Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to require unit prices of grocery products sold by measure, weight or volume to be displayed, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 16 May 2008
Introduced Senate 15 May 2008

2008

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Unit Pricing (Easy comparison of grocery prices) Bill 2008

 

No.      , 2008

 

(Senator Fielding)

 

 

 

A Bill for an Act to require unit prices of grocery products sold by measure, weight or volume to be displayed, and for related purposes

  

  


Contents

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

2............ Commencement.................................................................................. 1

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

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

Schedule 1—Amendment of the National Measurement Act 1960            3

 


A Bill for an Act to require unit prices of grocery products sold by measure, weight or volume to be displayed, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Unit Pricing (Easy comparison of grocery prices) Act 2008.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 4 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4  Object of Act

                   The object of this Act is to require retailers selling grocery products to display unit prices for grocery products sold by measure, weight or volume.


 

Schedule 1Amendment of the National Measurement Act 1960

  

1  After section 4A

Insert:

4B  Application of Act—unit pricing of grocery products sold by measure, weight or volume

General rule—Commonwealth law applies

             (1)  Subject to subsection (2), this Act and the regulations are intended to apply to the exclusion of any State or Territory law to the extent that the State or Territory law relates to unit pricing of grocery products sold by measure, weight or volume.

Exception—certain State and Territory laws coexist with Commonwealth law

             (2)  This Act and the regulations are not intended to exclude or limit the concurrent operation of any State or Territory law relating to improper practices in connection with unit pricing of grocery products sold by measure, weight or volume.

2  After Part VA

Insert:

Part VBUnit pricing of grocery products sold by measure, weight or volume

Division 1Preliminary

18ZZG  Overview of Part

Overview of Part

(1)   This Part applies to grocery products sold by retailers by measure, weight or volume.

(2)   Division 2 sets out the requirements that apply to retailers in relation to unit pricing of grocery products and provides for civil penalties.

(3)   Division 3 deals with other enforcement in relation to unit pricing of grocery products.

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

(5)   Division 5 sets out the additional functions of the Secretary in relation to this Part.

18ZZH  Interpretation

In this Part, unless the contrary intention appears:

advertisement means any form of advertisement which is made in order to promote the sale of a grocery product, including sale by distance contract, and includes an advertisement or product catalogue on the Internet, but does not include a container or a label.

consumer means a natural person who buys a grocery product for purposes that do not fall within the sphere of his or her commercial or professional activity.

cosmetic products means any substance or preparation intended to be placed in contact with an external part of the human body, or with the teeth, the inside of the mouth or throat with a view exclusively or mainly to one or more of the following purposes: cleaning, perfuming, changing the appearance of, protecting, and keeping in good condition the body, or correcting body odour.

distance contract means any contract for the sale of a grocery product entered into by a retailer and a consumer by any means, or in any manner, without those persons being simultaneously present together.

grocery products are products sold by any retail grocery store and include but are not limited to staple foods such as meats, fruit and vegetable produce, baked goods and dairy products, canned and packaged goods, snacks and confectionary, non‑alcoholic beverages, household goods (tissues, paper towels, food wraps, bin liners, light bulbs, batteries, and similar products), pharmaceutical products, cosmetic products, make‑up products, toiletries, baby supplies such as nappies, haberdashery, tobacco and tobacco products, household cleaning products, pet supplies and other household supplies, and alcoholic beverages when such beverages are sold by a retailer of grocery products but exclude clothing, newspapers, magazines, greetings cards, compact discs, video and audio tapes, toys, plants, flowers, electrical appliances, kitchen hardware, gardening equipment and books and grocery product means any one of them.

grocery products sold in bulk means grocery products which are not pre‑packaged and are weighed or measured at the request of the consumer and in the presence of the consumer.

infringement notice means an infringement notice under section 18ZZN.

itinerant retailer means any retailer who, as a pedestrian, or from a train, aircraft, vehicle, vessel, stall, barrow or other mobile sales unit, offers directly to a consumer grocery products other than by means of pre‑printed material.

