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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Food Bill 2003
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Objects of Act 2
4 Definitions 2
5 Meaning of "food" 6
6 Meaning of "food business" 6
7 Meaning of "primary food production" 7
8 Meaning of "unsafe" food 8
9 Meaning of "unsuitable" food 8
10 Application of Act to primary food production 9
11 Application of Act to water suppliers 9
12 Relationship to other laws 10
Food Bill 2003
Contents
Page
Part 2 Offences relating to food
Division 1 Serious offences relating to food
13 Handling of food in unsafe manner 11
14 Sale of unsafe food 11
15 False description of food 11
Division 2 Other offences relating to food
16 Handling and sale of unsafe food 12
17 Handling and sale of unsuitable food 12
18 Misleading conduct relating to sale of food 13
19 Sale of food not complying with purchaser's demand 13
20 Sale of unfit equipment or packaging or labelling material 13
21 Compliance with Food Standards Code 14
22 False descriptions of food 14
23 Application of provisions outside the State 15
Division 3 Defences
24 Defence relating to publication of advertisements 15
25 Defence in respect of food for export 16
26 Defence of due diligence 16
27 Defence of mistaken and reasonable belief not available 17
28 Defence in respect of handling food 18
29 Defence in respect of sale of unfit equipment or packaging
or labelling material 18
Part 3 Emergency powers
30 Making of order 19
31 Nature of order 19
32 Special provisions relating to recall orders 20
33 Manner of making orders 20
34 Compensation 21
35 Failure to comply with emergency order 22
36 Limitation on stay of operation of emergency orders 22
Part 4 Inspection and seizure powers
Division 1 Inspection
37 Powers of authorised officers 23
38 Power of seizure 24
39 Search warrants 25
40 Failure to comply with requirements of authorised officers 25
41 Interfering with seized items 25
42 False information 26
Contents page 2
Food Bill 2003
Contents
Page
43 Obstructing or impersonating authorised officers 26
Division 2 Items seized by authorised officers
44 Seized items 26
45 Notification of seizure 27
46 Destruction of filthy, decomposed or putrid matter 27
47 Return of seized item 27
48 Forfeiture of item 28
49 Cost of destruction or disposal of forfeited item 28
50 Return of forfeited item 28
51 Compensation to be paid in certain circumstances 29
52 Application for order disallowing seizure 29
53 Enforcement agency entitled to answer application 30
54 Order disallowing seizure of item 30
55 Ancillary orders 30
56 Adjournment pending hearing of other proceedings 31
Part 5 Improvement notices and prohibition orders for
premises or equipment
57 Unclean or unfit premises, vehicles or equipment 32
58 Improvement notice 32
59 Compliance with improvement notice 33
60 Prohibition order 33
61 Scope of notices and orders 34
62 Notices and orders to contain certain information 35
63 Request for re-inspection 35
64 Contravention of prohibition order 35
65 Review of decision to refuse certificate of clearance 36
66 Compensation 36
Part 6 Taking and analysis of samples
Division 1 Taking of samples
67 Proprietor to be informed 37
68 Payment for sample 37
69 Samples from vending machines 37
70 Packaged food 37
71 Procedure to be followed 38
72 Samples to be submitted for analysis 39
Division 2 Procedures relating to analyses
73 Compliance with Food Standards Code 39
74 Certificate of analysis 39
Contents page 3
Food Bill 2003
Contents
Page
Division 3 Approval of laboratories
75 Approval of laboratories 40
76 Term of approval 40
77 Approved laboratory to give notice of certain interests 41
78 Variation of conditions or suspension or cancellation
of approval of laboratory 41
79 Review of decisions relating to approval 42
80 List of approved laboratories to be maintained 42
Division 4 Approval of analysts
81 Approval of persons to carry out analyses 43
82 Term of approval 43
83 Approved analyst to give notice of certain interests 43
84 Variation of conditions or suspension or cancellation
of approval of analyst 43
85 Review of decisions relating to approval 44
86 List of approved analysts to be maintained 45
Part 7 Auditing
Division 1 Approval of food safety auditors
87 Approval of food safety auditors 46
88 Term of approval 46
89 Food safety auditor to give notice of certain interests 47
90 Variation of conditions or suspension or cancellation
of approval of auditor 47
91 Review of decisions relating to approvals 48
Division 2 Auditing and reporting requirements
92 Food safety programs and auditing requirements 49
93 Priority classification system and frequency of auditing 49
94 Duties of food safety auditors 50
95 Reporting requirements 50
96 Redetermination of frequency of auditing 52
97 Certificates of authority of food safety auditors 52
98 List of food safety auditors to be maintained 53
99 Obstructing or impersonating food safety auditors 53
Part 8 Notification and registration of food
businesses and approval of food premises
100 Notification of conduct of food businesses 54
101 Exemption in relation to notification of information 54
102 Registration of food businesses 54
103 Renewal of registration 55
Contents page 4
Food Bill 2003
Contents
Page
104 Term of registration 56
105 Variation of conditions or suspension or cancellation of
registration of food businesses 56
106 Review of decisions relating to registration 57
107 Register of food businesses to be maintained 57
Part 9 Administration
Division 1 Regulatory authority
108 Functions of the regulatory authority in relation to this Act 59
109 Delegation 59
Division 2 Functions of enforcement agencies
110 Functions of enforcement agencies in relation to this Act 59
111 Conditions on exercise of functions by enforcement
agencies 60
112 Exercise of functions by enforcement agencies 60
113 Reports by enforcement agencies 60
Division 3 Appointment of authorised officers
114 Appointment of authorised officers 60
115 Certificates of authority 60
Division 4 Advisory committees
116 Establishment of advisory committees 61
117 Functions of advisory committees 62
Part 10 Procedural and evidentiary provisions
118 Nature of proceedings for offences 63
119 Institution of proceedings 63
120 Penalty notices for certain offences 63
121 Offences by employers 64
122 Offences by corporations 64
123 Liability of employees and agents 65
124 Alternative verdicts for serious food offences 65
125 No defence to allege deterioration of sample 66
126 Onus to prove certain matters on defendant 66
127 Presumptions 66
128 Certificate evidence and evidence of analysts 67
129 Power of court to order further analysis 68
130 Disclosure by witnesses 69
131 Court may order costs and expenses 69
132 Court may order corrective advertising 69
Contents page 5
Food Bill 2003
Contents
Page
133 Information in relation to prosecutions to be forwarded to
Director-General 70
Part 11 Miscellaneous
134 Protection from personal liability 71
135 Exclusion of liability of the State and others 71
136 Disclosure of certain confidential information 72
137 Publication of names of offenders 72
138 Act to bind Crown 73
139 Regulations 73
140 Temporary emergency regulations modifying the Code 74
141 Other regulations modifying the Code 74
142 Repeals 74
143 Amendment of other Acts 75
144 Savings, transitional and other provisions 75
Schedules
1 Amendment of other Acts 76
2 Savings, transitional and other provisions 78
Contents page 6
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2003
New South Wales
Food Bill 2003
Act No , 2003
An Act to regulate the handling of food for sale and the sale of food and to
provide for the application of the Australia New Zealand Food Standards Code
in New South Wales; to repeal the Food Act 1989; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Food Bill 2003
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Food Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Objects of Act
The objects of this Act include the following:
(a) to ensure food for sale is both safe and suitable for human
consumption,
(b) to prevent misleading conduct in connection with the sale of
food,
(c) to provide for the application in this State of the Food
Standards Code.
4 Definitions
(1) In this Act:
Administrative Decisions Tribunal means the Administrative
Decisions Tribunal constituted under the Administrative Decisions
Tribunal Act 1997.
advertisement means:
(a) any words, whether written or spoken, or
(b) any pictorial representation or design, or
(c) any other representation by any means at all,
used or apparently used to promote, directly or indirectly, the sale of
food.
analysis includes any examination or testing of food or any other
thing.
animal includes an amphibian, bird, crustacean, fish, mollusc or
reptile.
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Food Bill 2003 Clause 4
Preliminary Part 1
appropriate enforcement agency means, in relation to the provision
in which the expression is used, the enforcement agency prescribed
by the regulations for the purposes of that provision.
approved analyst means a person approved under Division 4 of Part
6.
approved form means the form approved from time to time by the
regulatory authority.
approved laboratory means a laboratory approved under Division 3
of Part 6.
authorised justice has the same meaning as in the Search Warrants
Act 1985.
authorised officer means a person appointed under Division 3 of
Part 9.
Commonwealth Food Authority has the same meaning as
Authority in the Food Standards Australia New Zealand Act 1991
of the Commonwealth.
enforcement agency means:
(a) the regulatory authority, or
(b) any person or body, or a person or body within a class of
persons or bodies, prescribed by the regulations for the
purposes of this definition.
equipment means the whole or part of:
(a) any utensil, machinery, instrument, device, apparatus or
appliance that is used, or that is designed or intended for use,
in or in connection with the handling of food, or
(b) any substance, utensil, machinery, instrument, device,
apparatus or appliance that is used, or that is designed or
intended for use, in cleaning anything referred to in paragraph
(a).
examine includes weigh, count, test or measure.
food has the meaning given by section 5.
food business has the meaning given by section 6.
food safety auditor means a person approved under Division 1 of
Part 7.
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Clause 4 Food Bill 2003
Part 1 Preliminary
Food Safety Standards means the standards contained in Chapter 3
of the Food Standards Code.
Food Standards Code means the Australia New Zealand Food
Standards Code as defined in the Food Standards Australia New
Zealand Act 1991 of the Commonwealth, as modified in accordance
with regulations referred to in section 140 or 141.
food transport vehicle means a vehicle used for the transport of
food for sale.
handling of food includes the making, manufacturing, producing,
collecting, extracting, processing, storing, transporting, delivering,
preparing, treating, preserving, packing, cooking, thawing, serving
or displaying of food.
improvement notice means an improvement notice issued under
Part 5.
label includes any tag, brand, mark or statement in writing or any
representation or design or other descriptive matter on or attached to
or used or displayed in connection with or accompanying any food
or package.
package includes any container or wrapper in or by which food
intended for sale is wholly or partly encased, covered, enclosed,
contained or packed and, in the case of food carried or sold or
intended to be carried or sold in more than one package, includes
every such package.
premises includes:
(a) land (whether or not vacant), or
(b) the whole or any part of a building, tent, stall or other structure
(whether of a permanent or temporary nature), or
(c) a pontoon, or
(d) a vehicle (other than a food transport vehicle while it is
engaged in the transport of food).
primary food production has the meaning given by section 7.
prohibition order means a prohibition order made under Part 5.
proprietor of a food business means:
(a) the person carrying on the food business, or
(b) if that person cannot be identified the person in charge of the
food business.
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Food Bill 2003 Clause 4
Preliminary Part 1
recall order means an order under Part 3 requiring the recall or
disposal, or both, of any food.
regulatory authority means the Director-General of the Department
of Health.
sell includes:
(a) barter, offer or attempt to sell, or
(b) receive for sale, or
(c) have in possession for sale, or
(d) display for sale, or
(e) cause or permit to be sold or offered for sale, or
(f) send, forward or deliver for sale, or
(g) dispose of by any method for valuable consideration, or
(h) dispose of to an agent for sale on consignment, or
(i) provide under a contract of service, or
(j) supply food as a meal or part of a meal to an employee, in
accordance with a term of an award governing the
employment of the employee or a term of the employee's
contract of service, for consumption by the employee at the
employee's place of work, or
(k) dispose of by way of raffle, lottery or other game of chance, or
(l) offer as a prize or reward, or
(m) give away for the purpose of advertisement or in furtherance
of trade or business, or
(n) supply food under a contract (whether or not the contract is
made with the consumer of the food), together with
accommodation, service or entertainment, in consideration of
an inclusive charge for the food supplied and the
accommodation, service or entertainment, or
(o) supply food (whether or not for consideration) in the course
of providing services to patients in public hospitals (within
the meaning of the Health Services Act 1997) or inmates in
correctional centres (within the meaning of the Crimes
(Administration of Sentences) Act 1999), or
(p) sell for the purpose of resale.
unsafe has the meaning given by section 8.
unsuitable has the meaning given by section 9.
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Clause 5 Food Bill 2003
Part 1 Preliminary
vehicle means any means of transport, whether self-propelled or
not, and whether used on land or sea or in the air.
(2) For the purposes of this Act, food or equipment that is displayed for
the purpose of being offered as a prize or reward or given away for
the purpose of advertisement or in the furtherance of trade or
business is taken to have been displayed for sale by the owner of the
food or equipment.
(3) Notes included in this Act do not form part of this Act.
5 Meaning of "food"
(1) In this Act, food includes:
(a) any substance or thing of a kind used, or represented as being
for use, for human consumption (whether it is live, raw,
prepared or partly prepared), or
(b) any substance or thing of a kind used, or represented as being
for use, as an ingredient or additive in a substance or thing
referred to in paragraph (a), or
(c) any substance used in preparing a substance or thing referred
to in paragraph (a) (other than a substance used in preparing a
living thing) if it comes into direct contact with the substance
or thing referred to in that paragraph, such as a processing aid,
or
(d) chewing gum or an ingredient or additive in chewing gum, or
any substance used in preparing chewing gum, or
(e) any substance or thing declared to be a food under a
declaration in force under section 3B of the Food Standards
Australia New Zealand Act 1991 of the Commonwealth,
whether or not the substance, thing or chewing gum is in a condition
fit for human consumption.
