriousness of the breach of compliance and
resulting consumer detriment.
2
CONSISTENCY
A consistent national approach is taken in interpreting, applying and enforcing the national trade
measurement legislation.
TRANSPARENCY
Guidance material on compliance requirements together with compliance policies and strategies are publicly
available so that regulated entities understand what is expected of them and how their compliance will be
monitored, judged and enforced in the event of a breach of the national trade measurement legislation.
Consumers and regulated entities, where permitted, will be informed of decisions made and the grounds for
the decisions.
COMPLIANCE STRATEGIES
NMI employs a number of strategies to achieve its compliance objectives. These include promoting
awareness of the national trade measurement system, monitoring, consultation, and prioritisation of
enforcement matters.
AWARENESS OF THE NATIONAL TRADE MEASUREMENT SYSTEM
The first strategy used by NMI to ensure compliance with the national trade measurement system is to
promote a high level of awareness. In other words, NMI tries to make sure that:
 consumers are aware of what they have a right to expect in their purchases
 businesses are aware of their obligations under the national trade measurement legislation.
NMI provides information on trade measurement requirements through general and targeted publications, its
website and national hotline. It distributes information to consumers, businesses and licensees as well as
delivering training programs to licensees.
NMI trade measurement inspectors also assist businesses and licensees to understand and comply with
national trade measurement requirements.
MONITORING
As the national trade measurement system has replaced the state and territory regimes, monitoring is
employed to make sure that all businesses and licensees conform to the national trade measurement
system. Monitoring may be strategic, targeted or random and include:
 audits of servicing licensees’ quality management system and competency in verifying measuring
instruments
 checks of measuring instruments used for trade
 checks of markings and measurements of prepacked or non-pre-packed products for sale
 checks of public weighbridges.
Trade measurement inspectors throughout Australia conduct inspections of businesses, and respond to
reports from consumers and other agencies on alleged contraventions of the national trade measurement
legislation.
CONSULTATION
NMI consults with consumer groups and industry associations, and will respond to information and advice
obtained from them in order to address any compliance issues or concerns relating to the national trade
measurement legislation.
PRIORITISATION OF ENFORCEMENT MATTERS
Priority guidelines are set to ensure a balance between the appropriate use of compliance resources and
effective compliance with the national trade measurement legislation. They are based on the levels of
3
consequence and likelihood of non-compliance. The aim is to achieve a high level of consumer and business
protection without unnecessary compliance costs or burdens for businesses and licensees. The factors in
determining enforcement priorities include:
 the extent of financial detriment to consumers or to industry in any contravention of the national trade
measurement legislation
 the extent of repeat contravention over a specified period of time, whether it is the same or different
provisions of the national trade measurement legislation
 referrals from any consumer protection agencies or regulators
 particular contraventions of high public interest
 special circumstances that give enforcement actions added significance such as deterrence of a noncompliant practice within an industry and protection of particularly vulnerable or disadvantaged consumer
groups.
COMPLIANCE AND ENFORCEMENT MODEL
The compliance and enforcement model is a risk-based model where the major determining factors are
consequence and likelihood of non-compliance. Consequence is defined as economic impact and business and
consumer confidence in the regulatory system. Likelihood is defined as the frequency of non-compliance.
An efficient and effective trade measurement compliance system is integral to the functioning of our
economy both domestically and internationally. This compliance and enforcement model seeks to support
businesses by providing clear directions in trade measurement obligations and provides consumers the
assurity that correct measure is good business.
NON-COMPLIANCE RISK RATING GUIDE
4
COMPLIANCE AND ENFORCEMENT MODEL
ENFORCEMENT OPTIONS
NMI’s enforcement objectives are to prevent and/ or stop or minimise contraventions of the national trade
measurement legislation and deter future contravention through appropriate enforcement actions. NMI has a
range of escalating enforcement options which are commensurate with both the level of consequence of
non-compliance and the level of likelihood of non-compliance.
Low level enforcement actions in relation to the national trade measurement legislation are employed when
the consequence and likelihood of non-compliance are also low.
