18HB

Certain articles must be sold by measurement—articles packed in advance ready for sale

Current

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.

Note:

For an exception to this offence, see subsection (9).

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.

Note:

For an exception to this offence, see subsection (9).

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.

Note:

For an exception to this offence, see subsection (9).

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.

Note:

For an exception to this offence, see subsection (9).

(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).

Trade measurement inspector may give notice to remedy

(7)

A trade measurement inspector may give a person a notice to remedy if:

(a)

the inspector reasonably believes that the person has contravened a provision of this section in relation to an article packed in advance ready for sale; and

(b)

the inspector is satisfied that, despite the contravention:

(i)

like articles could be sold during the remedy period for the notice without there being any material detriment to the purchaser; or

(ii)

like articles could be sold during the remedy period for the notice without there being any material detriment to the purchaser if conditions specified in accordance with subsection (8) are complied with.

Note:

Like article has the meaning given by subsection 18MMA(7).

Notice may specify conditions

(8)

A trade measurement inspector may specify in the notice to remedy one or more conditions that must be complied with by the person during the remedy period for the notice. A condition may only be imposed by the inspector if compliance with the condition would be reasonably likely to ensure that a like article could be sold during the remedy period without there being any material detriment to the purchaser.

Exception—all reasonable steps taken to remedy contravention etc.

(9)

Subsections (1) to (4) do not apply to the person in relation to like articles during the remedy period for the notice if:

(a)

where the inspector, in accordance with subsection (8), specifies in the notice one or more conditions that must be complied with during the remedy period—those conditions are complied with during the remedy period; and

(b)

during the remedy period, the person takes all reasonable steps to remedy the matters that gave rise to the contravention.

Note:

A defendant bears an evidential burden in relation to the matters in subsection (9) (see subsection 13.3(3) of the Criminal Code).

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