liquid medium means the following products, including in mixtures and also frozen or quick‑frozen, provided that the liquid is merely an adjunct to the essential elements of a grocery product and is therefore not a decisive factor for the purchase of the grocery product: water, salt water, brine, vinegar, aqueous solutions of salts, food acids, sugars, or other sweetening substances, and fruit or vegetable juices in the case of tinned fruit or vegetables.

make‑up products means cosmetic products solely intended temporarily to change the appearance of the face or nails, including (but not limited to) lipsticks, mascaras, eye shadows, blushers and concealers.

net drained weight means the weight of a solid food grocery product when it is presented in a liquid medium, excluding any materials, substances or items not considered to be part of the grocery product.

online retailer means any individual who or body corporate that sells or offers or exposes for sale over the Internet grocery products which fall within the sphere of the online retailer’s commercial or professional activity.

premises includes any building, shop, store, dwelling, kiosk, temporary construction, or an area in any of the foregoing in which trading is carried on pursuant to a franchise or concession.

primary indication of quantity means one kilogram, one litre, one metre, one square metre or one cubic metre of a grocery product.

relevant floor area in relation to a shop means the internal floor area of the shop excluding any area not used for the retail sale of grocery products or for the display of such products for retail sale.

retailer means any individual who or body corporate that sells or offers or exposes for sale directly to a consumer grocery products which fall within the sphere of the retailer’s commercial or professional activity, and includes an online retailer.

selling price means the final price, including GST and all other taxes, for a unit of a grocery product, or a given quantity of a grocery product.

shop includes:

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

                     (b)  in the case of an online retailer— an online shop, e‑shop, e‑store, Internet shop, web shop, online store, or virtual store.

single premises shop means the shop of a retailer that operates from only that unique location and which has a relevant floor area not exceeding 200 square metres.

supplementary indication of quantity means an indication of quantity that is not a primary indication of quantity of a grocery product, and which can be a lesser or a greater quantity than the relevant primary indication of quantity of a grocery product.

unit price means the final price, including GST and all other taxes, for one kilogram, one litre, one metre, one square metre or one cubic metre of a grocery product except in respect of grocery products sold by number, where unit price means the final price including GST and all other taxes for an individual item of the grocery product.

Division 2Requirements for retailers

18ZZI  Requirement to provide information about unit pricing

             (1)  A retailer must prominently display in the retailer’s premises or in each of the retailer’s premises posters and pamphlets for the use of consumers or prospective consumers, containing information about unit pricing and how it can used by consumers.

             (2)  A retailer must ensure that the posters and pamphlets required under subsection (1) are:

                     (a)  unambiguous and easily identifiable; and

                     (b)  clearly visible and legible to consumers and prospective consumers; and

                     (c)  placed at multiple locations throughout the retailer’s premises.

             (3)  A retailer must not contravene this section.

                   Civil penalty:

                     (a)  for an individual:

                              (i)  in the case of a first or second offence—10 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—100 penalty units or such lower amount as is prescribed by the regulations;

                     (b)  for a body corporate:

                              (i)  in the case of a first or second offence—100 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—1,000 penalty units or such lower amount as is prescribed by the regulations.

18ZZJ  Requirement to indicate selling price

             (1)  Subject to subsection (2), if a retailer indicates that a grocery product is or may be for sale to a consumer, the retailer must indicate the selling price of that grocery product in accordance with this Part.

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

                     (a)  grocery products sold in bulk; or

                     (b)  an advertisement for a grocery product.

             (3)  A retailer must not contravene this section.

                   Civil penalty:

                     (a)  for an individual:

                              (i)  in the case of a first or second offence—100 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—1,000 penalty units or such lower amount as is prescribed by the regulations;

                     (b)  for a body corporate:

                              (i)  in the case of a first or second offence—1,000 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—10,000 penalty units or such lower amount as is prescribed by the regulations.

18ZZK  Requirement to indicate unit price

             (1)  Subject to subsections (3) and (4), if a retailer indicates that any grocery product is or may be for sale to a consumer, the retailer must indicate the unit price of that grocery product in accordance with this Part.