The highest level enforcement action is prosecution. This is generally reserved for situations where the
consequence and likelihood of non-compliance are also highest. NMI’s enforcement options are:
 education and monitoring
 notice of non-compliance
 warning – verbal and/or written
 infringement notice
 disciplinary action against licensees
 enforceable undertaking
 injunction
 prosecution
 publication of offences and disciplinary action against licensees.
ENFORCEMENT ACTIONS FOR BUSINESS
5
ENFORCEMENT ACTIONS FOR LICENSEES
EDUCATION, MONITORING AND INFORMATION
When there is no existing contravention or when the contravention has a low level of consequence and there
is minimal likelihood of continued noncompliance, NMI will employ compliance-based enforcement actions.
Notice of non-compliance and monitoring
Trade measurement inspectors assist business operators and companies by informing them of the type of
compliance relevant to their business that is required during the course of an inspection visit. If a
contravention is detected which can be rectified immediately, trade measurement inspectors will give a
verbal warning and provide guidance on the rectification. Trade measurement inspectors issue a notice of
non-compliance at the conclusion of an inspection if rectification of noncompliance cannot be made
immediately or when appropriate. The notice provides information on the asserted contravention and the
relevant provision(s) of the national trade measurement legislation contravened. This assists a business
operator or company to understand the nature of the noncompliance under the law.
Trade measurement inspectors will revisit noncompliant business operators or companies that have been
issued with a notice of non-compliance to ensure a good understanding of compliance requirements, and
compliance practice is in place.
Publications, events, advertising, hotline, training and seminars
NMI has a range of publications on its website and in hard copies on trade measurement requirements for
different industries and products. It provides comprehensive information for servicing licensees and public
weighbridge licensees. Other information resources for businesses and licensees provided by NMI include:
 events and advertising with new or updated information on trade measurement
 a national trade measurement inquiry hotline
 training courses and seminars.
ADMINISTRATIVE MEASURE
When there are low-to-moderate levels of consequence and likelihood of non-compliance, one of or some of
the following enforcement actions may be undertaken.
Written warning
A warning letter may be issued which details the exact nature of the asserted contravention, refers to the
specific provision(s) of the legislation contravened, and states the required remedial action. Written warnings
will be followed up by further compliance activities. Failure to comply with a written warning will, in most
cases, lead to the issuing of an infringement notice or another enforcement action against the non-compliant
business operator or business.
6
Infringement notice
Trade measurement inspectors may issue an infringement notice if they have reasonable grounds to believe
a provision of the national trade measurement legislation has been contravened where the offence is of strict
liability. A strict liability offence is one which only requires proof that a business operator or company
committed a certain prohibited act. The infringement notice penalty is currently 5 penalty units for each
provision believed to have been contravened (that is $550; as at April 2001, 1 penalty unit = $110). This
option may be employed where:
 there is prima facie evidence of a contravention
 the contravention is not relatively severe by nature and there are no mitigating or aggravating factors
 there have been no previous infringement notices for similar contraventions
 a fine is considered a reasonable penalty.
Disciplinary action
Disciplinary action may be taken against a servicing licensee or a public weighbridge licensee if the licensee
has failed to comply with a provision of the national trade measurement legislation or with a condition of the
licence. Other grounds for disciplinary action include:
 the licensee has been found guilty of an offence involving fraud or dishonesty
 the licensee, the licensee’s employee or the licensee’s contractor is not competent to perform the
appropriate functions over a specified period
 the licensee carries out activities in a dishonest or unfair manner.
The kinds of disciplinary action that may be taken against a licensee are:
 reprimand
 imposing an additional condition on the licence
 suspending the licence for up to 12 months
 cancelling the licence.
An enforceable undertaking from the licensee may be accepted in instead of, or in addition to, taking
disciplinary action. Disciplinary action may also be taken against a utility meter verifier if the appointed
verifier has breached a condition of the appointment. The kinds of disciplinary action that may be taken
against a utility meter verifier are:
 reprimand
 varying or revoking a condition of the verifier’s appointment
 imposing an additional condition on the appointment
 suspending the appointment for up to 12 months
 revoking the appointment.
Publication of disciplinary action against licensees
When disciplinary action is taken against a servicing licensee or a public weighbridge licensee, the grounds
for the disciplinary action and the disciplinary action taken may be publicised.