(2) However, food does not include a therapeutic good within the
meaning of the Therapeutic Goods Act 1989 of the Commonwealth.
(3) To avoid doubt, food may include live animals and plants.
6 Meaning of "food business"
In this Act, food business means a business, enterprise or activity
(other than a business, enterprise or activity that is primary food
production) that involves:
(a) the handling of food intended for sale, or
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Food Bill 2003 Clause 7
Preliminary Part 1
(b) the sale of food,
regardless of whether the business, enterprise or activity concerned
is of a commercial, charitable or community nature or whether it
involves the handling or sale of food on one occasion only.
7 Meaning of "primary food production"
(1) In this Act, primary food production means the growing, raising,
cultivation, picking, harvesting, collection or catching of food, and
includes the following:
(a) the transportation or delivery of food on, from or between the
premises on which it was grown, raised, cultivated, picked,
harvested, collected or caught,
(b) the packing, treating (for example, washing) or storing of
food on the premises on which it was grown, raised,
cultivated, picked, harvested, collected or caught,
(c) the storage of food in a silo that is not connected with a food
processing operation and the transportation or delivery of
food from, between or to such silos,
(d) the sale of livestock at saleyards and the transportation of
livestock to and from saleyards,
(e) any other food production activity that is regulated by or
under an Act prescribed by the regulations for the purposes of
this subsection.
(2) However, primary food production does not include:
(a) any process involving the substantial transformation of food
(for example, manufacturing or canning), regardless of
whether the process is carried out on the premises on which
the food was grown, cultivated, picked, harvested, collected
or caught, or
(b) the sale or service of food directly to the public, or
(c) any other food production activity that is prescribed by the
regulations for the purposes of this subsection.
Note. Section 7 (2) (c) enables regulations to be made prescribing food
production activities that are not included in the definition of primary food
production. Such a regulation might be made, for example, to prescribe a food
production activity in relation to which significant and unmanaged food safety
hazards have been identified.
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Clause 8 Food Bill 2003
Part 1 Preliminary
8 Meaning of "unsafe" food
(1) For the purposes of this Act, food is unsafe at a particular time if it
would be likely to cause physical harm to a person who might later
consume it, assuming:
(a) it was, after that particular time and before being consumed
by the person, properly subjected to all processes (if any) that
are relevant to its reasonable intended use, and
(b) nothing happened to it after that particular time and before
being consumed by the person that would prevent its being
used for its reasonable intended use, and
(c) it was consumed by the person according to its reasonable
intended use.
(2) However, food is not unsafe for the purposes of this Act merely
because its inherent nutritional or chemical properties cause, or its
inherent nature causes, adverse reactions only in persons with
allergies or sensitivities that are not common to the majority of
persons.
(3) In subsection (1), processes include processes involving storage and
preparation.
9 Meaning of "unsuitable" food
(1) For the purposes of this Act, food is unsuitable if it is food that:
(a) is damaged, deteriorated or perished to an extent that affects
its reasonable intended use, or
(b) contains any damaged, deteriorated or perished substance that
affects its reasonable intended use, or
(c) is the product of a diseased animal, or an animal that has died
otherwise than by slaughter, and has not been declared by or
under another Act to be safe for human consumption, or
(d) contains a biological or chemical agent, or other matter or
substance, that is foreign to the nature of the food.
(2) However, food is not unsuitable for the purposes of this Act merely
because:
(a) at any particular time before it is sold for human consumption
it contains an agricultural or veterinary chemical, or
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Food Bill 2003 Clause 10
Preliminary Part 1
(b) when it is sold for human consumption it contains an
agricultural or veterinary chemical, so long as it does not
contain the chemical in an amount that contravenes the Food
Standards Code, or
(c) it contains a metal or non-metal contaminant (within the
meaning of the Food Standards Code) in an amount that does
not contravene the permitted level for the contaminant as
specified in the Food Standards Code, or
(d) it contains any matter or substance that is permitted by the
Food Standards Code.
(3) In this section, slaughter of an animal includes the killing of an
animal in the process of capturing, taking or harvesting it for the
purposes of preparing it for use as food.
10 Application of Act to primary food production
(1) Parts 5, 7 and 8 do not apply to or in respect of primary food
production.
(2) The functions conferred on authorised officers by Parts 4 and 6 may
only be exercised in respect of primary food production:
(a) to enable the investigation and prosecution of offences against
this Act or the regulations, or
(b) in connection with the making or enforcement of emergency
orders under Part 3.
Note. The definition of food business excludes primary food production.
11 Application of Act to water suppliers
(1) The following provisions of this Act do not apply to a water supplier
in respect of the supply of water for human consumption through a
reticulated water system:
(a) sections 13, 15, 16 (1), 17 (1), 18, 19, 20 and 21 (but only to
the extent to which section 21 requires compliance with the
requirements of the Food Safety Standards),
(b) Parts 5, 7 and 8.
(2) In this section, water supplier means:
(a) a body that is constituted by or under an Act and that has as or
as one of its functions the supply of water for human
consumption, or
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Clause 12 Food Bill 2003
Part 1 Preliminary
(b) a person who is employed or engaged by such a body to
supply water for human consumption, or
(c) any body or person prescribed by the regulations for the
purposes of this section.
12 Relationship to other laws
(1) If, by or under any other Act (whether passed before or after the
commencement of this section) any provision is made in relation to
food for sale, being a provision that is inconsistent with the
provisions of this Act or the regulations under this Act, the
provisions of this Act or the regulations prevail to the extent of the
inconsistency.
(2) Any statutory rule relating to any of the following matters must be
submitted to the Minister before being made:
(a) the wholesomeness, cleanliness or freedom from
contamination of food,
(b) the composition of, and standards for, food,
(c) the cleanliness of vehicles, premises or places in which food
is sold or handled for sale.
(3) No such statutory rule may be made unless the Minister approves of
such of its provisions as relate to any of those matters.
(4) Failure to comply with any provision of this section does not affect
the validity of a statutory rule.
(5) In this section, statutory rule means a regulation, by-law, rule or
ordinance made, or required by law to be approved or confirmed, by
the Governor or made by a council.
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Food Bill 2003 Clause 13
Offences relating to food Part 2
Part 2 Offences relating to food
Division 1 Serious offences relating to food
13 Handling of food in unsafe manner
(1) A person must not handle food intended for sale in a manner that the
person knows will render, or is likely to render, the food unsafe.
Maximum penalty: 1,000 penalty units or imprisonment for 2 years,
or both, in the case of an individual and 5,000 penalty units in the
case of a corporation.
(2) A person must not handle food intended for sale in a manner that the
person ought reasonably to know is likely to render the food unsafe.
Maximum penalty: 750 penalty units in the case of an individual and
3,750 penalty units in the case of a corporation.
14 Sale of unsafe food
(1) A person must not sell food that the person knows is unsafe.
Maximum penalty: 1,000 penalty units or imprisonment for 2 years,
or both, in the case of an individual and 5,000 penalty units in the
case of a corporation.
(2) A person must not sell food that the person ought reasonably to
know is unsafe.
Maximum penalty: 750 penalty units in the case of an individual and
3,750 penalty units in the case of a corporation.
15 False description of food
(1) A person must not cause food intended for sale to be falsely
described if the person knows that a consumer of the food who relies
on the description will, or is likely to, suffer physical harm.
Maximum penalty: 1,000 penalty units or imprisonment for 2 years,
or both, in the case of an individual and 5,000 penalty units in the
case of a corporation.
Note. Examples of food that is falsely described are contained in section 22.
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Clause 16 Food Bill 2003
Part 2 Offences relating to food
(2) A person must not cause food intended for sale to be falsely
described if the person ought reasonably to know that a consumer of
the food who relies on the description is likely to suffer physical
harm.
Maximum penalty: 750 penalty units in the case of an individual and
3,750 penalty units in the case of a corporation.
Note. Examples of food that is falsely described are contained in section 22.
(3) A person must not sell food that the person knows is falsely
described and will, or is likely to, cause physical harm to a consumer
of the food who relies on the description.
Maximum penalty: 1,000 penalty units or imprisonment for 2 years,
or both, in the case of an individual and 5,000 penalty units in the
case of a corporation.
Note. Examples of food that is falsely described are contained in section 22.
(4) A person must not sell food that the person ought reasonably to
know is falsely described and is likely to cause physical harm to a
consumer of the food who relies on the description.
Maximum penalty: 750 penalty units in the case of an individual and
3,750 penalty units in the case of a corporation.
Note. Examples of food that is falsely described are contained in section 22.
Division 2 Other offences relating to food
16 Handling and sale of unsafe food
(1) A person must not handle food intended for sale in a manner that
will render, or is likely to render, the food unsafe.
(2) A person must not sell food that is unsafe.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
17 Handling and sale of unsuitable food
(1) A person must not handle food intended for sale in a manner that
will render, or is likely to render, the food unsuitable.
(2) A person must not sell food that is unsuitable.
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Food Bill 2003 Clause 18
Offences relating to food Part 2
(3) For the purposes of this section, it is immaterial whether the food
concerned is safe.
Maximum penalty: 400 penalty units in the case of an individual and
2,000 penalty units in the case of a corporation.
18 Misleading conduct relating to sale of food
(1) A person must not, in the course of carrying on a food business,
engage in conduct that is misleading or deceptive or is likely to
mislead or deceive in relation to the advertising, packaging or
labelling of food intended for sale or the sale of food.
(2) A person must not, for the purpose of effecting or promoting the sale
of any food in the course of carrying on a food business, cause the
food to be advertised, packaged or labelled in a way that falsely
describes the food.
Note. Examples of food that is falsely described are contained in section 22.
(3) A person must not, in the course of carrying on a food business, sell
food that is packaged or labelled in a way that falsely describes the
food.
Note. Examples of food that is falsely described are contained in section 22.
(4) Nothing in subsection (2) or (3) limits the generality of subsection
(1).
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
19 Sale of food not complying with purchaser's demand
(1) A person must not, in the course of carrying on a food business,
supply food by way of sale if the food is not of the nature or
substance demanded by the purchaser.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
(2) For the purposes of this section, it is immaterial whether the food
concerned is safe.
20 Sale of unfit equipment or packaging or labelling material
(1) A person must not sell equipment that if used for the purposes for
which it was designed or intended to be used:
(a) would render or be likely to render food unsafe, or
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Clause 21 Food Bill 2003
Part 2 Offences relating to food
(b) would put other equipment, or would be likely to put other
equipment, in such a condition that, if the other equipment
were used for the purposes for which it was designed or
intended to be used, it would render, or be likely to render,
food unsafe.
(2) A person must not sell packaging or labelling material that if used
for the purposes for which it was designed or intended to be used
would render or be likely to render food unsafe.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
21 Compliance with Food Standards Code
(1) A person must comply with any requirement imposed on the person
by a provision of the Food Standards Code in relation to the conduct
of a food business or to food intended for sale or food for sale.
(2) A person must not sell any food that does not comply with a
requirement of the Food Standards Code that relates to the food.
(3) A person must not sell or advertise for sale any food that is packaged
or labelled in a manner that contravenes a provision of the Food
Standards Code.
(4) A person must not sell or advertise for sale any food in a manner that
contravenes a provision of the Food Standards Code.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
22 False descriptions of food
(1) For the purposes of this Part, food that is falsely described includes
food to which any one or more of the following paragraphs applies:
(a) the food is represented as being of a particular nature or
substance for which there is a prescribed standard under the
Food Standards Code and the food does not comply with that
prescribed standard,
(b) the food is represented as being of a particular nature or
substance and it contains, or is mixed or diluted with, any
substance in a quantity or proportion that significantly
diminishes its food value or nutritive properties as compared
with food of the represented nature or substance,
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Food Bill 2003 Clause 23
Offences relating to food Part 2
(c) the food is represented as being of a particular nature or
substance and it contains, or is mixed or diluted with, any
substance of lower commercial value than food of the
represented nature or substance,
(d) the food is represented as being of a particular nature or
substance and a constituent of the food has been wholly or
partly removed so that its properties are diminished as
compared with food of the represented nature or substance,
(e) any word, statement, device or design used in the packaging
or labelling of the food, or in an advertisement for the food,
would create a false impression as to the nature or substance
of the food, or the commercial value of the food, in the mind
of a reasonable person,
(f) the food is not of the nature or substance represented by the
manner in which it is packaged, labelled or offered for sale.
(2) Without limiting the application of subsection (1) of this section to
section 18 (2), food is falsely described for the purposes of section
18 (2) if it is supplied in response to a purchaser's request for a
particular type of food, or a food that does not contain a particular
ingredient, and the food is not of that type or contains that
ingredient.
23 Application of provisions outside the State
For the purposes of a provision of this Part, it does not matter that
the food concerned was sold or intended for sale outside this State.
Note. See section 25 for a defence in relation to food intended for export.
Division 3 Defences
24 Defence relating to publication of advertisements
(1) In any proceedings for an offence under this Part in relation to the
publication of an advertisement, it is a defence for a person to prove
that the person carried on the business of publishing or arranging for
the publication of advertisements and that the person published or
arranged for the publication of the advertisement in question in the
ordinary course of that business.
(2) Subsection (1) does not apply if the person:
(a) should reasonably have known that the publication of the
advertisement was an offence, or
Page 15
Clause 25 Food Bill 2003
Part 2 Offences relating to food
(b) had previously been informed in writing by the relevant
authority that publication of such an advertisement would
constitute an offence, or
(c) is the proprietor of a food business or is otherwise engaged in
the conduct of a food business for which the advertisements
concerned were published.
