Response 43614993

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Introduction

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Daniel Turner

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Current regulatory framework

4.1. What should be the role of Australia’s measurement laws in a modern economy?

What should be the role of Australia’s measurement laws in a modern economy?
To ensure that transactions that involve measurements are fair and reflect the actual quantities involved to a level agreed as being deemed fit-for-purpose, which shall depend upon the context of the transaction and its scale. All such measurements shall be underpinned by an assurance that is reflected in the presentation of the values and associated units when being communicated between the parties involved. For example, there are several different transactions related to the amount of alcohol within a bottle of spirits being purchased. Measurements ensure the right amount of tax gets calculated and the labelling is correct. A consumer must never be disadvantaged by the presentation of a measurement, such that they may reasonably evaluate a transaction through comparison with an alternative party supplying the same product/service. Additionally, inherent within any system operating successfully within a globalised economy, there must be consistency in the comparability between measurements made in Australia with those anywhere else in the world.

Measurement laws in other countries

5.1. What should be within the scope of Australia's measurement laws?

What is the appropriate scope of Australia measurement laws?
Theoretically speaking, any measurement that is to be relied upon when making a decision should be considered as within the scope of Australia's measurement laws. Realistically, as drafting a law requires constraints affording the desired level of assurance and confidence without placing unreasonable burdens, the laws would be best limited in scope to categories of measurements where a risk assessment indicates vigilance is warranted. It is my understanding that in a legal sense there are regulations that are in place that establish to what point a measurement must be substantiated as being deemed indisputable, which is underpinned by the frameworks of metrological traceability to internationally recognised standards and independent assessment of competency. The validity of any measurement upon which a legally binding agreement is entered into must be established to be bounded with a confidence appropriate to the associated risk. For example, the following have very different risk assessments: the amount of radiation being delivered to a patient undergoing radiotherapy; how much torque is applied to a bolt on an aeroplane; and the concentration of a solvent in a cleaning product.

5.2. Are there ways in which the current scope of Australia’s measurement laws could be expanded or limited?

Are there ways in which the scope of Australia’s measurement laws should be limited?
Undoubtedly. Has a comprehensive risk assessment been conducted of the current laws?

Principles-based legislation

6.1. Would you be confident of operating in a principles-based regulatory environment for measurement? Why or why not?

Would you be confident of operating in regulatory environment for measurement that is characterised by principles-based legislation? Why?
Just looking at recent events arising from the royal commission into financial institutions, it is rather hard to believe that a principles-based legislation will actually be robust enough to withstand the rigours of the commercially driven nature of measurements. However, provided there is a holistic approach that balances the risk of any deregulation with the benefits arising from a change in approach, the framework Australia adopts in the early 21st Century must be sufficiently forward-looking to be adaptable to reasonably foreseeable innovations. Placing a binding requirement upon achieving an outcome that ensures any measurement is fit for its intended purpose shall require consideration of how free a party might be to interpret the principles that are articulated.

6.2. Would the need for detailed guidance material limit the value and flexibility of a principles-based approach to measurement laws?

Would an implemented principles-based approach acquire such a quantity of additional guidance and specification that the value of the principle-based approach was neutralised?
No, it is my opinion that guidance material enhances the value of a principles-based approach and need only be as detailed as necessary to provide assurance anyone utilising them will be able to apply what has been conveyed. This might benefit from incorporating checks for understanding as part of interactive online content. For example, a visual depiction of any of the following would be very powerful: - 1. How control of the tolerances of several characteristics the threading on a bolt's external surface and a nut's internal surface, which highlights the importance of understanding measurement uncertainties to permits compatibility between parts; 2. Changes to the surface area, orientation, and angle of a solar cell on its energy production; or 3. Varying the composition of a mixture and its volume has on the amount of a component that is present, which can include the comparison between mass/volume, mass/mass, and volume/volume values.

Measurements used for trade

7.1. Are there benefits from directly regulating an area of measurement as opposed to providing broad principles of good measurement practice without direct intervention?

Are there benefits from directly regulating an area of measurement as opposed to providing broad principles of good measurement practice without direct intervention?
Yes, there are distinct benefits to paying greater attention when there has been a risk assessment to suggest closer scrutiny is warranted. The assumption that providing the principles of an activity ensures compliance by all is manifestly unsound, as the road rules have been made available to all and yet nobody would claim it ensures a minimisation of the number of traffic accidents arising. Direct regulation is more costly to enforce and therefore shall be implemented judiciously when a suitably mandated body can ensure compliance with the regulation and has the authority to take appropriate action when any breach is identified. The possibility for an intervention will remain necessary so long as commercial pressures exist to mitigate the loosest possible adherence to principles of good measure practice. Any failure to meet the minimum standard has to be viewed through the prism that the bar was set with the expectation it shall be cleared by all parties.

7.2. What regulatory models should Australia’s measurement laws enable (for instance, principles-based, compliance-focused and/or rules-based), and why?

