FOOD ACT 2003 - SCHEDULE 2

FOOD ACT 2003 - SCHEDULE 2

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

Food Legislation Amendment Act 2004

Food Amendment Act 2007

Food Amendment (Public Information on Offences) Act 2008

Food Amendment (Food Safety Supervisors) Act 2009

Food Amendment Act 2010

(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.

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the former Act before its repeal by this Act continues to have effect, and may be enforced, as if that Act had not been repealed.

Part 3 - Provisions consequent on enactment of Food Legislation Amendment Act 2004

6 Definitions

In this Part,
"former Act" means the Food Production (Safety) Act 1998 .

7 Food Authority

The Food Authority is a continuation of, and the same legal entity as, Safe Food Production NSW constituted under section 8 of the former Act.

8 Safe Food Production Fund

The Fund established under section 55 of the former Act is taken to be the Fund required to be established under section 117A of this Act.

9 Safe Food Production Advisory Committee

(1) The Safe Food Production Advisory Committee established under the former Act is dissolved.

(2) The members of the Safe Food Production Advisory Committee holding office immediately before the commencement of this clause--

(a) cease to hold office as such on that commencement, and

(b) are not entitled to any compensation for ceasing to hold office because of the operation of this clause.

10 Chief Executive Officer of Safe Food

The person holding office as the Chief Executive Officer of Safe Food Production NSW immediately before the commencement of this clause--

(a) ceases to hold that office on that commencement, and

(b) is not entitled to any compensation for ceasing to hold that office because of the operation of this clause, and

(c) is taken to have been appointed to the office of the Director-General of the NSW Food Authority on the same terms and conditions specified in the person's contract of employment as Chief Executive Officer of Safe Food Production NSW and for the remainder of the person's term of office as Chief Executive Officer, and

(d) despite paragraph (c), may be removed from office in accordance with the Public Sector Employment and Management Act 2002 .

11 Transfer of certain staff of Department of Health

(1) The Minister may direct, by order in writing, that any specified members of staff of the Department of Health be transferred to the Food Authority.

(2) An order may be made under subclause (1) only with the concurrence of the Minister for Health.

(3) Each person transferred under subclause (1) becomes a member of staff of the Food Authority and continues (until other provision is duly made) to be employed in accordance with the awards, agreements and determinations applying, immediately before the transfer, to the person as a member of staff of the Department of Health.

(4) An order may only be made under this clause within the period of 2 years after the commencement of this clause.

12 Transfer of certain staff of area health services

(1) The Minister may direct, by one or more orders in writing, that any specified members of staff of an area health service (within the meaning of the Health Services Act 1997 ) be transferred to the Food Authority.

(2) An order may be made under subclause (1) only with the concurrence of the Minister for Health.

(3) Each person transferred under subclause (1) becomes a member of staff of the Food Authority and continues (until other provision is duly made) to be employed in accordance with arrangements--

(a) agreed to by the Department of Health, the Public Employment Office, the Public Service Association and the Health Services Union, and

(b) set out in the order made under subclause (1) transferring the person.

(4) An order may only be made under this clause within the period of 2 years after the commencement of this clause.

13 Authorised officers

Despite clause 3 of this Schedule, a person taken to be appointed as an authorised officer by operation of that clause because the person was appointed as an inspector under the Food Act 1989 by the Director-General of the Department of Health, ceases to hold the office of authorised officer on the commencement of this clause.

14 Orders and improvement notices

An order made under Division 3 of Part 5 of the former Act, or an improvement notice or prohibition order made under Division 4 of that Part, and in force immediately before the commencement of this clause continues to have effect, and may be enforced, as if those provisions of that Act had not been repealed.

15 Regulations

(1) A regulation under the former Act that was in force immediately before the repeal of a provision of the former Act under which the regulation was made is taken to have been made under this Act and may be amended or repealed accordingly.

(2) For the purposes of the Subordinate Legislation Act 1989 , a regulation referred to in subclause (1) is taken to have been made on the commencement of this subclause.

(3) Until the commencement of sections 93 and 96, a food safety scheme may make provision in relation to the preparation, implementation, maintenance, monitoring, certification and auditing of food safety programs that is inconsistent with those sections.

16 Orders of Minister in relation to assets of former authority

(1) The Minister may give the Food Authority a direction, in writing, that specified assets of a former authority transferred to the Food Authority by the operation of clause 4 of Schedule 5 to the former Act are to be used for specified purposes only.

(2) Before giving a direction under subclause (1), the Minister must consult with--

(a) the New South Wales Dairy Industry Conference, if the former authority was the New South Wales Dairy Corporation, or

(b) the consultative body established under section 102 (2) (z) for the meat industry, if the former authority was the New South Wales Meat Industry Authority.

(3) In this clause,
"former authority" means--

(a) the New South Wales Dairy Corporation dissolved under clause 3 (1) of Schedule 5 to the former Act, and

(b) the New South Wales Meat Industry Authority dissolved under clause 3 (2) of Schedule 5 to the former Act.

17 Private and subsidiary corporations

(1) A private corporation established, or an interest in a private corporation acquired, under section 15A of the former Act is taken to have been established or acquired by the Food Authority under section 109C of this Act.