Court enforceable undertaking
NMI may accept a written undertaking by a business operator or company which admits a contravention in
relation to:
 measuring instruments used for trade
 pre-packed or non-pre-packed products for sale
 a servicing or public weighbridge licence.
The business operator or company will undertake that the contravention will not be repeated. If there is a
breach of a term of the undertaking, an application for a court order directing the business operator or
company to comply with the breached term and any further compensation may be made.
Enforceable undertakings allow more flexibility and broader outcomes than those available through
prosecutions. Successful prosecutions lead to convictions where the outcome is limited to a criminal record
and/or a fine. On the other hand, enforceable undertakings can provide a range of solutions tailored to
particular circumstances of non-compliance within a single remedy. This option may be employed where:
 an undertaking is the appropriate enforcement outcome considering the significance of the contravention
for the community and the market
 a systemic change in a business is required to prevent future contravention
 there is commitment from the business operator or company to stop the conduct that led to the
contravention and not recommence that conduct
 the business operator or company is likely to comply with the terms of the undertaking
 a fine is not an appropriate enforcement option.
7
COURT ASSISTED ENFORCEMENT
When there are moderate-to-high levels of consequence and likelihood of non-compliance, one of the
following enforcement actions may be undertaken to compel compliance.
Injunction
An application for an injunction may be made to restrain a business operator or company from current or
future conduct that constitutes or would constitute an offence under a legislative provision relating to
measuring instruments used for trade, pre-packed or non-pre-packed products for sale. An injunction may be
applied for where the offence is serious and/or the impact of the offence is serious.
Court enforced undertaking
When there is a court enforceable undertaking and the court is satisfied that there is a breach of the term of
the undertaking given by a business operator or company, it may order the business operator or company to
do one or all of the following:
 comply with the term of the undertaking that has been breached
 pay an amount up to the amount of financial benefit gained which was attributable to the breach
 compensate a person who has suffered loss or damage as a result of the breach.
The court can also make any other order that it considers appropriate.
CRIMINAL ENFORCEMENT OF THE LAW
The institution of criminal proceedings for the prosecution of a business operator or company is normally
reserved for a more serious contravention of the national trade measurement legislation or where less
severe enforcement action has not changed the non-compliant behaviour. Criminal enforcement usually
indicates high levels of consequence and likelihood of non-compliance.
Prosecution
NMI will refer an alleged contravention to the Commonwealth Director of Public Prosecutions (CDPP) for
prosecution where there is prima facie sufficient evidence that an offence has been committed and one or
more of the following statements apply:
 the alleged offence produced or will produce significant harm to consumers or industry
 public interest considerations support prosecution action
 other enforcement options are not appropriate or have been employed but have proved ineffective
 the alleged contravention is of such a nature or magnitude that an effective disincentive to potential
offenders is warranted and prosecution is considered to be an appropriate enforcement action
 the compliance history of the non-compliant business operator or company demonstrates a high
compliance risk.
The decision to prosecute rests with the CDPP who will assess the information and determine if there is a
reasonable prospect of a conviction based on admissible, substantial and reliable evidence.
In certain matters such as when the contraventions appear complex and substantial or may be of a politically
sensitive nature, NMI may seek the assistance of the Australian Federal Police (AFP) to conduct
investigations. When the AFP considers that there is sufficient evidence to institute criminal proceedings, it
will commence prosecutions and/ or brief the CDPP. When briefed, the CDPP has the final decision on
whether a prosecution is to be instituted or continued.
A business operator or company found guilty of committing a criminal offence may receive:
 a criminal record; and/or
 a fine.
Publication of offences
Convictions may be publicised relating to the use of measuring instruments for trade, pre-packed or non-prepacked products for sale.
REFERRAL TO ANOTHER AGENCY
Matters that do not fall within the jurisdiction of NMI may however be referred to another Commonwealth,
state or territory agency with the appropriate jurisdiction.
Where possible courses of action may be available under the legislation administered by NMI and other
enforcement bodies, NMI will consult with the other enforcement bodies to decide which body is responsible
for undertaking the enforcement action.
8
COMPLIANCE AND ENFORCEMENT PROCESS
9