What regulatory models should Australia’s measurement laws enable (for instance, principles-based, compliance-focused and/or rules-based), and why?
An appropriate risk-based decision tool should allow for a choice of model that is a combination of any or all of the three approaches. The lowest tier should be principled-based and the highest tier would incorporate all necessary precautions to prevent a breach of the law arising inadvertently, as a blatant breach or deliberate circumventing of regulations can only be acted upon when discovered.

Changing nature of trade measurement

7.1.1. What types of measuring instruments should be regulated by Australia’s measurement laws?

What types of measuring instruments should be regulated by Australia’s measurement laws?
Both quantitative and qualitative measurements should be regulated and the extent to which either would be is wholly dependent on the risk associated with the measurement.

7.1.2. How should Australia’s measurement laws apply to transactions for goods and services that are based on measurement?

How should Australia’s measurement laws apply to transactions for goods and services that are based on measurement?
Fair and reasonable requirements shall be ascribed based on the information the measurement plays in a decision-making process. It is reasonable for a consumer to get no less than the stated amount of an item they are purchasing but up to the seller/manufacturer to determine their tolerance as to how much more they will tolerate, as it erodes their margin on each sale. A transaction that has a contribution from measurements stated on the product or services specifications should reasonably fall under Australia's measurement laws.

7.1.3. What regulatory models should be applied to quality and quantity measurements?

What regulatory models should be applied to quality and quantity measurements?
I refer to my previous risk-based proposition, which means that it is not the nature of the measurement (i.e., quality or quantity) rather the information conveyed by the value and units being evaluated. A measurements appropriateness must always be viewed within the context of the consequences arising from reliance on the information it purports to provide, which shall necessarily be presented in a fit-for-purpose manner.

Exemptions

7.2.1. How should Australia’s measurement laws specify the types of measuring instruments they apply to? For instance, by exemption or inclusion requirements?

How should Australia’s measurement laws specify the types of measuring instruments they apply to? For instance, by exemption or inclusion requirements?
On what basis are the exemptions substantiated? If it is risk-based and has been reviewed in the context of developments since the act then continued exemption may be readily justifiable. The inherent question being "Why were certain measuring instruments exempted and whether that decision remains justified today?" Indeed, based on the provided list of exemptions, confirming the rationale for each continued exemption would ensure all parties may understand the principles by which the decision has been made to do so.

7.2.2. What are your views on the current listed exemptions?

How are the current listed exemptions not appropriate?
They need reviewing in the context of the overall risk-based approach I have advocated and, where necessary, a realignment made with the model ascribed to the level of risk for each of the currently exempted measuring instruments.

Non-trade measurements

8.1. What future measurement needs or priorities would benefit from a measurement framework?

What future measurement needs or priorities would benefit from a measurement framework?
I am certain that numerous measurements would benefit from such a framework. The decision as to how many non-trade measurements need to be regulated would benefit from the risk-based evaluation that is conducted in the context of its use. My personal exposure to legal metrology—I previously worked for NATA and was a Lead Assessor in the field of Calibration—suggests an overhaul of the process through which Verifying Authorities are provided approval to issue legal instruments (e.g., Regulation 13 certificates) is probably warranted.

8.2. Should the focus of the Australia’s measurement laws be to regulate measuring instruments or measurement results, or both?

Should the focus of the Australia’s measurement laws be to regulate measuring instruments or measurement results, or both?
Returning to my proposition that the model framework under which a measurement should be considered is determined by the risk assessment of its context, the response to this question can be either or both. A measurement result is contingent on both the measuring instrumentation and the competency of the user or, for semi-automated or automated systems, its installation process. Australia's law must always be mindful of the measurement result and account for instances where the associated risk warrants regulation of the instrumentation. Additionally, there will likely be instances where the competency of individuals conducting certain measurements falls under regulation.

8.3. How should the national measurement framework apply to non-trade measurements and instruments? Should the approach be different for different types and/or categories of measurement?

How should the national measurement framework apply to non-trade measurements and instruments? Should the approach be different for different types and/or categories of measurement?
Yes, hence the strong advocacy for a risk-based assessment of measurements. It is likely too simplistic to expect to be able to refer to a flowchart as to whether a non-trade measurement result or an instrument used to make them should fall under the national framework. However, if a principle-approach is to be utilised, the value of such a tool would be able to capture at least 80% of real-world examples.

8.4. What are the types of non-trade measurements (and measuring instruments) that would benefit from inclusion within the measurement framework?

What are the types of non-trade measurements (and measuring instruments) that would benefit from inclusion within the measurement framework?
Those identified by a risk-based evaluation of measurements conducted within the country.

8.5. Are there instances in which non-trade measurements (and measuring instruments) requires a nationally consistent approach to measurement?

Are there instances in which non-trade measurements (and measuring instruments) requires a nationally consistent approach to measurement?
Undoubtedly! A nationally consistent model shall ensure an evaluation of measurements made in Australia captures those which are non-trade and yet warrant special consideration.