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

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

                     (a)  any grocery product which is offered by a retailer to consumers by means of an advertisement which is:

                              (i)  purely aural; or

                             (ii)  broadcast on television; or

                            (iii)  shown at a cinema; or

                            (iv)  inside a single premises shop; or

                     (b)  any grocery product which comprises an assortment of different items sold in a single package; or

                     (c)  any grocery product the unit price of which is 0.0 cents as a result of section 18ZZM; or

                     (d)  any grocery product which is sold other than in bulk which is or may be for sale:

                              (i)  in a single premises shop; or

                             (ii)  by an itinerant retailer.

             (4)  Subsection (1) applies in relation to an advertisement for a grocery product unless the selling price of the grocery product is not indicated in the advertisement.

             (5)  To avoid doubt, subsection (1) applies in relation to an advertisement, product catalogue or any other promotional material on the Internet in relation to a grocery product.

             (6)  A retailer must not contravene this section.

                   Civil penalty:

                     (a)  for an individual:

                              (i)  in the case of a first or second offence—100 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—1,000 penalty units or such lower amount as is prescribed by the regulations;

                     (b)  for a body corporate:

                              (i)  in the case of a first or second offence—1,000 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—10,000 penalty units or such lower amount as is prescribed by the regulations.

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

             (1)  A retailer must ensure that the indication of the selling price, and if appropriate the unit price, of a grocery product offered by the retailer to consumers or to prospective consumers is:

                     (a)  unambiguous and easily identifiable as referring to that grocery product; and

                     (b)  clearly visible and legible to consumers and prospective consumers; and

                     (c)  in proximity to:

                              (i)  the grocery product; or

                             (ii)  in the case of a grocery product for sale by distance contract or an advertisement or product catalogue on the Internet— the description of the grocery product.

             (2)  A retailer must ensure that the font of the indication of the unit price on shelf labels of a grocery product offered by the retailer to consumers or to prospective consumers is the greater of:

                     (a)  10 millimetres; or

                     (b)  50 per cent of the size of the font of the indication of the selling price.

             (3)  If, in addition to a unit price, a price per quantity is indicated in relation to a supplementary indication of quantity, the unit price must predominate and the price per supplementary indication of quantity must be expressed in characters no larger than the unit price.

             (4)  In the case of a pre‑packaged solid food grocery product presented in a liquid medium, the unit price refers to the net drained weight of the grocery product. Where a unit price is also given with reference to the net weight of the grocery product, it must be clearly indicated which unit price relates to net drained weight and which to net weight.

             (5)  A retailer must not contravene this section.

                   Civil penalty:

                     (a)  for an individual:

                              (i)  in the case of a first or second offence—50 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—500 penalty units or such lower amount as is prescribed by the regulations;

                     (b)  for a body corporate:

                              (i)  in the case of a first or second offence—500 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—5,000 penalty units or such lower amount as is prescribed by the regulations.

18ZZM  Decimal places and rounding of unit prices

             (1)  If the unit price of a grocery product falls below $1 it must be expressed to the nearest 0.1 cent. If the figure denoting one hundredths of one cent in the unit price is 5 or higher, it must be rounded up and if it is 4 or lower it must be rounded down.

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

                     (a)  1 cent, in which case if the figure denoting tenths of one cent in the unit price is 5 or higher, it must be rounded up and if it is 4 or lower it must be rounded down; or

                     (b)  0.1 cents, in which case if the figure denoting one hundredths of one cents in the unit price is 5 or higher it must be rounded up and if it is 4 or lower it must be rounded down.

Division 3Other enforcement

Subdivision AInfringement notices

18ZZN  Infringement notices

             (1)  The Secretary may issue to a retailer who is alleged to have contravened a provision of this Part an infringement notice requiring the retailer to pay an infringement notice penalty to the Commonwealth as an alternative to civil proceedings.

             (2)  The infringement notice penalty must not exceed one‑fifth of the maximum fine that a court could impose on the retailer as a civil penalty for that contravention.

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

18ZZO  Withdrawal of infringement notice

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

             (2)  The Secretary may, by written notice (the withdrawal notice) given to a retailer, withdraw the infringement notice.