25 Defence in respect of food for export
(1) In any proceedings for an offence under this Part involving a
contravention of or failure to comply with a provision of the Food
Standards Code in relation to food, it is a defence for a person to
prove that:
(a) the food in question is to be exported to another country, and
(b) the food complies with the laws in force at the time of the
alleged offence in the place to which the food is to be
exported, being laws that deal with the same subject-matter as
the provision of the Food Standards Code concerned.
(2) This section does not apply to food that was originally intended for
export but was sold in this State.
26 Defence of due diligence
(1) In any proceedings for an offence under this Part, it is a defence if it
is proved that the person took all reasonable precautions and
exercised all due diligence to prevent the commission of the offence
by the person or by another person under the person's control.
(2) Without limiting the ways in which a person may satisfy the
requirements of subsection (1), a person satisfies those requirements
if it is proved:
(a) that the commission of the offence was due to:
(i) an act or default of another person, or
(ii) reliance on information supplied by another person, and
(b) that:
(i) the person carried out all such checks of the food
concerned as were reasonable in all the circumstances,
or
(ii) it was reasonable in all the circumstances to rely on
checks carried out by the person who supplied the food
concerned to the person, and
Page 16
Food Bill 2003 Clause 27
Offences relating to food Part 2
(c) that the person did not import the food into this State from
another country, and
(d) in the case of an offence involving the sale of food, that:
(i) the person sold the food in the same condition as when
the person purchased it, or
(ii) the person sold the food in a different condition to that
in which the person purchased it, but that the difference
did not result in any contravention of this Act or the
regulations.
(3) In subsection (2) (a), another person does not include a person who
was:
(a) an employee or agent of the defendant, or
(b) in the case of a defendant that is a body corporate, a director,
employee or agent of the defendant.
(4) Without limiting the ways in which a person may satisfy the
requirements of subsection (1) or (2) (b) (i), a person may satisfy
those requirements by proving that:
(a) in the case of an offence relating to a food business for which
a food safety program is required to be prepared in accordance
with the regulations, the person complied with a food safety
program for the food business that complies with the
requirements of the regulations, or
(b) in any other case, the person complied with a scheme (for
example, a quality assurance program or an industry code of
practice) that was:
(i) designed to manage food safety hazards and based on
Australian national or international standards, codes or
guidelines designed for that purpose, and
(ii) documented in some manner.
27 Defence of mistaken and reasonable belief not available
In any proceedings for an offence under Division 2, it is no defence
that the defendant had a mistaken but reasonable belief as to the
facts that constituted the offence.
Page 17
Clause 28 Food Bill 2003
Part 2 Offences relating to food
28 Defence in respect of handling food
In any proceedings for an offence under section 13, 16 (1) or 17 (1),
it is a defence if it is proved that the person caused the food to which
the offence relates to be destroyed or otherwise disposed of
immediately after the food was handled in the manner that was
likely to render it unsafe or unsuitable.
29 Defence in respect of sale of unfit equipment or packaging or
labelling material
In any proceedings for an offence under section 20 (1) or (2), it is a
defence if the person proves that the person reasonably believed that
the equipment or material concerned was not intended for use in
connection with the handling of food.
Page 18
Food Bill 2003 Clause 30
Emergency powers Part 3
Part 3 Emergency powers
30 Making of order
An order may be made under this Part by the regulatory authority if
the regulatory authority has reasonable grounds to believe that the
making of the order is necessary to prevent or reduce the possibility
of a serious danger to public health or to mitigate the adverse
consequences of a serious danger to public health.
31 Nature of order
An order under this Part may do any one or more of the following:
(a) require the publication of warnings, in a form approved by the
regulatory authority, that a particular food or type of food is
unsafe,
(b) prohibit the cultivation, taking, harvesting or obtaining, from
a specified area, of a particular food or type of food,
(c) prohibit a particular food or type of food from being
advertised or sold,
(d) direct that a particular food or type of food consigned or
distributed for sale or sold be recalled and specify the manner
in which, and the period within which, the recall is to be
conducted,
(e) direct that a particular food or type of food be impounded,
isolated, destroyed or otherwise disposed of and specify the
manner in which the impounding, isolation, destruction or
disposal is to be conducted,
(f) prohibit absolutely the carrying on of an activity in relation to
a particular food or type of food, or permit the carrying on of
the activity in accordance with conditions specified in the
order,
(g) without limiting the generality of paragraph (f), impose
conditions relating to the taking and analysis of samples of the
food or of water or soil or any other thing that is part of the
environment in which that activity is carried on in relation to
the food,
(h) specify methods of analysis (not inconsistent with any
methods prescribed by the Food Standards Code) of any
samples required to be taken in accordance with the order.
Page 19
Clause 32 Food Bill 2003
Part 3 Emergency powers
32 Special provisions relating to recall orders
(1) A recall order may require the person, or the persons of a class, that
is bound by the order to disclose to the public or to a class of persons
specified in the order, in a manner so specified, any one or more of
the following:
(a) the particular food or type of food to be recalled or disposed
of,
(b) the reasons why the food is considered to be unsafe,
(c) the circumstances in which the consumption of the food is
unsafe,
(d) procedures for disposing of the food.
(2) A person who is required by a recall order to conduct a recall of any
food must give written notice to the regulatory authority of the
completion of the recall as soon as practicable after that completion.
(3) A person who is bound by a recall order is liable for any cost
incurred by or on behalf of the regulatory authority in connection
with the recall order and any such cost is taken to be a debt due to
the regulatory authority from that person.
(4) In any proceedings for the recovery of the debt, a certificate signed
by the regulatory authority stating the amount of any costs and the
manner in which they were incurred is evidence of the matters
certified.
33 Manner of making orders
(1) An order under this Part:
(a) may be made in writing addressed to the person or persons
intended to be bound by it, and served on that person or each
of those persons, as the case requires, or
(b) may be addressed to several persons, to a class of persons, or
to all persons.
(2) Notice of an order addressed as referred to in subsection (1) (b)
setting out the terms of the order and the persons to be bound by the
order must, as soon as practicable after the order is made, be
published in a newspaper that, in the opinion of the regulatory
authority, will be most likely to bring the order to the attention of the
persons bound by it.
(3) An order under this Part, when it takes effect, is binding on the
person or persons to whom it is addressed.
Page 20
Food Bill 2003 Clause 34
Emergency powers Part 3
(4) An order that is served on a person takes effect when it is served.
(5) An order, notice of which is published under subsection (2), takes
effect at the beginning of the first day on which the notice was
published.
(6) An order ceases to have effect at the expiration of 90 days after the
day on which it takes effect unless it is sooner revoked.
(7) Subsection (6) does not prevent a further order being made in the
same terms as an order that has expired.
(8) An order under this Part may be varied or revoked by the regulatory
authority in the same manner as the order was made.
34 Compensation
(1) A person bound by an order under this Part who suffers loss as a
result of the making of the order may apply to the regulatory
authority for compensation if the person considers that there were
insufficient grounds for the making of the order.
(2) If there were insufficient grounds for the making of the order, the
regulatory authority is to pay such compensation to the applicant as
is just and reasonable.
(3) The regulatory authority is to send written notification of its
determination as to the payment of compensation under this section
to each applicant for the payment of such compensation.
(4) If the regulatory authority has not determined an application for
compensation under this section within 28 days of receiving the
application, the regulatory authority is taken to have refused to pay
any compensation.
(5) An applicant for the payment of compensation under this section
who is dissatisfied with a determination by the regulatory authority
as to the refusal to pay compensation or as to the amount of
compensation may apply to the Administrative Decisions Tribunal
for a review of the determination:
(a) within 28 days after the day on which notification of the
determination was received, or
(b) in a case to which subsection (4) applies, within 28 days after
the expiration of the 28-day period referred to in that
subsection.
Page 21
Clause 35 Food Bill 2003
Part 3 Emergency powers
35 Failure to comply with emergency order
A person must not, without reasonable excuse:
(a) carry on an activity in contravention of any prohibition
imposed on the person by an order under this Part, or
(b) neglect or refuse to comply with a direction given by such an
order, or
(c) fail to comply with a condition specified in such an order.
Maximum penalty: 500 penalty units in the case of an individual or
2,500 penalty units in the case of a corporation.
36 Limitation on stay of operation of emergency orders
In any proceedings for judicial review or in any other proceedings,
a court or tribunal is not authorised to make an interlocutory order
that has the effect of staying the operation of an order under this
Part.
Page 22
Food Bill 2003 Clause 37
Inspection and seizure powers Part 4
Part 4 Inspection and seizure powers
Division 1 Inspection
37 Powers of authorised officers
(1) For the purposes of this Act, an authorised officer may, at any
reasonable time, do any one or more of the following:
(a) alone, or with such police officers or other persons as the
authorised officer considers necessary, enter and inspect any
premises that the authorised officer reasonably believes are
used in connection with the handling of any food intended for
sale or the sale of food, or any food transport vehicle,
(b) alone, or with such police officers or other persons as the
authorised officer considers necessary, enter and inspect any
premises or food transport vehicle, in which the authorised
officer reasonably believes that there are any records or
documents that relate to the handling of any food intended for
sale or the sale of food,
(c) examine any food intended for sale,
(d) open and examine any package that the authorised officer
reasonably believes contains any food intended for sale or any
equipment,
(e) open and examine any equipment,
(f) examine any labelling or advertising material that appears to
the authorised officer to be intended for use in connection
with any food intended for sale or any equipment,
(g) subject to Division 1 of Part 6, for the purpose of analysing
any food sold or intended for sale or for carrying out any other
examination in order to determine whether the provisions of
this Act or the regulations are being complied with, demand,
select and obtain samples of any food,
(h) for the purpose of analysis, take samples of water or soil or
any other thing that is part of the environment in which any
food is handled to determine whether that environment poses
a risk to the safety of the food for human consumption,
(i) take samples of any thing, other than for the purpose of
analysis, that the authorised officer reasonably believes may
be used as evidence that an offence has been, or is being,
committed under this Act or the regulations,
Page 23
Clause 38 Food Bill 2003
Part 4 Inspection and seizure powers
(j) examine any records or documents referred to in paragraph
(b), make copies of those records or documents or any part of
them and, for that purpose, take away and retain (for such
time as may be reasonably necessary) any such records or
documents or any part of them,
(k) stop and detain any vehicle that the authorised officer is
authorised by this subsection to enter,
(l) open, or require to be opened, any container used for the
conveyance of goods, or any package, that the authorised
officer reasonably believes to contain any food sold or
intended for sale, or any equipment,
(m) take such photographs, films or audio or visual recordings as
the authorised officer considers necessary,
(n) take any measurements and make sketches or drawings or any
other type of record,
(o) require a person to provide information or answer questions in
connection with the authorised officer's functions under this
Act or to produce any record, document or thing that an
authorised officer is authorised to examine under this Act,
(p) require a person to state the person's name and residential
address,
(q) generally make such investigations and inquiries as may be
necessary to ascertain whether an offence under this Act or
the regulations has been or is being committed.
(2) This section does not authorise entry into any part of premises that
is being used solely for residential purposes, except:
(a) with the consent of the occupier of the premises, or
(b) under the authority of a search warrant, or
(c) if that part of the premises is being used for the preparation or
service of meals provided with paid accommodation.
38 Power of seizure
An authorised officer may seize any food, or any vehicle,
equipment, package or labelling or advertising material, or any
other thing at all, that the authorised officer believes on reasonable
grounds:
(a) is evidence that an offence under this Act or the regulations
has been or is being committed, or
Page 24
Food Bill 2003 Clause 39
Inspection and seizure powers Part 4
(b) does not comply with a provision of this Act or the
regulations, or, in the case of food, is labelled or packaged in
a way that does not comply with a provision of this Act or the
regulations.
39 Search warrants
(1) An authorised officer may apply to an authorised justice for a search
warrant if the authorised officer has reasonable grounds for
believing that a provision of this Act or the regulations has been or
is being contravened on premises.
(2) An authorised justice to whom an application is made under this
section may, if satisfied that there are reasonable grounds for doing
so, issue a search warrant authorising the authorised officer named
in the warrant, when accompanied by a police officer, and such
other person (if any) as is named in the warrant:
(a) to enter the premises concerned, and
(b) to search the premises for evidence of a contravention of this
Act or the regulations.
(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant
issued under this section.
40 Failure to comply with requirements of authorised officers
(1) A person must not, without reasonable excuse, fail to comply with
a requirement of an authorised officer duly made under this
Division.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
(2) Such a requirement is not duly made unless, at the time of the
making of the requirement, the person of whom the requirement is
made is informed by the authorised officer that a refusal or failure
to comply with the requirement may constitute an offence.
41 Interfering with seized items
A person must not, without the permission of an authorised officer,
detain, remove or tamper with any food, vehicle, equipment,
package or labelling or advertising material or other thing that has
Page 25
Clause 42 Food Bill 2003
Part 4 Inspection and seizure powers
been seized under this Act, unless it has been returned in accordance
with Division 2 or an order disallowing the seizure has been made
under that Division.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
42 False information
A person must not, in connection with a requirement or direction
under this Act, provide any information or produce any document
that the person knows is false or misleading in a material particular.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
43 Obstructing or impersonating authorised officers
(1) A person must not, without reasonable excuse, resist, obstruct, or
attempt to obstruct, an authorised officer in the exercise of the
authorised officer's functions under this Act.
