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), as follows:

(a) to extend the powers of the Food Authority to publish information about
offences under the Principal Act relating to the handling and sale of food,
including by:

        (i) permitting the Food Authority to keep a public register of offences
committed under the Principal Act relating to the handling and sale of
food, and
        (ii) permitting the Food Authority to name in that register any person found
guilty by a court of such an offence or whose employee or agent is found
guilty of such an offence (whether or not a conviction is entered
following the guilty finding),

(b) to give the Food Authority power to publish information about penalty notices
issued for alleged offences under the Principal Act relating to the handling and
sale of food, including by:

        (i) permitting the Food Authority to keep a public register of penalty
notices served for such offences, and
        (ii) permitting the Food Authority, subject to certain limitations, to name in
that register persons served with such penalty notices,

(c) to permit the disclosure of personal information by various public sector
agencies for the purpose of enabling the Food Authority to exercise its new
functions,

(d) to confer protection from liability, including liability in defamation, in respect
of the disclosure of such information,

(e) to provide for the payment of fines and penalties recovered by the Food
Authority into the Food Authority Fund.

The Bill also makes other minor and consequential amendments, including to another
Act.

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 is a formal provision that gives effect to the consequential amendment to
the Fines Act 1996 set out in Schedule 2.

Clause 5 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 Amendment of Food Act 2003
Disclosure of information about offences and alleged offences
Currently, section 137 of the Principal Act enables the Food Authority to publish
information about persons convicted of offences under that Act or the regulations.

Schedule 1 [4] inserts proposed Part 10A (proposed sections 133–133H) into the
Principal Act to make new provision with respect to the disclosure of information
about offences and penalty notices issued for alleged offences under that Act through
the keeping of a register of offences and a register of penalty notices. Schedule 1 [6]
therefore repeals section 137.

Register of offences
Proposed section 133 enables the Food Authority to keep a public register of
information about offences under the Principal Act or the regulations relating to the
handling or sale of food (the register of offences). The register may also include
information in relation to offences where a court has made a finding of guilt but not
recorded a conviction under section 10 of the Crimes (Sentencing Procedure) Act
1999. The information that may be published on the register of offences includes the
name of the convicted person and his or her employer or principal, the name and
address of the place of business where the offence occurred, a description of the
nature and circumstances of the offence, the decision of the court and the penalty
imposed. This information may not be published until after a final order has been
made in respect of any appeal for the offence. The register may be kept in such form
as the Food Authority considers appropriate.

Register of penalty notices
Proposed section 133A enables the Food Authority to keep a public register of
information about penalty notices issued for alleged offences under the Principal Act
or the regulations relating to the handling or sale of food (the register of penalty
notices). The information that may be published on the register of penalty notices
includes the name of the person served with the penalty notice, the name and address
of the place of business where the alleged offence occurred, a description of the
nature and circumstances of the alleged offence, certain penalty notice information,
the enforcement agency or other body responsible for issuing the penalty notice and
the status of the penalty notice.

Information must not be published on the register of penalty notices unless:

(a) the amount payable under the penalty notice has been fully or partly paid, or

(b) a penalty notice enforcement order has been issued in respect of the penalty
notice, or

(c) at least 70 days has elapsed since the penalty notice was served and the penalty
notice is unresolved (the circumstances in which a penalty notice ceases to be
unresolved include where the person served makes an election to have the
matter dealt with by a court).

The register may be kept in such form as the Food Authority considers appropriate.

Other provisions relating to registers
Proposed section 133B provides that the registers are to be made available for public
inspection on an internet website of the Food Authority. Information on a register
may also be made available to the public in such other manner as the Food Authority
considers appropriate, including by publication in the Gazette or in a newspaper
circulating in New South Wales.

Proposed section 133C provides that a register may be corrected by the Food
Authority on its own initiative or on application by an interested person.