             (3)  To be effective, the withdrawal notice must be given to the retailer within 28 days after the infringement notice was given to the retailer.

Refund of penalty if infringement notice withdrawn

             (4)  If:

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

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

the Commonwealth is liable to refund the penalty.

18ZZP  What happens if infringement notice penalty is paid

             (1)  This section applies if:

                     (a)  an infringement notice relating to an alleged contravention of a provision of this Part is given to a retailer; and

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

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

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

18ZZQ  Effect of Subdivision on civil proceedings

                   This Subdivision does not:

                     (a)  require an infringement notice to be given in relation to an alleged contravention of a provision of this Part; or

                     (b)  affect the liability of a retailer to have civil or criminal proceedings brought against the retailer for an alleged contravention of a provision of this Part if:

                              (i)  the retailer does not comply with an infringement notice relating to the contravention by paying the infringement notice penalty; or

                             (ii)  an infringement notice relating to the contravention is not given to the retailer; or

                            (iii)  an infringement notice relating to the contravention is given to the retailer and subsequently withdrawn.

Subdivision BPublicising contraventions and offences

18ZZR  Secretary may publicise contraventions and offences

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

                     (a)  a contravention against this Act for which a retailer has paid an infringement notice penalty or a civil penalty; or

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

             (2)  This Subdivision does not:

                     (a)  limit the Secretary’s powers to publicise a contravention of, or an offence against, this Act; or

                     (b)  prevent anyone else from publicising a contravention of, or an offence against, this Act; or

                     (c)  affect any obligation (however imposed) on anyone to publicise a contravention of, or an offence against, this Act.

Subdivision CEnforceable undertakings

18ZZS  Acceptance of undertakings

             (1)  This section applies if the Secretary considers that a retailer after the commencement of this Part has contravened a provision of this Part.

             (2)  The Secretary may accept a written undertaking given by the retailer in connection with that contravention.

             (2)  The retailer may withdraw or vary the undertaking at any time, but only with the consent of the Secretary.

18ZZT  Enforcement of undertakings

             (1)  If the Secretary considers that a retailer who gave an undertaking under section 18ZZS has breached any of its terms, the Secretary may apply to the Federal Court for an order under subsection (2).

             (2)  If the Federal Court is satisfied that the retailer has breached a term of the undertaking, the Court may make one or more of the following orders:

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

                     (b)  any order that the Court considers appropriate directing the retailer to compensate any person who has suffered loss or damage as a result of the breach;

                     (c)  any other order that the Court considers appropriate.

Subdivision DRemedial directions

18ZZU  Remedial directions

             (1)  This section applies if the Secretary is satisfied that a retailer has contravened, or is contravening, a provision of this Part.

             (2)  The Secretary may give the retailer a written direction requiring the retailer to take specified action directed towards ensuring that the retailer does not contravene the provision, or is unlikely to contravene the provision, in the future.

             (3)  The following are examples of the kinds of direction that may be given to a retailer under subsection (2):

                     (a)  a direction that the retailer implement effective administrative systems for monitoring compliance with a provision of this Part;

                     (b)  a direction that the retailer implement a system designed to give the retailer’s officers, employees and agents a reasonable knowledge and understanding of the requirements of a provision of this Part, in so far as those requirements affect the officers, employees or agents concerned.

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

                   Civil penalty:

                     (a)  for an individual:

                              (i)  in the case of a first or second offence—10 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—100 penalty units or such lower amount as is prescribed by the regulations;

                     (b)  for a body corporate:

                              (i)  in the case of a first or second offence—100 penalty units or such lower amount as is prescribed by the regulations;

                             (ii)  in the case of a third or subsequent offence—1,000 penalty units or such lower amount as is prescribed by the regulations.

Remedial direction is not a legislative instrument

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

Subdivision ERecovery of pecuniary penalties

18ZZV  Civil action for recovery of pecuniary penalties

             (1)  The Secretary may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty for a contravention of a provision of this Part.