(2) A person must not impersonate an authorised officer.
(3) A person must not threaten, intimidate or assault an authorised
officer in the exercise of the authorised officer's functions under this
Act.
Maximum penalty: 500 penalty units.
Division 2 Items seized by authorised officers
44 Seized items
(1) Any item seized under this Part may, at the option of the authorised
officer who seized the item or of any authorised officer acting in his
or her place, be detained in the premises where it was found or be
removed to another place and detained there.
(2) If the item is to be detained in the premises where it was found, the
authorised officer:
(a) may place it in a room, compartment or cabinet in those
premises, and
(b) may mark, fasten and seal the door or opening providing
access to that room, compartment or cabinet, and
(c) must ensure that it is marked in such a way as to indicate that
it has been seized under this Act.
Page 26
Food Bill 2003 Clause 45
Inspection and seizure powers Part 4
45 Notification of seizure
An authorised officer who seizes any item under this Part must, as
soon as practicable after the seizure, give the person from whom the
item was seized written notification of the seizure that includes the
following:
(a) a description of the items seized,
(b) the reason for the seizure,
(c) an explanation of the person's right to make an application to
the court under section 52 for an order disallowing the
seizure,
(d) the address of the place where the item is held if the item has
been removed from the premises where it was seized,
(e) the name of the enforcement agency to whom the authorised
officer reports.
46 Destruction of filthy, decomposed or putrid matter
If an authorised officer who has seized food under this Part is
satisfied that the food consists wholly or partly of filthy,
decomposed or putrid matter or that it poses an immediate risk to
health or property, the authorised officer (disregarding any
provision to the contrary in this Part) may cause the food to be
destroyed.
47 Return of seized item
If, before any item seized under this Part is forfeited to the Crown
under this Division, the enforcement agency concerned becomes
satisfied that there has been no contravention of this Act or the
regulations of which the item is evidence, the enforcement agency
must, as soon as practicable, cause the item to be delivered to:
(a) the person from whom it was seized, or
(b) such other person as appears to the enforcement agency to be
entitled to it.
Page 27
Clause 48 Food Bill 2003
Part 4 Inspection and seizure powers
48 Forfeiture of item
(1) An item seized under this Part is forfeited to the Crown:
(a) on the expiration of the period allowed by section 52 for the
making of an application for an order disallowing the seizure
if the item has not been dealt with under section 47 and no
application under section 52 has been made within that
period, or
(b) if an application for an order disallowing the seizure has been
made under section 52 but the application has been refused or
has been withdrawn before a decision on the application has
been made, on the date on which the application is refused or
withdrawn.
(2) An item forfeited to the Crown under this section may be destroyed,
sold or otherwise disposed of as the enforcement agency concerned
may, generally or in a particular case, direct.
49 Cost of destruction or disposal of forfeited item
(1) A person who was the owner of an item immediately before its
forfeiture under this Division is liable for any cost incurred by or on
behalf of the enforcement agency concerned in connection with the
lawful destruction or disposal of the item (including any storage
costs) and any such cost is taken to be a debt due to the enforcement
agency from that person.
(2) In any proceedings for the recovery of the debt, a certificate signed
by the enforcement agency stating the amount of any costs and the
manner in which they were incurred is evidence of the matters
certified.
50 Return of forfeited item
(1) An item seized under this Part that is forfeited under this Division
and that has not been destroyed or otherwise disposed of in a manner
that would prevent its return must, as soon as practicable, be
delivered to the person from whom it was seized, or such other
person as appears to the enforcement agency concerned to be
entitled to it, if the enforcement agency becomes satisfied that no
contravention of this Act or the regulations has been committed in
relation to the item.
(2) On being so delivered, any proprietary and other interests in the item
that existed immediately before its forfeiture are restored.
Page 28
Food Bill 2003 Clause 51
Inspection and seizure powers Part 4
51 Compensation to be paid in certain circumstances
(1) A person may apply for compensation for an item seized under this
Part to the enforcement agency that appointed the authorised officer
who seized the item, but only if the period allowed by section 52 for
the making of an application for an order disallowing the seizure has
expired and no application has been made.
(2) An enforcement agency is, on an application made in accordance
with this section, to pay such compensation as is just and reasonable
in relation to any item seized under this Part by an authorised officer
appointed by it if:
(a) no contravention of this Act or the regulations has been
committed in relation to the item, and
(b) the item cannot be returned or has in consequence of the
seizure depreciated in value.
(3) An enforcement agency required to make a determination under
subsection (2) as to the payment of compensation is to send written
notification of its determination to the person from whom the item
was seized and any person seeking compensation under this section.
(4) If an enforcement agency determines to pay compensation under
this section in relation to an item, the compensation is to be paid to
the person from whom the item was seized, or such other person as
appears to the enforcement agency to be entitled to it.
(5) A person from whom an item was seized under this Part, or any
other person who has sought compensation under this section, who
is dissatisfied with a determination by an enforcement agency under
this section as to the payment of such compensation may apply to
the Administrative Decisions Tribunal for a review of the
determination within 10 days after the date on which notification of
the determination was received.
52 Application for order disallowing seizure
(1) A person claiming to be entitled to any item seized under this Part
may, within 10 days after the date on which the seizure took place,
lodge an application with the District Court or a Local Court for an
order disallowing the seizure.
(2) The application is to be made in accordance with the rules
governing the court and is not to be heard unless the applicant has
previously served a copy of the application on the enforcement
agency concerned.
Page 29
Clause 53 Food Bill 2003
Part 4 Inspection and seizure powers
53 Enforcement agency entitled to answer application
The enforcement agency concerned is entitled to appear as
respondent at the hearing of an application made under section 52.
54 Order disallowing seizure of item
The court, on the hearing of an application made under section 52,
must make an order disallowing the seizure of an item if:
(a) it is proved that the applicant would, but for the seizure, be
entitled to the item and it is not proved that an offence under
this Act or the regulations was being, or had been, committed,
being an offence of which the item was evidence, or
(b) in the opinion of the court, there are exceptional
circumstances justifying the making of such an order,
but otherwise the court must refuse the application.
55 Ancillary orders
(1) In the event that the court makes an order for the return of any item
seized under this Part, it must also make one or both of the following
orders:
(a) an order directing the respondent to cause the item to be
delivered to the applicant or to such other person as appears
to the court to be entitled to it,
(b) if the item cannot for any reason be so delivered or has in
consequence of the seizure depreciated in value, an order
directing the enforcement agency concerned to pay to the
applicant such amount by way of compensation as the court
considers to be just and reasonable.
(2) Despite subsection (1), the court is not to award an amount of
compensation that exceeds its general monetary jurisdiction.
(3) The award of costs with respect to the hearing of the application lies
in the discretion of the court.
(4) If the court makes an order for the payment of any amount as
compensation or awards any amount as costs, the order is
enforceable as a judgment of the court.
Page 30
Food Bill 2003 Clause 56
Inspection and seizure powers Part 4
56 Adjournment pending hearing of other proceedings
If on the hearing of an application made under section 52 it appears
to the court that the item that is the subject of the application is
required to be produced in evidence in any pending proceedings in
connection with an offence under this Act or the regulations or
under any other Act or regulations under any other Act, the court, on
the application of the respondent or on its own motion, may adjourn
the hearing until the conclusion of those proceedings.
Page 31
Clause 57 Food Bill 2003
Part 5 Improvement notices and prohibition orders for premises or equipment
Part 5 Improvement notices and prohibition orders
for premises or equipment
57 Unclean or unfit premises, vehicles or equipment
If an authorised officer believes, on reasonable grounds, that:
(a) any premises used by a food business in connection with the
handling of food intended for sale or any equipment or food
transport vehicle is in an unclean or insanitary condition or is
otherwise unfit for the purpose for which it is designed or
intended to be used, or
(b) any premises used by a food business in connection with the
handling of food intended for sale or any equipment or food
transport vehicle does not comply with a provision of the
Food Safety Standards, or
(c) in relation to any premises used in connection with the
handling of food for sale or any food transport vehicle, any
relevant food safety program prepared in accordance with the
regulations is not being implemented adequately by a food
business, or
(d) any provision of the Food Standards Code is being
contravened in relation to the handling of food intended for
sale on any premises or in any food transport vehicle used by
a food business in connection with the handling of food
intended for sale,
the authorised officer may serve an improvement notice on the
proprietor of the food business in accordance with this Part.
58 Improvement notice
(1) An improvement notice is to take the form of an order that:
(a) premises, equipment or a food transport vehicle be put into a
clean and sanitary condition, or be repaired, to the satisfaction
of an authorised officer, or
(b) equipment or a vehicle be replaced, or
(c) a food safety program be prepared if required by the
regulations, or
(d) a food safety program required by the regulations be revised
so as to comply with the requirements of the regulations, or
Page 32
Food Bill 2003 Clause 59
Improvement notices and prohibition orders for premises or equipment Part 5
(e) in relation to the handling of food intended for sale, measures
be taken to implement the provisions of any relevant food
safety program required to be prepared by the regulations, or
(f) in relation to the handling of food intended for sale, measures
be taken to implement the requirements of the Food Safety
Standards,
within a period of 24 hours (or such longer period as is specified in
the notice) after the service of the notice on the proprietor of the
food business.
(2) Before the end of the period specified in the improvement notice,
the authorised officer who issued the notice may, on his or her own
motion or on the application of the proprietor of the food business,
extend the period within which the proprietor of the food business
is to take action in accordance with the notice.
(3) An improvement notice is to state that it is issued under this section.
59 Compliance with improvement notice
(1) If an improvement notice is complied with, an authorised officer is
to note the date of compliance on a copy of the notice.
(2) An authorised officer must give a copy of an improvement notice,
noted in accordance with this section, to the person on whom the
improvement notice was served if requested to do so by the person.
60 Prohibition order
(1) If a regulatory authority or an enforcement agency believes, on
reasonable grounds:
(a) that any of the circumstances specified in section 57 (a), (b),
(c) or (d) exist, and
(b) that:
(i) the proprietor of a food business has not complied with
an improvement notice within the time required by
section 58 for compliance, or
(ii) the issue of the order is necessary to prevent or mitigate
a serious danger to public health,
the regulatory authority or the enforcement agency may serve a
prohibition order on the proprietor of the food business in
accordance with this Part.
Page 33
Clause 61 Food Bill 2003
Part 5 Improvement notices and prohibition orders for premises or equipment
(2) A prohibition order is to take the form of an order that:
(a) no food intended for sale is to be handled on specified
premises or a specified part of specified premises, or
(b) no food intended for sale is to be conveyed in a specified
vehicle, or
(c) specified equipment is not to be used in connection with food
intended for sale, or
(d) no food intended for sale is to be handled by a food business
in a specified way or for a specified purpose,
until the proprietor of the food business has been given a certificate
of clearance stating that the premises, part of the premises, vehicle
or equipment may be used for the handling or conveyance of food
intended for sale, or for use in connection with such food, or that the
food may be handled in the specified way or for the specified
purpose, as the case may be.
(3) A prohibition order is to state that it is issued under this section.
(4) The regulatory authority or person that made the order must give a
certificate of clearance if, after an inspection of the premises, part of
the premises, vehicle or equipment, or the way of handling food,
specified in the prohibition order, the regulatory authority or person
finds, by the regulatory authority's or person's own inspection or
the report of an authorised officer, that:
(a) the premises, part of the premises, vehicle or equipment, or
the handling of food by the food business in the specified way
or for the specified purpose, is not a serious danger to public
health, and
(b) the person on whom the prohibition order was served has
complied with the prohibition order and any improvement
notices served on the person.
61 Scope of notices and orders
An improvement notice or a prohibition order may be made with
respect to any one or more of the following:
(a) any premises or any part of any premises, food transport
vehicle or equipment specified in the notice or order,
(b) all equipment contained on any premises or any part of any
premises, or in a food transport vehicle, specified in the notice
or order, or any specified equipment so contained,
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Food Bill 2003 Clause 62
Improvement notices and prohibition orders for premises or equipment Part 5
(c) the handling of food intended for sale by a food business in a
specified way or for a specified purpose.
62 Notices and orders to contain certain information
An improvement notice or prohibition order under this Part:
(a) must specify any provision of the Food Standards Code to
which it relates, and
(b) may specify particular action to be taken by a person to ensure
compliance with the provision of the Food Standards Code to
which it relates.
63 Request for re-inspection
(1) The proprietor of the food business whose premises (other than a
vehicle) are affected by a prohibition order may at any time after the
order has been served make a written request to the regulatory
authority or person who made the order to cause the premises to be
inspected by an authorised officer.
(2) The proprietor of the food business whose vehicle or equipment is
affected by a prohibition order may at any time after the order has
been served make a written request to the regulatory authority or
person who made the order to cause the vehicle or equipment to be
inspected by an authorised officer:
(a) at the place where it was originally inspected, or
(b) if it is not convenient for it to be inspected at that place, at
some other place that the regulatory authority or person who
made the order has agreed to.
(3) If a request for inspection is made under this section and the
premises, vehicle or equipment concerned, through no fault of the
proprietor of the food business, is not inspected by an authorised
officer within the period of 48 hours of the receipt of the request by
the regulatory authority or person, a certificate of clearance is taken
to have been given to the proprietor of the food business under
section 60.
