Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Food Act 2003 (the Principal Act):

(a) to provide a scheme for the appointment of local councils and the
Director-General of the Department of Environment and Climate Change (in
relation to Kosciuszko National Park) as enforcement agencies under that Act
(currently they are prescribed by the regulations as enforcement agencies
without the requirement for prior consultation), and

(b) to include consultation requirements in that scheme to enable local councils
and the Director-General of the Department of Environment and Climate
Change to make submissions on the types of functions under that Act that they
have adequate resources to exercise, and

(c) to establish a Food Regulation Forum to provide advice to the Food Authority
primarily in relation to matters affecting other enforcement agencies, and

(d) to enable the imposition of fees for the issuing of improvement notices under
that Act to food businesses, and

(e) to make further provision in relation to the imposition and setting of fees and
administration charges for functions carried out by enforcement agencies
under that Act, and

(f) to enable the transfer of information between enforcement agencies and
certain government agencies carrying out functions in respect of public health.

The Bill also makes other amendments to the Food Act 2003 of a minor or
consequential nature or by way of statute law revision.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Food Act
2003 set out in Schedule 1.

Clause 4 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendments
Appointment of enforcement agencies
The Principal Act contains various functions to be carried out by enforcement
agencies, such as the inspection of food businesses, the issue of improvement notices
for food businesses and the issue of prohibition orders preventing the carrying on of
a food business in certain circumstances. Currently, an enforcement agency is
defined in the Principal Act as the Food Authority and persons or bodies prescribed
by the regulations. The regulations prescribe all local councils, the Director-General
of the Department of Environment and Climate Change in respect of Kosciuszko
National Park and the Lord Howe Island Board in respect of Lord Howe Island.

Schedule 1 [1] amends the definition of enforcement agency in section 4 of the
Principal Act so that it will be defined as the Food Authority, a relevant body
appointed as an enforcement agency under the proposed new sections of the Principal
Act referred to below or any other body that is prescribed by the regulations.

Schedule 1 [11] omits sections 110 and 111 of the Principal Act relating to the
functions of enforcement agencies and inserts instead the following proposed
sections:

Proposed section 110 defines certain terms used in the proposed new
sections, including relevant body which is defined as a local council, or the
Director-General of the Department of Environment and Climate Change (but
only in respect of Kosciuszko National Park).

Proposed section 111 enables the Food Authority to appoint a relevant body
as an enforcement agency for the purposes of the Principal Act. The Food
Authority must first consult with the relevant body and consider
representations made by the relevant body and the resources and skills that
will be available to the relevant body to carry out the functions of an
enforcement agency that are proposed to be conferred or imposed on it. If the
relevant body concerned is a local council, the Food Authority is also to
consider whether another local council would be prepared to exercise
functions in the area concerned and that other local council’s available
resources and skills.

Proposed section 111A enables the Food Authority to vary or revoke the
appointment of a relevant body as an enforcement agency.

Proposed section 111B enables the Food Authority to impose conditions or
limitations on the exercise of functions by any enforcement agency (including
an enforcement agency that is not a relevant body). The proposed section is
similar to existing section 111.

Proposed section 111C enables the Food Authority to issue guidelines in
relation to various matters relevant to enforcement agencies, including the
different categories of functions that may be exercised by enforcement
agencies and the making of representations to the Food Authority by a relevant
body as to its proposed appointment as an enforcement agency.

Proposed section 111D makes it clear that it is the duty of an enforcement
agency to exercise the functions conferred or imposed on it, or delegated to it,
under the Principal Act.

Schedule 1 [9], [10], [12] and [14] contain consequential amendments.

Schedule 1 [22] and [23] contain savings and transitional provisions.

Food Regulation Forum
Schedule 1 [15] inserts proposed Division 3A of Part 9 into the Principal Act
consisting of proposed sections 115A and 115B.

Proposed section 115A establishes the Food Regulation Forum which
consists of the Director-General of the Food Authority (or a nominee of the
Director-General), 2 members of staff of the Food Authority and 9 other
persons appointed by the Minister, on the nomination of or with the
concurrence of specified persons or bodies.

Proposed section 115B specifies the functions of the Food Regulation Forum
which include providing advice to the Food Authority on certain matters
relating to the carrying out of functions by other enforcement agencies.

Other amendments relating to the carrying out of functions by
enforcement agencies other than the Food Authority
Schedule 1 [13] inserts proposed section 113A into the Principal Act which requires
the Food Authority to keep a record of the appointment of enforcement agencies, any
limitations or conditions relating to their appointment and any variation or revocation
of their appointment and to publish those records on its website.

Schedule 1 [16] amends section 117A of the Principal Act to enable the Food
Authority Fund to be used, in cases determined by the Food Authority, to fund the
exercise of functions under that Act by another enforcement agency.

Schedule 1 [17] substitutes section 136A of the Principal Act. That section currently
allows the exchange of information between the Food Authority and the Department
of Health and public health organisations to enable the exercise of certain functions.

The proposed section enables a similar exchange of information between those
organisations and other enforcement agencies under the Principal Act as well. The
exchange of information is limited to circumstances where it is necessary to enable
those persons and bodies to carry out functions under the Principal Act or functions
under the Public Health Act 1991. An example would be where there is an outbreak
of foodborne illness reported to the Food Authority by the Department of Health and
that Authority reports the details to a local enforcement agency to enable the tracking
of the source of the illness.

Fees and charges
Schedule 1 [4] inserts proposed section 66AA into the Principal Act to require a
person who is issued an improvement notice by an authorised officer of an
enforcement agency to pay a fee prescribed by the regulations in relation to the issue
of the notice. It will be an offence not to pay the fee required. Section 57 of the
Principal Act currently allows an authorised officer to issue an improvement notice
to the proprietor of a food business in specified circumstances, for example, where
the officer has reasonable grounds to believe that the premises of the food business
are unclean or otherwise unfit.

Schedule 1 [6] amends section 108 of the Principal Act to include as a function of
the Food Authority the making of recommendations as to maximum fees to be
charged by local councils for inspections of food businesses that are not required to
be licensed under the Principal Act. Inspections of licensed food businesses are
currently carried out by the Food Authority. Local councils have the power to charge
fees under the Local Government Act 1993, including fees relating to functions that
they carry out under other Acts.

Schedule 1 [21] amends section 139 of the Principal Act to enable regulations to be
made with respect to annual administration charges for the exercise by all
enforcement agencies, or any class of enforcement agency, of all or specified
functions under the Principal Act in relation to food businesses that are not required
to be licensed.

Other amendments
Schedule 1 [5] amends section 102 of the Principal Act to remove provisions that
provide that a regulation establishing a food safety scheme does not take effect until
the time for disallowance of the regulation by Parliament has expired or, if there is a
motion for disallowance of the regulation, the motion has lapsed or been withdrawn
or defeated.

Schedule 1 [2], [3], [7], [8] and [18]–[20] contain amendments to the Principal Act
by way of statute law revision.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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