             (2)  A proceeding under subsection (1) may be commenced within 6 years after the contravention.

             (3)  The Federal Court may direct that 2 or more proceedings under subsection (1) are to be heard together.

18ZZW  When contravention of provision is an offence

             (1)  Subject to subsection (2), criminal proceedings do not lie against a retailer only because the retailer has contravened a provision of Division 2 of this Part.

             (2)  If a retailer contravenes subsection 18ZZU(4) or a provision of Division 2 of this Part, either:

                     (a)  dishonestly, and intending to gain, whether directly or indirectly, an advantage for the retailer or for any other person; or

                     (b)  intending to deceive or defraud someone;

the retailer is guilty of an offence.

                   Penalty:

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

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

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (3)  A retailer who contravenes subsection 18ZZU(4) or a provision of Division 2 of this Part is not guilty of an offence except as provided by subsection (2).

Subdivision FInjunctions

18ZZX  Injunctions

             (1)  If a retailer has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute, a contravention of a provision of this Part, the Federal Court may, on the application of the Secretary, grant an injunction:

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

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

             (2)  On an application, the Federal Court may, if it thinks it appropriate, grant an injunction by consent of all parties to the proceedings, whether or not the Federal Court is satisfied that the retailer has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute, a contravention of a provision of this Part.

             (3)  The Federal Court may, if it thinks it desirable, grant an interim injunction pending its determination of an application.

             (4)  The Federal Court is not to require the Secretary or anyone else, as a condition of granting an interim injunction, to give an undertaking as to damages.

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

             (6)  The power to grant or vary an injunction restraining a retailer from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the Federal Court that the retailer intends to engage again, or to continue to engage, in such conduct; and

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

             (7)  The power to grant or vary an injunction requiring a retailer to do an act or thing may be exercised:

                     (a)  whether or not it appears to the Federal Court that the retailer intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

                     (b)  whether or not the retailer has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the retailer refuses or fails to do that act or thing.

18ZZY  Other powers of Federal Court unaffected

                   The powers conferred on the Federal Court under this Part are in addition to, and not instead of, any other powers of the Federal Court, whether conferred by this Act or otherwise.

Division 4Unit pricing inspectors

Subdivision AAppointment of unit pricing inspectors and identity cards

18ZZZ  Appointment of unit pricing inspectors

             (1)  The Secretary may, in writing, appoint one or more of the following persons to be a unit pricing inspector for the purposes of exercising the powers of a unit pricing inspector under this Division:

                     (a)  an APS employee in the Department;

                     (b)  an employee (whether or not an APS employee) of a Commonwealth authority;

                     (c)  the holder of an office established by or under a law of the Commonwealth;

                     (d)  a State or Territory officer.

             (2)  The Secretary may appoint a person mentioned in paragraph (1)(d) only if the State or Territory concerned agrees to the appointment.

             (3)  In exercising powers or performing functions as a unit pricing inspector, a unit pricing inspector must comply with any directions of the Secretary.

Note:          Part 7.8 of the Criminal Code provides offences in relation to causing harm to, and impersonation and obstruction of, Commonwealth public officials.

18ZZZA  Identity cards

             (1)  The Secretary must issue an identity card to a unit pricing inspector in the form prescribed by the regulations. The identity card must contain a recent photograph of the unit pricing inspector.

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

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

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

                     (c)  the person does not return the identity card to the Secretary as soon as practicable.

Penalty:  1 penalty unit.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (3)  A unit pricing inspector must carry the identity card at all times when exercising powers or performing functions as a unit pricing inspector.

Subdivision BPowers of unit pricing inspectors

18ZZZB  Powers available to unit pricing inspectors for monitoring compliance

             (1)  For the purpose of finding out whether this Part or any regulations made under this Part have been complied with, a unit pricing inspector may:

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

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

             (2)  A unit pricing inspector is not authorised to enter premises under subsection (1) unless:

                     (a)  the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or

                     (b)  the entry is made under a warrant issued under section 18ZZZQ.

             (3)  If the unit pricing inspector is on premises with the consent of the occupier, the unit pricing inspector must leave the premises if the occupier asks the unit pricing inspector to do so.