64 Contravention of prohibition order
A person must not contravene or fail to comply with a prohibition
order served on the person under this Part.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
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Clause 65 Food Bill 2003
Part 5 Improvement notices and prohibition orders for premises or equipment
65 Review of decision to refuse certificate of clearance
The proprietor of a food business on whom a prohibition order has
been served may apply to the Administrative Decisions Tribunal for
a review of a decision of the regulatory authority or the person who
made the order to refuse to give a certificate of clearance under
section 60 to the proprietor.
66 Compensation
(1) A person bound by a prohibition order who suffers loss as a result
of the making of the order may apply to the regulatory authority or
person who made the order for compensation if the person bound by
the order considers that there were no grounds for the making of the
order.
(2) If there were no grounds for the making of the order, the regulatory
authority or enforcement agency is to pay such compensation to the
applicant as is just and reasonable.
(3) The regulatory authority or enforcement agency is to send written
notification of its determination as to the payment of compensation
under this section to each applicant for the payment of such
compensation.
(4) If the regulatory authority or enforcement agency has not
determined an application for compensation under this section
within 28 days of receiving the application, the regulatory authority
or enforcement agency is taken to have refused to pay any
compensation.
(5) An applicant for the payment of compensation under this section
who is dissatisfied with a determination by the regulatory authority
or enforcement agency as to the refusal to pay compensation or as
to the amount of compensation may apply to the Administrative
Decisions Tribunal for a review of the determination:
(a) within 28 days after the day on which notification of the
determination was received, or
(b) in a case to which subsection (4) applies, within 28 days after
the expiration of the 28-day period referred to in that
subsection.
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Food Bill 2003 Clause 67
Taking and analysis of samples Part 6
Part 6 Taking and analysis of samples
Division 1 Taking of samples
67 Proprietor to be informed
Whenever an authorised officer obtains a sample of food for the
purposes of analysis, an authorised officer must, either before or as
soon as practicable after obtaining the sample, inform:
(a) the proprietor of the food business from which the sample is
to be taken or was taken, or
(b) if the proprietor is not present or readily available, the person
from whom the sample was obtained or who was in charge of
the food from which the sample was taken,
of the authorised officer's intention to have the sample analysed.
68 Payment for sample
An authorised officer when obtaining a sample of food must pay, or
tender payment of:
(a) the amount prescribed by the regulations as the amount
payable for the sample concerned, or
(b) if no such amount is prescribed by the regulations, an amount
equal to the current market value of the sample,
to the person from whom the sample is obtained.
69 Samples from vending machines
Sections 67 and 68 do not apply to the obtaining of a sample by an
authorised officer from a vending machine if the authorised officer
obtains the sample by making proper payment for it and the
authorised officer cannot identify anyone who at the time appears to
be in charge of the machine.
70 Packaged food
An authorised officer who takes a sample of food for the purposes
of this Act that is contained in a closed package intended for retail
sale must take the whole of the package unless the package contains
two or more smaller packages of the same food.
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71 Procedure to be followed
(1) This section applies to the taking of samples for the purposes of this
Act except to the extent that the Food Standards Code otherwise
provides.
(2) An authorised officer who obtains a sample of food for the purposes
of analysis must (unless subsection (3) applies):
(a) divide the sample into 3 separate parts and mark and seal or
fasten each part in such manner as its nature will permit, and
(b) leave one part with the proprietor of the food business or any
other person from whom the sample was obtained or a person
appearing to be the employee or agent of that proprietor or
other person, and
(c) submit one of the remaining parts for analysis, and
(d) retain the other remaining part for future comparison.
(3) If the division of a sample for analysis into 3 separate parts in
accordance with subsection (2) would in the opinion of the
authorised officer:
(a) so affect or impair the composition or quality of the sample as
to render the separate parts unsuitable for accurate analysis, or
(b) result in the separate parts being of an insufficient size for
accurate analysis, or
(c) render the sample in any other way unsuitable for analysis,
including a method of analysis prescribed by the regulations
in relation to the food from which the sample was taken,
the authorised officer may take, in accordance with this section, as
many samples as the authorised officer considers necessary to
enable an accurate analysis to be carried out and may deal with the
sample or samples in such manner as is appropriate in the
circumstances.
(4) If a sample of food is taken by an authorised officer in the form of
separate or severable objects, it is not necessary, in dividing that
sample into parts in accordance with this section, to divide any one
of those objects, and it is sufficient compliance with this section if
the authorised officer:
(a) takes a number of those objects, and
(b) divides the number so taken into the requisite number of parts
so that each part consists of one or more than one of the
separate or severable objects, and
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Food Bill 2003 Clause 72
Taking and analysis of samples Part 6
(c) deals with those parts in accordance with the preceding
provisions of this section.
72 Samples to be submitted for analysis
An authorised officer must submit any sample obtained in
accordance with this Division for analysis under Division 2 unless
no longer of the opinion that the sample ought to be analysed.
Division 2 Procedures relating to analyses
73 Compliance with Food Standards Code
A person who carries out an analysis for the purposes of this Act is
to comply with any requirements of the Food Standards Code
relating to the carrying out of analyses.
74 Certificate of analysis
(1) This section applies to an analysis that is carried out:
(a) by an approved laboratory, or
(b) by an approved analyst, or
(c) under the supervision of an approved analyst,
for the purposes of this Act.
(2) On completion of an analysis to which this section applies:
(a) the person in charge of the laboratory at which the analysis
was carried out, or
(b) the approved analyst who carried out the analysis, or
(c) the approved analyst who supervised the carrying out of the
analysis,
is to give the person who requested the analysis, or an agent of the
person, a certificate of analysis, in the approved form, that complies
with the requirements of subsection (3).
(3) The certificate of analysis must:
(a) be dated and signed by the person in charge of the laboratory
at which the analysis was carried out or by the approved
analyst who carried out the analysis or who supervised the
carrying out of the analysis, and
(b) contain a written report of the analysis that sets out the
findings, and
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(c) specify the requirements, if any, of the Food Standards Code
relating to the carrying out of the analysis and certify that the
analysis was carried out in accordance with those
requirements.
Division 3 Approval of laboratories
75 Approval of laboratories
(1) The regulatory authority may approve laboratories for the purposes
of carrying out analyses under this Act.
(2) A person providing or intending to provide analysis services at a
laboratory may make an application, in the approved form, to the
regulatory authority for an approval of the laboratory under this
Division.
(3) The application is to be accompanied by:
(a) such information as the regulatory authority requires to
determine the application, and
(b) the fee, if any, prescribed by the regulations.
(4) The regulatory authority may, after considering an application for
approval:
(a) grant the application, with or without conditions, or
(b) refuse the application.
(5) If the regulatory authority grants an application for approval, it must
issue the applicant with a written approval that sets out the
conditions to which the approval is subject.
(6) If the regulatory authority refuses an application for approval, the
regulatory authority must give notice of the refusal in writing to the
applicant setting out the reasons for the refusal.
76 Term of approval
Except during any period of suspension, an approval of a laboratory
granted under this Division remains in force until cancelled.
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Taking and analysis of samples Part 6
77 Approved laboratory to give notice of certain interests
The person in charge of an approved laboratory must notify the
regulatory authority of any direct or indirect interest in any food
business that a person concerned in the management of, or an
employee of, the approved laboratory has as soon as possible after
becoming aware of that interest.
Maximum penalty: 50 penalty units.
78 Variation of conditions or suspension or cancellation of approval of
laboratory
(1) The regulatory authority may vary the conditions of, or suspend or
cancel, the approval of a laboratory under this Division.
(2) An approval of a laboratory may be suspended or cancelled on one
or more of the following grounds:
(a) if the regulatory authority is satisfied that a person providing
services at the laboratory has wilfully or negligently
contravened or failed to comply with any provision of this Act
or the regulations,
(b) if the regulatory authority is satisfied that a person providing
services at the laboratory has contravened a condition to
which the approval is subject,
(c) if the regulatory authority is satisfied that a person in charge
of, concerned in the management of or employed by, the
laboratory has a direct or indirect interest in any food business
that, in the opinion of the regulatory authority, could affect the
carrying out of the laboratory's functions under this Act,
(d) at the request of the person in charge of the laboratory,
(e) for any other reason that the regulatory authority considers
appropriate.
(3) The regulatory authority may only vary the conditions of, or
suspend or cancel, the approval of a laboratory:
(a) after having given the person in charge of the laboratory:
(i) written reasons of its intention to vary, suspend or
cancel, and
(ii) an opportunity to make submissions, and
(b) after having considered any submissions duly made by the
person.
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(4) Subsection (3) does not apply to the cancellation of an approval at
the request of the person in charge of the laboratory.
(5) A variation of the conditions of, or the suspension or cancellation of,
the approval of a laboratory:
(a) must be made by notice in writing, and
(b) must be served on the person in charge of the laboratory, and
(c) takes effect at the time at which the notice is served or at a
later time specified in the notice.
79 Review of decisions relating to approval
(1) An applicant for an approval of a laboratory under this Division, or
the holder of such an approval, may apply to the Administrative
Decisions Tribunal for a review of any of the following decisions
relating to the application or approval:
(a) the grant or refusal of an application for approval of a
laboratory under this Division,
(b) the imposition of conditions on an approval,
(c) the variation of conditions of an approval,
(d) the suspension or cancellation of an approval.
(2) An application under this section may only be made within 10 days
after service of:
(a) the relevant written approval or notice of refusal under section
75, in the case of an application for the review of a decision
referred to in subsection (1) (a) or (b), or
(b) the relevant notice of the variation, suspension or cancellation
under section 78, in the case of an application for the review
of a decision referred to in subsection (1) (c) or (d).
80 List of approved laboratories to be maintained
(1) The regulatory authority is to prepare and maintain a list of
approved laboratories.
(2) The list is to be made publicly available and is to be revised at least
annually.
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Food Bill 2003 Clause 81
Taking and analysis of samples Part 6
Division 4 Approval of analysts
81 Approval of persons to carry out analyses
(1) The regulatory authority may approve natural persons for the
purposes of carrying out analyses under this Act.
(2) A natural person may make an application, in the approved form, to
the regulatory authority for an approval under this Division.
(3) The application is to be accompanied by:
(a) such information as the regulatory authority requires to
determine the application, and
(b) the fee, if any, prescribed by the regulations.
(4) The regulatory authority may, after considering an application for
approval:
(a) grant the application, with or without conditions, or
(b) refuse the application.
(5) If the regulatory authority grants an application for approval, it must
issue the applicant with a written approval that sets out the
conditions to which the approval is subject.
(6) If the regulatory authority refuses an application for approval, the
regulatory authority must give notice of the refusal in writing to the
applicant setting out the reasons for the refusal.
82 Term of approval
Except during any period of suspension, an approval of a person
granted under this Division remains in force until cancelled.
83 Approved analyst to give notice of certain interests
A person who is an approved analyst must notify the regulatory
authority of any direct or indirect interest in any food business that
the person has as soon as possible after becoming aware of that
interest.
Maximum penalty: 50 penalty units.
84 Variation of conditions or suspension or cancellation of approval of
analyst
(1) The regulatory authority may vary the conditions of, or suspend or
cancel, an approval under this Division.
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(2) An approval of a person under this Division may be suspended or
cancelled on one or more of the following grounds:
(a) if the regulatory authority is satisfied that the person has
wilfully or negligently contravened any provision of this Act
or the regulations,
(b) if the regulatory authority is satisfied that the person has
contravened a condition to which the approval is subject,
(c) if the regulatory authority is satisfied that the person has a
direct or indirect interest in any food business that, in the
opinion of the regulatory authority, could affect the carrying
out of the person's functions under this Act,
(d) at the request of the person,
(e) for any other reason that the regulatory authority considers
appropriate.
(3) The regulatory authority may only vary the conditions of, or
suspend or cancel, the approval of a person under this Division:
(a) after having given the person:
(i) written reasons of its intention to vary, suspend or
cancel, and
(ii) an opportunity to make submissions, and
(b) after having considered any submissions duly made by the
person.
(4) Subsection (3) does not apply to the cancellation of an approval at
the request of the person to whom the approval relates.
(5) A variation of the conditions of, or the suspension or cancellation of,
an approval of a person under this Division:
(a) must be made by notice in writing, and
(b) must be served on the person, and
(c) takes effect at the time at which the notice is served or at a
later time specified in the notice.
85 Review of decisions relating to approval
(1) An applicant for an approval under this Division, or the holder of
such an approval, may apply to the Administrative Decisions
Tribunal for a review of any of the following decisions of the
regulatory authority relating to the application or approval:
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Food Bill 2003 Clause 86
Taking and analysis of samples Part 6
(a) the grant or refusal of an application for approval under this
Division, or
(b) the imposition of conditions on an approval, or
(c) the variation of conditions of an approval, or
(d) the suspension or cancellation of an approval.
(2) An application under this section may only be made within 10 days
after service of:
(a) the relevant written approval or notice of refusal under section
81, in the case of an application for the review of a decision
referred to in subsection (1) (a) or (b), or
(b) the relevant notice of the variation, suspension or cancellation
under section 84, in the case of an application for the review
of a decision referred to in subsection (1) (c) or (d).
86 List of approved analysts to be maintained
(1) The regulatory authority is to prepare and maintain a list of
approved analysts.
(2) The list is to be made publicly available and is to be revised at least
annually.