Proposed section 133D provides that information may be removed from a register by
the Food Authority on its own initiative or on application by an interested person and
provides for the circumstances in which the Food Authority must remove
information from a register. This includes, in relation to the register of offences,
where the Food Authority is satisfied that the relevant conviction has been quashed
or annulled, an appeal has been made, or a period of 2 years has elapsed since the
Food Authority was first authorised to publish the information on the register.

In relation to the register of penalty notices, the Food Authority must remove
information from the register if:

(a) the penalty notice was not properly served, or

(b) a person has elected to have the matter dealt with by a court, or

(c) a decision has been made not to enforce the penalty notice, or

(d) a penalty reminder notice or penalty notice enforcement order in respect of the
penalty notice has been withdrawn or annulled, or

(e) 12 months has elapsed since the Food Authority was first authorised to publish
information about that penalty notice on the register.

The Food Authority may also remove information from either register if satisfied it
is appropriate in the circumstances to do so.

Proposed section 133E provides for the addition of information to a register where a
business named on the register is sold or otherwise disposed of after the date on
which an offence is committed or a penalty notice is served in relation to the conduct
of that business.

Proposed section 133F permits a person to make an application to the Food Authority
requesting the Food Authority to make changes to any information on a register.

Such applications may be made only by persons to whom the information relates, or
if the information relates to a business or company, by persons who own or have an
interest in the business or company. A decision by the Food Authority in respect of
an application is reviewable by the Administrative Decisions Tribunal.

Proposed section 133G provides for protection from liability, including liability in
defamation, for the State and other persons and bodies in respect of anything done,
or omitted to be done, in good faith in connection with the keeping of a register or
the publication of information contained on a register. Furthermore, no liability will
be incurred by a person for publishing in good faith any information contained on a
register or publishing a fair report or summary of such information. Schedule 1 [5]
makes a consequential amendment.

Proposed section 133H enables the Food Authority and other public sector agencies
to disclose personal information for the purpose of enabling the Food Authority to
exercise its functions under new Part 10A. In particular, the proposed section:

(a) allows the Food Authority to disclose information despite any prohibition in,
or the need to comply with, the Privacy and Personal Information Protection
Act 1998, and

(b) allows the Food Authority and other public sector agencies to disclose
information in relation to a person without the consent of that person
(including allowing for disclosure by the State Debt Recovery Office or any
person engaged in the administration of the Fines Act 1996).

Payment of penalties and fines into Food Authority Fund
Schedule 1 [3] provides that monetary penalties or fines imposed under the Principal
Act and the regulations under that Act and recovered in proceedings instituted by the
Food Authority, including through the issue of penalty notices, are to be paid into the
Food Authority Fund, up to a maximum amount of $250,000. Regulations may be
made (with the approval of the Treasurer) that provide for a different maximum
amount. Any excess monies are to be paid into the Consolidated Fund.

Other amendments
Schedule 1 [1] inserts new definitions of Food Authority Fund, register of offences
and register of penalty notices consequent on the enactment of the proposed Act.

Schedule 1 [2] makes an amendment by way of statute law revision.

Schedule 1 [7] enables savings and transitional regulations to be made as a
consequence of the proposed Act.

Schedule 1 [8] inserts savings and transitional provisions as a consequence of the
enactment of the proposed Act. These include provisions to make it clear that:

(a) payments into the Food Authority Fund under the new provisions are to be
made only from monetary penalties and fines recovered on or after the
commencement of those provisions (regardless of when the relevant
proceedings were instituted), and

(b) the register of offences is to include only information about offences
committed on or after the commencement of the new provisions, although the
Food Authority may continue to exercise its functions under section 137 (as in
force before its repeal by Schedule 1 [6]) in respect of offences committed
before that commencement, and

(c) the register of penalty notices is to include only information about penalty
notices served on or after the commencement of the new provisions.

Schedule 2 Consequential amendment of Fines Act
1996
Schedule 2 contains an amendment to the Fines Act 1996 consequent on the
amendments to the Principal Act that authorise the disclosure of personal
information by the State Debt Recovery Office to the Food Authority.

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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