18ZZZC  Offence powers

             (1)  This section applies if a unit pricing inspector has reasonable grounds for suspecting that there may be evidential material on any business premises.

             (2)  The unit pricing inspector may:

                     (a)  enter the premises:

                              (i)  with the consent of the occupier after producing his or her identity card for the inspection of the occupier; or

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

                     (b)  exercise the powers set out in section 18ZZZD in relation to looking for the evidential material; and

                     (c)  seize the evidential material, if the unit pricing inspector finds it on the premises.

             (3)  If the evidential material referred to in subsection (1) is or includes information in a written or electronic form, a unit pricing inspector may operate equipment on the premises to see whether:

                     (a)  the equipment; or

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

                              (i)  is on the premises; and

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

contains the information.

             (4)  If the unit pricing inspector, after operating equipment at the premises, finds that the equipment, or that a disk, tape or other storage device at the premises contains the information, he or she may:

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

                     (b)  if the information can, by using facilities at the premises, be put in documentary form—operate the facilities to put the information in that form and seize the documents so produced; or

                     (c)  if the information can be transferred to disk, tape or other storage device that:

                              (i)  is brought to the premises; or

                             (ii)  is at the premises and whose use for the purpose has been agreed to in writing by the occupier of the premises;

operate the equipment or other facilities to copy the information to the storage device and remove the storage device from the premises.

             (5)  A unit pricing inspector may seize equipment under paragraph (4)(a) only if:

                     (a)  it is not practicable to put the relevant information in documentary form as mentioned in paragraph (4)(b) or to copy the records as mentioned in paragraph (4)(c); or

                     (b)  possession by the occupier of the equipment could constitute an offence.

             (6)  If:

                     (a)  in the course of searching for a particular thing, a unit pricing inspector finds another thing that the unit pricing inspector believes on reasonable grounds to be evidential material; and

                     (b)  the unit pricing inspector believes, on reasonable grounds, that it is necessary to seize that other thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating a contravention of a provision of this Part or the regulations;

the unit pricing inspector may seize that other thing.

             (7)  If the unit pricing inspector is on premises with the consent of the occupier, the unit pricing inspector must leave the premises if the occupier asks the unit pricing inspector to do so.

             (8)  A person who obstructs or interferes with a unit pricing inspector in the exercise of his or her powers under this section is guilty of an offence.

Penalty:  200 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

18ZZZD  General powers of unit pricing inspectors under this Division

                   The powers that a unit pricing inspector may exercise in relation to premises under sections 18ZZZB and 18ZZZC are as follows:

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

                     (b)  to take photographs or make video or audio recordings or sketches of the premises or any thing on the premises;

                     (c)  to inspect any grocery products, indications of selling prices or unit prices or records or documents on the premises;

                     (d)  to take any such indications of selling prices or unit prices or make copies of them;

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

                      (f)  to take onto the premises such equipment and materials as the unit pricing inspector requires for the purpose of exercising powers in relation to the premises.

18ZZZE  Unit pricing inspector may request persons to answer questions

             (1)  If the unit pricing inspector was only authorised to enter business premises because the occupier of the premises consented to the entry—the unit pricing inspector may ask the occupier to:

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

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

             (2)  If the unit pricing inspector was authorised to enter the premises by a warrant under section 18ZZZQ or 18ZZZR—the unit pricing inspector has power to require any person in or on the premises to:

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

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

             (3)  A person is guilty of an offence if the person refuses or fails to comply with subsection (2).

Penalty:  200 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (4)  A person is excused from complying with subsection (2) if the answer to the question or the production of the record or document might tend to incriminate the person or expose the person to a penalty.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code.

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

                     (a)  gives information to a unit pricing inspector, either orally or in writing; and

                     (b)  gives the information knowing that it is false or misleading in a material particular.