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Clause 87 Food Bill 2003
Part 7 Auditing
Part 7 Auditing
Division 1 Approval of food safety auditors
87 Approval of food safety auditors
(1) The regulatory authority may approve a natural person to be a food
safety auditor for the purposes of this Act if the regulatory authority
is satisfied that the person is competent to carry out the functions of
a food safety auditor having regard to:
(a) the person's technical skills and experience, and
(b) any guidelines relating to competency criteria approved by
the regulatory authority.
(2) A natural person may make an application, in the approved form, to
the regulatory authority for an approval under this Part.
(3) The application is to be accompanied by:
(a) such information as the regulatory authority requires to
determine the application, and
(b) the fee, if any, prescribed by the regulations.
(4) The regulatory authority may, after considering an application for
approval:
(a) grant the application, with or without conditions, or
(b) refuse the application.
(5) If the regulatory authority grants an application for approval, it must
issue the applicant with a written approval that sets out any
conditions to which the approval is subject.
(6) If the regulatory authority refuses an application for approval, the
regulatory authority must give notice of the refusal in writing to the
applicant setting out the reasons for the refusal.
88 Term of approval
Except during any period of suspension, an approval granted under
this Division remains in force for the period specified in the
approval unless sooner cancelled.
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Food Bill 2003 Clause 89
Auditing Part 7
89 Food safety auditor to give notice of certain interests
(1) A food safety auditor must notify the regulatory authority of any
direct or indirect interest in any food business that the auditor has as
soon as possible after becoming aware of that interest.
Maximum penalty: 50 penalty units.
(2) Payment to an auditor for carrying out the functions of an auditor
does not constitute a direct or indirect interest in a food business for
the purposes of subsection (1).
90 Variation of conditions or suspension or cancellation of approval of
auditor
(1) The regulatory authority may vary the conditions of, or suspend or
cancel, an approval under this Division.
(2) An approval of a person may be suspended or cancelled on one or
more of the following grounds:
(a) if the regulatory authority is satisfied that the person has
wilfully or negligently contravened any provision of this Act
or the regulations,
(b) if the regulatory authority is satisfied that the person has
contravened a condition to which the approval is subject,
(c) if the regulatory authority is satisfied that the person has not
competently carried out any duty of an auditor under this Act,
(d) if the regulatory authority is satisfied that the person has a
direct or indirect interest in any food business that, in the
opinion of the regulatory authority, could affect the
performance of the person's duties under this Act,
(e) at the request of the person,
(f) for any other reason that the regulatory authority considers
appropriate.
(3) Payment to an auditor for performing the duties of an auditor does
not constitute a direct or indirect interest in a food business for the
purposes of subsection (2) (d).
(4) The regulatory authority may only vary the conditions of, or
suspend or cancel, the approval of a person:
(a) after having given the person:
(i) written reasons of its intention to vary, suspend or
cancel, and
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Clause 91 Food Bill 2003
Part 7 Auditing
(ii) an opportunity to make submissions, and
(b) after having considered any submissions duly made by the
person.
(5) Subsection (4) does not apply to the cancellation of an approval at
the request of the person to whom the approval relates.
(6) A variation of the conditions of, or the suspension or cancellation of,
the approval of a person under this Part:
(a) must be by notice in writing, and
(b) must be served on the person to whom the approval relates,
and
(c) takes effect on the day on which the notice is served or on a
later day specified in the notice.
91 Review of decisions relating to approvals
(1) An applicant for an approval under this Division, or the holder of
such an approval, may apply to the Administrative Decisions
Tribunal for a review of any of the following decisions of the
regulatory authority relating to the application or approval:
(a) the grant or refusal of an application for an approval under
this Division,
(b) the imposition of conditions on an approval,
(c) the variation of conditions of an approval,
(d) the suspension or cancellation of an approval.
(2) An applicant for an approval under this Division, or the holder of
such an approval may apply to the regulatory authority for a review
of any of the following decisions relating to the application or
approval if the decision was made by a body acting under a
delegation given by the regulatory authority:
(a) the grant or refusal of an application for an approval under
this Division,
(b) the imposition of conditions on an approval,
(c) the variation of conditions of an approval,
(d) the suspension or cancellation of an approval.
(3) An application under this section may only be made within 10 days
after service of:
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Food Bill 2003 Clause 92
Auditing Part 7
(a) the relevant written approval or notice of refusal under section
87, in the case of an application for the review of a decision
referred to in subsection (1) (a) or (b) or (2) (a) or (b), or
(b) the relevant notice of the variation, suspension or cancellation
under section 90, in the case of an application for the review
of a decision referred to in subsection (1) (c) or (d) or (2) (c)
or (d).
Division 2 Auditing and reporting requirements
92 Food safety programs and auditing requirements
(1) The proprietor of a food business must ensure that any requirement
imposed by the regulations in relation to the preparation,
implementation, maintenance or monitoring of a food safety
program for the food business is complied with.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
(2) The proprietor of a food business must ensure that any food safety
program required to be prepared by the regulations in relation to the
food business is audited at least as frequently as is determined under
section 93 (1), or as redetermined under section 96, in relation to the
food business.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
93 Priority classification system and frequency of auditing
(1) The appropriate enforcement agency must determine:
(a) the priority classification of individual food businesses for the
purposes of the application of any requirements of the
regulations relating to food safety programs, and
(b) the frequency of auditing of any food safety programs
required to be prepared by the regulations in relation to the
food businesses.
(2) The determination must be made having regard to a priority
classification system for types of food businesses approved by the
regulatory authority.
(3) The appropriate enforcement agency must provide written
notification to the proprietor of a food business of:
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(a) the priority classification it has determined for the food
business, and
(b) the frequency of auditing of any food safety programs
required to be prepared by the regulations in relation to the
food business, and
(c) the date by which the food business must have implemented
any food safety program required to be prepared by the
regulations in relation to the food business.
(4) The appropriate enforcement agency may change the priority
classification of an individual food business if the appropriate
enforcement agency believes that the classification is inappropriate
for any reason, including as a result of changes made to the conduct
of the food business.
(5) The appropriate enforcement agency must provide written
notification to the proprietor of a food business of any change in
priority classification of the food business under subsection (4).
94 Duties of food safety auditors
A food safety auditor has the following duties:
(a) to carry out audits of any food safety programs required by the
regulations to be prepared in relation to food businesses
having regard to the requirements of the regulations,
(b) to carry out any necessary follow-up action, including further
audits, if necessary, to determine whether action has been
taken to remedy any deficiencies of any such food safety
program identified in an audit,
(c) to carry out assessments of food businesses to ascertain their
compliance with requirements of the Food Safety Standards,
(d) to report in accordance with section 95.
95 Reporting requirements
(1) A food safety auditor must report in writing to the appropriate
enforcement agency the results of any audit or assessment carried
out by the food safety auditor for the purposes of this Act.
(2) A report under subsection (1) must:
(a) be in the prescribed form, and
(b) be submitted to the appropriate enforcement agency within 21
days after the completion of the audit or assessment, and
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Auditing Part 7
(c) take account of any action taken before the submission of the
report to remedy any deficiency identified by the food safety
auditor.
(3) A food safety auditor must indicate in a report of an audit under
subsection (1):
(a) whether or not the food safety auditor is of the opinion that the
food business is being carried on in compliance with the
requirements of the regulations relating to food safety
programs, and
(b) any such requirements that the food safety auditor is of the
opinion are being contravened in relation to the food business
and the manner in which they are being contravened.
(4) A food safety auditor must indicate in a report of an assessment
under subsection (1):
(a) whether or not the food safety auditor is of the opinion that the
food business is being carried on in compliance with the
provisions of the Food Safety Standards, and
(b) any such provisions that the food safety auditor is of the
opinion are being contravened in relation to the food business
and the manner in which they are being contravened.
(5) A food safety auditor must report to the appropriate enforcement
agency any contravention of this Act, the regulations relating to
food safety programs, or the Food Safety Standards that comes to
the food safety auditor's attention in the course of carrying out an
audit or assessment for the purposes of this Act:
(a) that is an imminent and serious risk to the safety of food
intended for sale, or
(b) that will cause significant unsuitability of food intended for
sale,
as soon as possible but in any event within 24 hours after the
contravention comes to the food safety auditor's attention.
(6) A food safety auditor must report in writing to the appropriate
enforcement agency, giving reasons, if the food safety auditor
considers that the priority classification of a food business that has
been audited by the food safety auditor should be changed.
(7) A copy of a report provided to the appropriate enforcement agency
in relation to an audit or assessment must be given to the proprietor
of the food business concerned.
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Part 7 Auditing
96 Redetermination of frequency of auditing
(1) In this section:
food safety program, in relation to a food business, means the food
safety program (if any) required by the regulations to be prepared
for the food business.
priority classification means a priority classification set out in the
priority classification system referred to in section 93.
(2) A food safety auditor may determine that the audit frequency of a
food safety program for a food business that has been audited by a
food safety auditor be changed from the initial audit frequency
applicable to a food business within the relevant priority
classification to another audit frequency.
(3) The audit frequency to which the initial frequency may be changed
must be within the range of audit frequencies appropriate for food
businesses within that relevant priority classification.
(4) A food safety auditor must have regard to the following matters in
making such a determination:
(a) the compliance history of the food business concerned in
relation to any requirements of the regulations regarding food
safety programs and the requirements of the Food Safety
Standards,
(b) the audit compliance history (if any) established before the
commencement of this subsection.
97 Certificates of authority of food safety auditors
(1) The regulatory authority is to provide each food safety auditor with
a certificate of authority as a food safety auditor.
(2) The certificate of authority:
(a) must state that it is issued under this Act, and
(b) must give the name of the person to whom it is issued and bear
a photograph of that person and the person's signature, and
(c) must state the date, if any, on which it expires, and
(d) must specify any conditions to which the person's approval is
subject, and
(e) must bear the signature of the person by whom it is issued and
state the capacity in which the person is acting in issuing the
certificate.
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Auditing Part 7
98 List of food safety auditors to be maintained
(1) The regulatory authority is to prepare and maintain a list of food
safety auditors.
(2) The list is to be made publicly available and is to be revised at least
annually.
99 Obstructing or impersonating food safety auditors
(1) A person must not, without reasonable excuse, resist, obstruct or
attempt to obstruct, a food safety auditor in the exercise of the food
safety auditor's functions under this Act.
Maximum penalty: 500 penalty units in the case of an individual and
2,500 penalty units in the case of a corporation.
(2) A person who impersonates a food safety auditor is guilty of an
offence.
Maximum penalty: 500 penalty units.
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Clause 100 Food Bill 2003
Part 8 Notification and registration of food businesses and approval of food
premises
Part 8 Notification and registration of food
businesses and approval of food premises
100 Notification of conduct of food businesses
The proprietor of a food business must not conduct the food
business unless the proprietor has given written notice, in the
approved form, of the information specified in the Food Safety
Standards that is to be notified to the appropriate enforcement
agency before the business is conducted.
Maximum penalty: 500 penalty units in the case of an individual and
1,200 penalty units in the case of a corporation.
101 Exemption in relation to notification of information
Section 21 (to the extent to which it requires notification of the
information referred to in section 100) and section 100 do not apply
to the following food businesses:
(a) any food business that is not required by the Food Safety
Standards to notify that information, or
(b) any food business that is registered under this Act or under a
law prescribed by the regulations.
102 Registration of food businesses
(1) The proprietor of a food business that is required by the regulations
to be registered under this Part must not carry on the food business
unless it is registered under this Part.
Maximum penalty: 500 penalty units in the case of an individual and
1,200 penalty units in the case of a corporation.
(2) The appropriate enforcement agency may register a food business
for the purposes of this Part.
(3) The proprietor of a food business may make an application, in the
approved form, to the appropriate enforcement agency for the
registration of the food business under this Part.
(4) The application is to be accompanied by:
(a) if required by the appropriate enforcement agency, the design
and fitout specifications, in a form approved by the
appropriate enforcement agency, of any premises or proposed
premises on which food is to be handled in the course of
carrying on the food business, and
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premises
(b) such other information as the appropriate enforcement agency
requires to determine the application, and
(c) the fee, if any, prescribed by the regulations.
(5) The appropriate enforcement agency may, after considering an
application for registration:
(a) grant the application, with or without conditions, or
(b) refuse the application.
(6) If the appropriate enforcement agency grants an application for
registration, it must issue the applicant with a certificate of
registration that sets out the conditions to which the registration is
subject.
(7) If the appropriate enforcement agency refuses an application for
registration, the appropriate enforcement agency must give notice of
the refusal in writing to the applicant setting out the reasons for the
refusal.
103 Renewal of registration
(1) The holder of a certificate of registration under this Part may, at any
time during the currency of the registration, apply to the appropriate
enforcement agency for a renewal of the registration.
(2) The application is to be accompanied by such fee, if any, as is
prescribed by the regulations.
(3) The appropriate enforcement agency may, after considering an
application for renewal of registration:
(a) grant the application, with or without conditions, or
(b) refuse the application.
(4) If the appropriate enforcement agency grants an application for
renewal of registration, the registration is renewed by the issue of a
further certificate of registration:
(a) that takes effect from the expiry of the holder's current
certificate of registration, or
(b) if the certificate is issued after that expiry--that takes effect,
or is taken to have effect, from the date specified in the
certificate.
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(5) If the appropriate enforcement agency refuses an application for
renewal of registration, the appropriate enforcement agency must
give notice of the refusal in writing to the applicant setting out the
reasons for the refusal.