(2) An approval given under section 15B (2) of the former Act, and in force immediately before the repeal of that provision, is taken to have been given to the Food Authority under section 109D (2) of this Act.

(3) A delegation in force under section 15C of the former Act immediately before the repeal of that provision is taken to have been given by the Food Authority under section 109E of this Act and continues to have effect as if it had been given under this Act.

(4) Subclause (3) applies only to the extent to which a delegation relates to a function that is of the same kind as a function that the Food Authority has under the Dairy Industry Act 2000 .

Part 4 - Provisions consequent on enactment of Food Amendment Act 2007

18 Existing enforcement agencies

(1) Despite the amendment of the definition of
"enforcement agency" by the Food Amendment Act 2007 , a relevant body that, immediately before the commencement of that amendment, was prescribed by the regulations as an enforcement agency is taken to continue from that commencement to be an enforcement agency for the purposes of that definition until--

(a) the expiration of the period of 18 months after that commencement, or

(b) the appointment of the relevant body as an enforcement agency under section 111, or

(c) the publication in the Gazette of an order made by the Food Authority declaring that the relevant body is no longer an enforcement agency,

whichever occurs first.

(2) Nothing in this clause prevents a relevant body who ceases to be an enforcement agency by operation of this clause from subsequently being appointed as an enforcement agency under section 111.

(3) In this clause,
"relevant body" has the same meaning as in Division 2 of Part 9.

19 Pending proceedings by enforcement agencies

(1) This clause applies to an enforcement agency or former enforcement agency on which a function was conferred or imposed under this Act (an
"original function" ), whether before or after the commencement of this clause, and that ceases to be authorised to exercise the function (including because of ceasing to be an enforcement agency).

(2) If an enforcement agency or former enforcement agency has exercised an original function before ceasing to be authorised to do so, the agency may, in accordance with this Act, do any of the following--

(a) commence or continue any proceedings, or take any action, in connection with that exercise of the original function,

(b) without limiting paragraph (a), if the exercise of the original function involved the issuing of an improvement notice under Part 5 of the Act, take any action under that Part to enforce compliance with the improvement notice, including issuing a prohibition order.

(3) In this clause--

(a) a reference to an
"enforcement agency" includes a reference to an authorised officer of an enforcement agency, and

(b) a reference to a
"former enforcement agency" includes a reference to a former authorised officer of an enforcement agency.

(4) Nothing in this clause limits the operation of section 30 of the Interpretation Act 1987 .

Part 5 - Provisions consequent on enactment of Food Amendment (Public Information on Offences) Act 2008

20 Payment of penalties and fines to Food Authority Fund

Section 117D, as inserted by the Food Amendment (Public Information on Offences) Act 2008 , applies to monetary penalties and fines recovered on or after the commencement of that section (regardless of when the relevant proceedings were instituted).

21 Register of offences

(1) New section 133 applies only to offences committed on or after the commencement of that section.

(2) Section 137 (as in force immediately before its repeal by the Food Amendment (Public Information on Offences) Act 2008 ) continues to apply in relation to any conviction for an offence committed before the commencement of new section 133, as if section 137 had not been repealed. Accordingly, the Food Authority may continue to exercise its functions under section 137 in respect of offences committed before the commencement of new section 133.

(3) In this clause--


"new section 133" means section 133, as inserted by the Food Amendment (Public Information on Offences) Act 2008 .

22 Register of penalty notices

Section 133A (as inserted by the Food Amendment (Public Information on Offences) Act 2008 ) applies only to penalty notices served on or after the commencement of that section.

Part 6 - Provisions consequent on enactment of Food Amendment (Food Safety Supervisors) Act 2009

23 Application of new offences relating to food safety supervisors

(1) This clause applies to provisions of Division 3 of Part 8 as inserted by the Food Amendment (Food Safety Supervisors) Act 2009 .

(2) In this clause, the
"prescribed day" , in relation to a provision of Division 3 of Part 8, means the day occurring 12 months after the commencement of the provision.

(3) A person does not commit an offence against a provision of Division 3 of Part 8 until on or after the prescribed day.

(4) Section 106C applies only to the processing and sale by retail of food occurring on or after the prescribed day.

(5) Section 106D applies only to the processing of food occurring on or after the prescribed day.

(6) Despite section 106E (2) (b), the notice of the appointment of a food safety supervisor required to be given under that section may be given within 7 days after the prescribed day if the appointment occurred before the prescribed day.

Part 7 - Provisions consequent on enactment of Public Sector Restructure (Miscellaneous Acts Amendments) Act 2009

24 Construction of references to Director-General of Food Authority

A reference in any Act (other than this Act) or statutory instrument, or any other instrument, or any contract or agreement, to the Director-General of the Food Authority is to be construed as a reference to the Chief Executive Officer of the Food Authority.

Part 8 - Provisions consequent on enactment of Food Amendment Act 2010

25 Application of new offences relating to display of nutritional information by standard food outlets

A person does not commit an offence against section 106N or 106O until on or after 1 February 2012.