Penalty:  12 months imprisonment.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Subdivision CObligations of unit pricing inspectors

18ZZZF  Unit pricing inspector must produce identity card on request

                   A unit pricing inspector is not entitled to exercise any powers under this Division in relation to premises if:

                     (a)  the occupier of the premises requires the unit pricing inspector to produce his or her identity card for inspection by the occupier; and

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

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

             (1)  If a warrant in relation to business premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the unit pricing inspector must make available to that person a copy of the warrant.

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

             (3)  The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant.

Note:          Warrants are issued under sections 18ZZZQ and 18ZZZR.

18ZZZH  Consent

             (1)  Before obtaining the consent of a person for the purposes of paragraph 18ZZZB(2)(a) and subparagraph 18ZZZC(2)(a)(i), the unit pricing inspector must inform the person that he or she may refuse consent.

             (2)  An entry of a unit pricing inspector by virtue of the consent of a person is not lawful unless the person voluntarily consented to the entry.

18ZZZI  Announcement before entry

                   A unit pricing inspector must, before entering premises under a warrant:

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

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

18ZZZJ  Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of equipment being operated as mentioned in section 18ZZZC:

                              (i)  damage is caused to the equipment; or

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

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

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

damage, in relation to data, includes damage by erasure of data or addition of other data.

18ZZZK  Copies of seized things to be provided

             (1)  Subject to subsection (2), if a unit pricing inspector seizes, under a warrant in relation to premises:

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

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

the unit pricing inspector must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.

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

                     (a)  the thing that has been seized was seized under paragraph 18ZZZC(4)(b) or (c); or

                     (b)  possession by the occupier of the document, film, computer file, thing or information could constitute an offence.

18ZZZL  Receipts for things seized under warrant

             (1)  If a thing is seized under this Division, the unit pricing inspector must provide a receipt for the thing.

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

18ZZZM  Retention of seized things

             (1)  Subject to any contrary order of a court, if a unit pricing inspector seizes a thing under this Division, a unit pricing inspector must return it if:

                     (a)  the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

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

whichever first occurs.

             (2)  At the end of the 60 days specified in subsection (1), a unit pricing inspector must take reasonable steps to return the thing to the person from whom it was seized, unless:

                     (a)  proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

                     (b)  the unit pricing inspector may retain the thing because of an order under section 18ZZZN; or

                     (c)  a unit pricing inspector is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.

             (3)  The thing may be returned under subsection (2) either unconditionally or on such terms and conditions as the Secretary sees fit.

18ZZZN  Magistrate may permit a thing to be retained

             (1)  A unit pricing inspector may apply to a magistrate for an order that he or she may retain the thing for a further period if:

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

                     (b)  before the end of a period previously specified in an order of a magistrate under this section;

proceedings in respect of which the thing may afford evidence have not commenced.

             (2)  If the magistrate is satisfied that it is necessary for a unit pricing inspector to continue to retain the thing:

                     (a)  for the purposes of an investigation as to whether a contravention of a provision of this Part has been committed; or

                     (b)  to enable evidence of a contravention of a provision of this Part to be secured for the purposes of civil or criminal proceedings;

the magistrate may order that a unit pricing inspector may retain the thing for a period (not being a period exceeding 3 years) specified in the order.

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

                     (a)  take reasonable steps to discover who has an interest in the retention of the thing; and

                     (b)  if it is practicable to do so, notify each person whom the unit pricing inspector believes to have such an interest of the proposed application.

Subdivision DOccupier’s rights and responsibilities

18ZZZO  Occupier entitled to be present during search

             (1)  If a warrant in relation to business premises is being executed and the occupier of the premises, or another person who apparently represents the occupier is present at the premises, the person is entitled to observe the search being conducted.

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

             (3)  This section does not prevent 2 or more areas of the premises being searched at the same time.

18ZZZP  Occupier to provide unit pricing inspector with all facilities and assistance

The occupier, or another person who apparently represents the occupier, of business premises to which a monitoring warrant or an offence warrant relates must provide the executing officer in relation to the warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.

Subdivision EWarrants

18ZZZQ  Monitoring warrants

             (1)  A unit pricing inspector may apply to a magistrate for a warrant under this section in relation to business premises.