(6) Nothing in this section gives any force to a certificate of registration
that has expired or been cancelled, or otherwise affects the operation
of section 104.
104 Term of registration
Except during any period of suspension, the registration of a food
business granted under this Part remains in force for the period
specified in the certificate unless sooner cancelled.
105 Variation of conditions or suspension or cancellation of registration
of food businesses
(1) The appropriate enforcement agency may vary the conditions of, or
suspend or cancel, the registration of a food business under this Part.
(2) The registration of a food business may be suspended or cancelled
on one or more of the following grounds:
(a) if the appropriate enforcement agency is satisfied that there
has been a contravention of any provision of this Act or the
regulations in the conduct of the food business,
(b) if the appropriate enforcement agency is satisfied that a
condition to which the registration is subject is being
contravened by the food business,
(c) at the request of the holder of the certificate of registration,
(d) for any other reason that the appropriate enforcement agency
considers appropriate.
(3) The appropriate enforcement agency may only vary the conditions
of, or suspend or cancel, the registration of a food business under
this Part:
(a) after having given the holder of the certificate of registration:
(i) written notice of its intention to vary, suspend or cancel
the registration setting out its reasons, and
(ii) an opportunity to make submissions, and
(b) after having considered any submissions duly made by the
holder.
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(4) Subsection (3) does not apply to the cancellation of registration at
the request of the holder of the certificate of registration.
(5) A variation of the conditions of, or the suspension or cancellation of,
the registration of premises:
(a) must be made by notice in writing, and
(b) must be served on the holder of the certificate of registration,
and
(c) takes effect on the day on which the notice is served or on a
later day specified in the notice.
106 Review of decisions relating to registration
(1) An applicant for registration of a food business under this Part, or
the holder of any such registration, may apply to the Administrative
Decisions Tribunal for a review of any of the following decisions of
an enforcement agency relating to the application or registration:
(a) the grant or refusal of an application for the registration, or the
renewal of registration, of a food business under this Part,
(b) the imposition of conditions on the registration of a food
business,
(c) the variation of conditions of the registration of a food
business,
(d) the suspension or cancellation of the registration of a food
business.
(2) An application under this section may only be made within 10 days
after:
(a) the issue of the relevant certificate of registration under
section 102 (6) or 103 (4) or the service of the relevant notice
of refusal under section 102 (7) or 103 (5), in the case of an
application for the review of a decision referred to in
subsection (1) (a) or (b), or
(b) the service of the relevant notice of the variation, suspension
or cancellation under section 105 (5), in the case of an
application for the review of a decision referred to in
subsection (1) (c) or (d).
107 Register of food businesses to be maintained
(1) Each enforcement agency is to prepare and maintain a list of:
(a) food businesses notified to it under section 100, and
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premises
(b) food businesses registered by it under section 102.
(2) The list is to be made publicly available and is to be revised at least
annually.
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Administration Part 9
Part 9 Administration
Division 1 Regulatory authority
108 Functions of the regulatory authority in relation to this Act
The regulatory authority has such functions in relation to the
administration of this Act as are conferred or imposed on it by or
under this Act.
109 Delegation
(1) The regulatory authority may delegate to:
(a) a member of staff of the regulatory authority, or
(b) an authorised officer, or
(c) the holder of an office prescribed by the regulations,
any function of the regulatory authority under this Act that is not
specified in subsection (2).
(2) The following functions of the regulatory authority cannot be
delegated:
(a) the power of delegation conferred by this section,
(b) any function under Part 3 (Emergency powers),
(c) any function under section 111 (Conditions on exercise of
functions by enforcement agencies).
(3) A delegate may sub-delegate to a person referred to in subsection
(1) any function delegated by the regulatory authority if the delegate
is authorised in writing to do so by the regulatory authority.
(4) A function must not be delegated under this section to an
enforcement agency without the consent in writing of the
enforcement agency.
Division 2 Functions of enforcement agencies
110 Functions of enforcement agencies in relation to this Act
(1) An enforcement agency has such functions in relation to the
administration of this Act as are conferred or imposed on it by or
under this Act or are delegated to it under this Act.
(2) A function conferred specifically on an enforcement agency (other
than the regulatory authority) by this Act cannot be delegated.
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111 Conditions on exercise of functions by enforcement agencies
The regulatory authority, after consultation with an enforcement
agency, may, in writing, impose conditions or limitations on the
exercise of functions under this Act by the enforcement agency.
112 Exercise of functions by enforcement agencies
(1) The regulatory authority may adopt national guidelines relating to
the exercise of its functions under this Act and may require other
enforcement agencies and authorised officers to adopt those
guidelines in the carrying out of their functions under this Act.
(2) In this section, national guidelines means guidelines prepared for
the purposes of this section by the Commonwealth Food Authority.
113 Reports by enforcement agencies
(1) An enforcement agency (other than the regulatory authority) is to
report to the regulatory authority, at such intervals as the regulatory
authority requires, on the performance of functions under this Act
by persons employed or engaged by the agency.
(2) In addition to any report required under subsection (1), an
enforcement agency is to forward to the regulatory authority details
of any proceedings for an offence under this Act or the regulations
taken by an officer of the agency within one month of the
proceedings being finally dealt with.
Division 3 Appointment of authorised officers
114 Appointment of authorised officers
(1) An enforcement agency may appoint a person to be an authorised
officer for the purposes of this Act, but only if the enforcement
agency considers the person has appropriate qualifications or
experience to exercise the functions of an authorised officer.
(2) Each enforcement agency is to prepare and maintain a list of
authorised officers appointed by it.
115 Certificates of authority
(1) An enforcement agency is to provide each authorised officer
appointed by it with a certificate of authority as an authorised
officer.
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Administration Part 9
(2) The functions of an authorised officer may be limited by the
authorised officer's certificate of authority.
(3) The certificate of authority:
(a) must state that it is issued under this Act, and
(b) must give the name of the person to whom it is issued and bear
a photograph of that person and the person's signature, and
(c) must state the date, if any, on which it expires, and
(d) must specify any conditions to which the person's authority is
subject, and
(e) must bear the signature of the person by whom it is issued and
state the capacity in which the person is acting in issuing the
certificate.
(4) An authorised officer is required to produce the certificate of
authority:
(a) if requested to do so by the proprietor of a food business
whose premises are entered by the authorised officer, or
(b) if requested to do so by a person whom the authorised officer
requires to produce anything or to answer any question.
Division 4 Advisory committees
116 Establishment of advisory committees
(1) The Minister may establish advisory committees to assist the
regulatory authority in the exercise of its functions.
(2) An advisory committee is to consist of members appointed from
persons having expertise in one or more of the following areas:
(a) the food industry,
(b) public health,
(c) the interests of consumers,
(d) the enforcement of food legislation.
(3) In addition, the Minister may appoint as members of an advisory
committee persons having expertise in nutrition, toxicology,
microbiology and food technology and such other persons as the
Minister considers have appropriate expertise, qualifications or
experience as will enable them to make a valuable contribution to
the advisory committee.
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(4) The Minister may determine the term of office and remuneration of
members and the procedure of an advisory committee.
117 Functions of advisory committees
An advisory committee has the following functions:
(a) to provide advice to the Minister and the regulatory authority
on any issue relating to food as the Minister or the regulatory
authority may require,
(b) such other advisory functions relating to food as the Minister
may determine.
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Part 10 Procedural and evidentiary provisions
118 Nature of proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be
dealt with:
(a) summarily before a Local Court, or
(b) before the Supreme Court in its summary jurisdiction.
(2) If proceedings are brought before a Local Court, the maximum
monetary penalty that the Local Court may impose for the offence
is $10,000, despite any higher maximum monetary penalty provided
in respect of the offence.
119 Institution of proceedings
(1) Proceedings for an offence under this Act or the regulations may
only be instituted:
(a) unless paragraph (b) applies, within 12 months after the date
on which the offence is alleged to have been committed, or
(b) if the proceedings are in respect of a sample of food, within 6
months after the date on which the sample was obtained.
(2) The court may extend the time referred to in subsection (1) for the
institution of proceedings.
120 Penalty notices for certain offences
(1) An authorised officer may serve a penalty notice on a person if it
appears to the officer that the person has committed an offence
under this Act or the regulations, being an offence prescribed by the
regulations.
(2) A penalty notice is a notice to the effect that, if the person served
does not wish to have the matter determined by a court, the person
may pay, within the time and to the person specified in the notice,
the penalty prescribed by the regulations for the offence if dealt with
under this section.
(3) A penalty notice is to be served personally or by post.
(4) If the amount of the penalty prescribed for an alleged offence is paid
under this section, no person is liable to any further proceedings for
the alleged offence.
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(5) Payment under this section is not to be regarded as an admission of
liability for the purpose of, nor in any way as affecting or
prejudicing, any civil claim, action or proceeding arising out of the
same occurrence.
(6) The regulations may:
(a) prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision creating
the offence, and
(b) prescribe the amount of penalty payable for the offence if
dealt with under this section, and
(c) prescribe different amounts of penalties for different offences
or classes of offences.
(7) The amount of a penalty prescribed under this section for an offence
must not exceed the maximum amount of penalty which could be
imposed for the offence by a court.
(8) This section does not limit the operation of any other provision of,
or made under, this or any other Act relating to proceedings that may
be taken in respect of offences.
(9) In this section, authorised officer means a police officer, the
Director-General or an authorised officer as defined in section 4 (1).
121 Offences by employers
(1) If an employee contravenes any provision of this Act or the
regulations, the employer is taken to have contravened the same
provision.
(2) It is a defence in proceedings against an employer for such a
contravention if it is established that the employer could not, by the
exercise of due diligence, have prevented the contravention.
(3) An employer may be proceeded against and convicted under a
provision pursuant to this section whether or not the employee has
been proceeded against or been convicted under that provision.
122 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any
provision of this Act or the regulations, each person who is a
director of the corporation or who is concerned in the management
of the corporation is taken to have contravened the same provision,
unless the person satisfies the court that:
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Procedural and evidentiary provisions Part 10
(a) the corporation contravened the provision without the
knowledge actual, imputed or constructive of the person, or
(b) the person was not in a position to influence the conduct of the
corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to
prevent the contravention by the corporation.
(2) A person may be proceeded against and convicted under a provision
pursuant to this section whether or not the corporation has been
proceeded against or been convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation
for an offence committed by the corporation against this Act or the
regulations.
(4) Without limiting any other law or practice regarding the
admissibility of evidence, evidence that an officer, employee or
agent of a corporation (while acting in his or her capacity as such)
had, at any particular time, a particular intention, is evidence that the
corporation had that intention.
123 Liability of employees and agents
(1) Except as provided by subsection (2), it is no defence in proceedings
for an offence under this Act or the regulations that the defendant
was, at the time of the commission of the offence, an employee or
agent of another person.
(2) In any proceedings for an offence under this Act or the regulations,
it is a defence for the defendant to prove that the defendant was
under the personal supervision of the proprietor of the food
business, or the owner or person in charge of the place or vehicle, in
relation to which the offence was committed or of another person
representing that proprietor, owner or person in charge.
124 Alternative verdicts for serious food offences
(1) If, on the trial of a person charged with an offence against section 13
the trier of fact is not satisfied that the person committed the offence
but is satisfied that the person committed an offence against section
16 (1), the trier of fact may find the person not guilty of the offence
charged but guilty of an offence against section 16 (1), and the
person is liable to punishment accordingly.
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(2) If, on the trial of a person charged with an offence against section
14, the trier of fact is not satisfied that the person committed the
offence but is satisfied that the person committed an offence against
section 16 (2), the trier of fact may find the person not guilty of the
offence charged but guilty of an offence against section 16 (2), and
the person is liable to punishment accordingly.
125 No defence to allege deterioration of sample
In any proceedings for an offence under this Act or the regulations,
it is not a defence for a person to allege that any part of a sample
retained for future comparison with a sample that has been analysed
has from natural causes deteriorated, perished or undergone any
material change in its constitution.
126 Onus to prove certain matters on defendant
In any proceedings for an offence under this Act or the regulations
against a defendant who was responsible for making a statement on
a package or in an advertisement relating to the origin or
composition of the food in question or the therapeutic or nutritive
properties of the food, being a statement that is alleged to have
caused the food to be falsely described, the onus of proving the
correctness of the statement is on the defendant.
127 Presumptions
In any proceedings for an offence under this Act or the regulations,
it is presumed until, on the balance of probabilities, the contrary is
proved that:
(a) any substance or thing capable of being used as food that was
sold or prepared for sale or conveyed or intended for sale was
sold, prepared, conveyed or intended for sale for human
consumption, and
(b) any substance or thing capable of being used as food is not for
human consumption if it is prominently marked as not being
for human consumption, or with words to that effect, and
(c) food that is part of a batch, lot or consignment of food of the
same class or description is representative of all of the food in
that batch, lot or consignment, and
(d) each part of a sample of food divided for the purpose of
analysis under this Act is of uniform composition with every
other part of that sample, and
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(e) a person who sold food in the conduct of a food business and
was not the proprietor of the food business sold the food as the
agent of the proprietor, and
(f) a person who appears from any statement on a package
containing food for sale to have imported, manufactured,
packed or prepared the food is the importer, manufacturer,
packager or preparer of the food, as the case may be, and
(g) food that has been sold to a consumer has been sold at some
time by any person who respectively imported, manufactured,
prepared or packed the food, and
(h) a signature purporting to be that of the regulatory authority, an
authorised officer, the person in charge of an approved
laboratory or an approved analyst is that signature.
128 Certificate evidence and evidence of analysts
(1) A certificate of the result of an analysis obtained by the defendant
or the prosecution in proceedings for an offence under this Act or
the regulations is admissible in any such proceedings and evidence
of the facts stated in it if:
(a) the certificate was issued in accordance with section 74, and
(b) a copy of the certificate is served by the person who obtained
it on the other party to the proceedings at least 7 days before
the hearing.
(2) An analyst who carried out an analysis in relation to which a
certificate is produced as evidence in proceedings as referred to in
subsection (1) need not be called as a witness in the proceedings by
the party producing the certificate unless the court hearing the
proceedings so orders (whether on application made to it or by any
other means).
(3) In any proceedings for an offence under this Act or the regulations,
the prosecution cannot rely on an analysis as evidence for the
purposes of those proceedings unless the person who carried out the
analysis:
(a) is employed or engaged by an approved laboratory, or
(b) is an approved analyst, or
(c) was acting under the supervision of an approved analyst.
(4) In any proceedings for an offence under this Act or the regulations:
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(a) a document purporting to be a copy of any registration,
approval, order, notice or authority under this Act is evidence
of that registration, approval, order, notice or authority, or
(b) a document purporting to be signed by the regulatory
authority certifying that at a specified time or during a
specified period:
(i) there was or was not in force any registration, approval,
order, notice or authority in relation to a specified
person or persons, or
(ii) that a registration, approval, order, notice or authority
was or was not subject to specified conditions,
is evidence of the matters contained in the document, or
(c) a document purporting to be signed by the regulatory
authority certifying:
(i) as to the receipt or otherwise of any notice, application
or payment, or
(ii) that any amount of fees or other money is payable under
this Act by a specified person and has not been paid at
the date of the certificate,
is evidence of the matters contained in the document.
129 Power of court to order further analysis
(1) In any proceedings for an offence under this Act or the regulations,
the court may, if satisfied that:
(a) there is a disagreement between the evidence of the analysts
for the parties to the proceedings, and
(b) it is in the interests of justice to do so,
order that the part or parts of any sample retained under section 71
be sent by the enforcement agency concerned to an analyst specified
by the court or agreed to by the parties.
(2) An order may be made under subsection (1) at the request of any
party to the proceedings or on the court's own motion.
(3) An analyst who is sent a part or parts of a sample for analysis under
this section is to make an analysis of that part or those parts for the
information of the court.
(4) Subject to section 131, the cost of an analysis under this section is
to be borne by the enforcement agency concerned.
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130 Disclosure by witnesses
(1) In any proceedings for an offence under this Act or the regulations,
a witness for the prosecution is not compelled to disclose the fact
that the witness received information, the nature of the information
received or the name of the person from whom the information was
received.
(2) An authorised officer appearing as a witness in any proceedings is
not compelled to produce any document containing any confidential
matter made or received in his or her capacity as an authorised
officer.
(3) Despite subsections (1) and (2), a court hearing proceedings for an
offence under this Act or the regulations may order the disclosure of
any matter, or the production of a document, referred to in those
subsections if the court considers that it is necessary in the interests
of justice.
131 Court may order costs and expenses
Without affecting any other power of a court to award costs, a court
that hears proceedings for an offence under this Act or the
regulations has power to make such orders as it thinks fit in respect
of the costs and expenses of and incidental to the examination,
seizure, detention, storage, analysis (including further analysis),
destruction or other disposition of any thing the subject of those
proceedings.
132 Court may order corrective advertising
A court by which a person (in this section referred to as the
defendant) is found guilty of an offence under Part 2, may make one
or both of the following orders:
(a) an order requiring the defendant to disclose in a particular
manner to the public, to a particular person or to a particular
class of persons specified information, or information of a
specified kind, which the defendant possesses or to which the
defendant has access,
(b) an order requiring the defendant to publish, at his or her own
expense, in a manner and at times specified in the order,
advertisements the terms of which are specified in the order.
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133 Information in relation to prosecutions to be forwarded to Director-
General
Whenever an information is laid by an employee of a council or a
police officer against a person for an offence against this Act or the
regulations, it is the duty of the council concerned or the
Commissioner of Police, as the case requires, to forward to the
regulatory authority, within one month after the prosecution is dealt
with:
(a) a copy of the information, and
(b) particulars of the result of the prosecution.
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Miscellaneous Part 11
Part 11 Miscellaneous
134 Protection from personal liability
(1) Any matter or thing done or omitted to be done by an enforcement
agency, an advisory committee, or a protected person does not, if the
matter or thing was done or omitted in good faith for the purpose of
executing any provision of this Act or any other law, subject a
protected person personally to any action, liability, claim or
demand.
(2) In this section, protected person means any of the following:
(a) the Minister,
(b) any member of the enforcement agency or of the staff of the
enforcement agency,
(c) an authorised officer,
(d) any person acting under the direction of an enforcement
agency,
(e) any member of an advisory committee,
(f) a person employed by the Crown to carry out analyses for the
purposes of this Act or a person carrying out analyses under
the supervision of such a person.
135 Exclusion of liability of the State and others
(1) This section applies to civil proceedings for damages or other
compensation brought against the State, the regulatory authority or
other enforcement agency or a protected person referred to in
section 134.
(2) Damages or other compensation is not payable in any such civil
proceedings to the extent that:
(a) the claim is made in connection with the handling, sale or
consumption of food, and
(b) the claim is based on alleged negligence or other breach of
duty (including statutory duty) arising because of the exercise
of, or the failure to exercise, any function under this Act.
(3) This section does not affect any entitlement to compensation
expressly conferred by this Act.
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Part 11 Miscellaneous
136 Disclosure of certain confidential information
(1) A person who has, in connection with the administration or
execution of this Act, obtained information relating to
manufacturing secrets or commercial secrets or confidential
processes must not disclose that information unless the disclosure is
made:
(a) with the consent of the person from whom the information
was obtained, or
(b) in connection with the administration or execution of this Act,
or
(c) for the purposes of any legal proceedings arising out of this
Act or of any report of any such proceedings, or
(d) in accordance with a requirement imposed by or under this
Act or any other law, or
(e) to a person administering or enforcing a law of another
jurisdiction that corresponds to this Act or any other law
prescribed by the regulations, or
(f) to the Commonwealth Food Authority, or
(g) to a law enforcement authority, or
(h) with other lawful excuse.
Maximum penalty: 500 penalty units.
(2) A person is not guilty of an offence under this section if the
information was publicly available at the time the disclosure
concerned was made.
137 Publication of names of offenders
(1) The regulatory authority may publish a notification under this
section in the Gazette or in a newspaper circulating in this State in
respect of any person who is convicted of an offence under this Act
or the regulations relating to the handling or sale of food or an
employee or agent of whom has been convicted of such an offence.
(2) The notification may only be published within 21 days after the
conviction unless an appeal is made against the conviction.
(3) If an appeal is made against the conviction, a notification under this
section must not be published unless a final order has been made on
appeal affirming the conviction, in which case, the notification may
only be published within 21 days of the final order being made.
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Miscellaneous Part 11
(4) A notification under this section may contain:
(a) the address of the relevant person's place of business, and
(b) the trade or company name under which the company trades,
if relevant, and
(c) a description of the nature of the offence, the decision of the
court, the penalty imposed or any forfeiture incurred, and
(d) such other information relating to the safety of the food
concerned as the regulatory authority thinks necessary.
(5) No liability is incurred by a person for publishing in good faith:
(a) a notification under this section, or
(b) a fair report or summary of such a notification.
138 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far
as the legislative power of the Parliament of New South Wales
permits, the Crown in all its other capacities.
139 Regulations
(1) The Governor may make regulations, not inconsistent with this Act,
for or with respect to any matter that by this Act is required or
permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to this Act, including the
following:
(a) requiring the preparation, implementation, maintenance and
monitoring of food safety programs for food businesses to
ensure that the provisions of this Act and the Food Standards
Code are complied with,
(b) fees or charges for the purposes of this Act, including (but not
limited to) fees or charges for the provision of information, or
for the carrying out of any inspection or analysis (whether or
not the inspection or analysis was requested or agreed to), or
in connection with the notification of the use of any food
business or the registration of any food business,
(c) fees for the making of applications under this Act,
(d) requirements for the notification by food businesses of
information relating to the conduct of those food businesses,
(e) regulating or prohibiting any activity relating to the handling
or sale of food.
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Clause 140 Food Bill 2003
Part 11 Miscellaneous
(2) A regulation may create an offence punishable by a penalty not
exceeding 25 penalty units.
(3) The regulations may apply, adopt or incorporate, whether wholly or
in part or with or without modifications, any standard, code (except
the Food Standards Code) or other document as in force from time
to time or as in force at a particular time.
140 Temporary emergency regulations modifying the Code
(1) Regulations may be made for the purposes of this section that
contain provisions that are in addition to, or in substitution for, one
or more of the provisions of the Food Standards Code as those
provisions of the Code apply in this State.
(2) A regulation made for the purposes of this section must not be made
unless the Minister has certified that such a regulation is necessary
as it relates to an issue of public health and safety.
(3) A provision of a regulation made for the purposes of this section
does not continue in force:
(a) except as provided by paragraph (b), for a period that is more
than 12 months, or
(b) if the provision is the same in substance as a provision of a
regulation that was previously in force under this Act, for a
period that, when added to the period for which that previous
provision was in force, is more than 12 months.
141 Other regulations modifying the Code
(1) Regulations may be made for the purposes of this section that
contain provisions that are in addition to, or in substitution for, one
or more of the provisions of the Food Standards Code as those
provisions of the Code apply in this State.
(2) A regulation made for the purposes of this section must not be made
unless the Minister has certified that such a regulation does not have
a significant impact on the implementation and enforcement of
uniform food laws in Australia.
(3) A regulation made for the purposes of this section may be made only
with the approval of the Premier.
142 Repeals
The Food Act 1989 and the Food Regulation 2001 are repealed.
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Miscellaneous Part 11
143 Amendment of other Acts
Each Act specified in Schedule 1 is amended as set out in that
Schedule.
144 Savings, transitional and other provisions
Schedule 2 has effect.
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Food Bill 2003
Schedule 1 Amendment of other Acts
Schedule 1 Amendment of other Acts
(Section 143)
1.1 Contaminated Land Management Act 1997 No 140
Section 112 Regulations
Omit "Section 88 of the Food Act 1989" from section 112 (5).
Insert instead "Section 12 of the Food Act 2003".
1.2 Fair Trading Act 1987 No 68
Schedules 1 and 2
Omit "Food Act 1989" wherever occurring.
Insert instead "Food Act 2003".
1.3 Fluoridation of Public Water Supplies Act 1957 No 58
Section 8 Proof of certificate of analyst
Omit "any person appointed by the Director-General of the Department of
Health as an analyst under the Food Act 1989" from section 8 (3).
Insert instead "any person who is an approved analyst within the meaning
of the Food Act 2003".
1.4 Food Production (Safety) Act 1998 No 128
[1] Sections 3 (1) (definition of "relevant Ministers"), 6 and 19 (4)
Omit "Food Act 1989" wherever occurring.
Insert instead "Food Act 2003".
[2] Section 14 Authorised officers
Omit "any person appointed under section 79 (1) of the Food Act 1989".
Insert instead "an authorised officer within the meaning of the Food Act
2003".
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Food Bill 2003
Amendment of other Acts Schedule 1
1.5 Local Government Act 1993 No 30
[1] Section 22 Other functions
Omit "Food Act 1989" from the note to that section.
Insert instead "Food Act 2003".
[2] Section 124 Orders
Omit the matter relating to the Food Act 1989 from the note to the section.
Insert instead:
Food Act 2003 (by delegation) improvement notice or prohibition order
1.6 Protection of the Environment Operations Act 1997 No 156
Section 323 Regulations
Omit "Section 88 of the Food Act 1989" from section 323 (6).
Insert instead "Section 12 of the Food Act 2003".
1.7 Search Warrants Act 1985 No 37
Section 10 Definitions
Omit "section 18 of the Food Act 1989" from the definition of search
warrant.
Insert instead "section 39 of the Food Act 2003".
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Food Bill 2003
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
(Section 144)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) If such a regulation so provides, it has effect despite any provision
of this Act.
(3) Any such provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date.
(4) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 Definition
In this Part, former Act means the Food Act 1989.
3 Inspectors
A person appointed as an inspector for the purposes of the former
Act and holding that position immediately before the
commencement of section 114 of this Act is taken to have been
appointed as an authorised officer under that section and the
appointment is subject to the same conditions as were imposed on
the original appointment.
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Food Bill 2003
Savings, transitional and other provisions Schedule 2
4 Analysts and certificates
(1) A person appointed as an analyst for the purposes of the former Act
and holding that position immediately before the commencement of
section 81 of this Act is taken to have been approved as an analyst
under that section and the approval is subject to the same conditions
as were imposed on the original appointment.
(2) A certificate given under section 39 of the former Act by an analyst
is, for the purposes of any proceedings under this Act, taken to be a
certificate given under section 74 of this Act.
5 Orders and clean-up notices
An order or clean-up notice made under Part 4 of the former Act
before its repeal by this Act continues to have effect, and may be
enforced, as if that Act had not been repealed.
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