             (2)  Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath, that it is reasonably necessary that one or more unit pricing inspectors should have access to the premises for the purposes of finding out whether this Part or the regulations under this Part have been complied with.

             (3)  The magistrate must not issue the warrant unless the unit pricing inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

             (4)  The warrant must:

                     (a)  authorise one or more unit pricing inspectors (whether or not named in the warrant), with such assistance and by such force as is necessary and reasonable:

                              (i)  to enter the premises; and

                             (ii)  to exercise the powers set out in section 18ZZZD in relation to the premises; and

                     (b)  state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and

                     (c)  specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and

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

18ZZZR  Offence related warrants

             (1)  A unit pricing inspector may apply to a magistrate for a warrant under this section in relation to business premises.

             (2)  Subject to subsection (3), the magistrate may issue the warrant if the magistrate is satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, in or on the premises evidential material.

             (3)  The magistrate must not issue the warrant unless the unit pricing inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

             (4)  The warrant must:

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

                     (b)  authorise the persons so named, with such assistance and by such force as is necessary and reasonable:

                              (i)  to enter the premises; and

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

                            (iii)  to seize the evidential material; and

                     (c)  state whether the entry is authorised to be made at any time of the day or during specified hours of the day; and

                     (d)  specify the day (not more than one week after the issue of the warrant) on which the warrant ceases to have effect; and

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

18ZZZS  Offence related warrants by telephone

             (1)  If, in an urgent case, a unit pricing inspector considers it necessary to do so, the unit pricing inspector may apply to a magistrate by telephone for a warrant under section 18ZZZR in relation to business premises.

             (2)  Before applying for the warrant, the unit pricing inspector must prepare an information of the kind mentioned in subsection 18ZZZR(2) in relation to the premises that sets out the grounds on which the warrant is sought.

             (3)  If it is necessary to do so, the unit pricing inspector may apply for the warrant before the information is sworn.

             (4)  If the magistrate is satisfied:

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

                     (b)  after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same warrant that the magistrate would issue under section 18ZZZR if the application had been made under that section.

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

                     (a)  the magistrate must:

                              (i)  tell the unit pricing inspector what the terms of the warrant are; and

                             (ii)  tell the unit pricing inspector the day on which and the time at which the warrant was signed; and

                            (iii)  tell the unit pricing inspector the day (not more than one week after the magistrate completes and signs the warrant) on which the warrant ceases to have effect; and

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

                     (b)  the unit pricing inspector must:

                              (i)  complete a form of warrant in the same terms as the warrant completed and signed by the magistrate; and

                             (ii)  write on the form the name of the magistrate and the day on which and the time at which the warrant was signed.

             (6)  The unit pricing inspector must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:

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

                     (b)  the information referred to in subsection (2), which must have been duly sworn.

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

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

                     (b)  deal with them in the way in which the magistrate would have dealt with the information if the application had been made under section 18ZZZR.

             (8)  A form of warrant duly completed under subsection (5) is authority for any entry, search, seizure or other exercise of a power that the warrant signed by the magistrate authorises.

             (9)  If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

                     (b)  the warrant signed by the magistrate authorising the exercise of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

           (10)  A reference in this Division to a warrant under section 18ZZZR includes a reference to a warrant signed by a magistrate under this section.

Division 5Additional functions of Secretary

18ZZZT  Additional functions of Secretary

             (1)  In addition to any other functions under this Act, the Secretary has the following guidance functions in relation to this Part:

                     (a)  to issue minimum standards of procedures that retailers can implement in order to ensure that they comply with this Part;

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

                     (c)  to prepare, and to publish in the way that the Secretary considers appropriate, guidelines for the avoidance of acts or practices of a retailer that may or might contravene this Part;

                     (d)  to prepare, and to publish in the way that the Secretary considers appropriate, guidelines and advices to assist retailers to develop their own procedures to ensure compliance with this Part;

                     (e)  to evaluate compliance with minimum standards issued under paragraph (a);

                      (f)  to do anything incidental or conducive to the performance of any of the preceding functions.

             (2)  The Secretary may do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions under subsection (1).