FOOD BILL 2003 Second Reading Speech

Northern Territory Second Reading Speeches

FOOD BILL 2003

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

FOOD BILL
(Serial 197)

Bill presented and read a first time.

Mrs AAGAARD (Health and Community Services): Madam Speaker, I move that the bill now be read a second time.

We have all heard the words: It must have been something I ate. In Australia, every year, more than 2 million people get sick from the food they eat, which makes food safety a high priority for any government. The Northern Territory is fortunate in that we have a good history when it comes to safe food. However, that does not mean we can afford to be complacent. The Northern Territory government is acting to make food safer. One of the most important parts of this approach is the implementation of a new model food act.

The existing Northern Territory Food Act 1986 was based on a model food act adopted by Australian state and territory health ministers in 1980. The intended uniform adoption was not fully achieved and led to substantial differences in state and territory legislation. In 1997, the Commonwealth Food Regulation Review, the Blair Review, examined existing food regulation in Australia. The Blair Review was a whole-of-government, paddock to plate review of food regulation and regulatory systems. The key objectives of the review were to, whilst protecting public health, reduce the regulatory burden on the food sector, and examine those regulations that restricted competition, and to improve the clarity, certainty and efficiency of food regulation. The findings of the Blair Review were released in 1998. The review found the current regulatory framework in Australia to be complex and fragmented. The report suggested a need for governments to implement an integrated and coordinated national food regulatory system through improved partnership arrangements and the adoption of nationally consistent guiding principles.

In 1999, state and territory governments endorsed the final report of the Blair Food Regulation Review. The review of the food acts and the Blair Review were wide ranging and included input from governments, industry groups and individuals and culminated in the signing of an intergovernmental agreement, an IGA, on food regulation by all states and territories and the Commonwealth government in November 2000. Under the intergovernmental agreement, each state and territory agreed to adopt Annexe A of the Model Food Act. It deals with definitions, offences and defences relating to food safety and the adoption of the food standards code. Adoption of the provisions contained within Annexe B of the Model Food Act is discretionary. Annexe B of the Model Food Act includes issues such as food business registration, food safety programs and auditing arrangements, improvement notices and prohibition orders.

The Food Bill 2003 contains the entire Annexe A provisions, as agreed under the IGA, and a number of provisions drawn from Annexe B of the Model Food Act. The provisions of the Food Bill 2003 will deliver to industry and consumers on this government’s commitment to the protection of public health and safety; protect consumers by providing uniform and effective food recall powers; improve information and resource sharing between government agencies; and reduce business compliance costs by facilitating uniform interpretation enforcement of the food standards code.

The Food Bill 2003 repeals the Food Act 1986 and introduces legislation consistent with the Annexe A provisions as well as administrative arrangements consistent with Annexe B. These measures will improve the food regulatory framework in the Northern Territory. Annexe A of the Model Food Bill has four main components: definitions; offences; defences; and emergency powers. The bill clearly sets out the objects of the legislation, primarily to ensure that food for sale is safe and suitable for human consumption and to prevent misleading conduct relating to the sale of food.

The bill contains a number of definitions. These definitions are in the same terms as Annexe A of the Model Food Bill. The definition of food is central to determining the scope of the bill. For the purposes of this legislation, food is anything which is presented or intended for human consumption. This includes live plants and animals where such plants or animals are intended for human consumption. However, the definition of food excludes substances regulated by the Therapeutic Goods Administration.

The definition of ‘sell’ is necessarily very broad. This provision clarifies that food served as part of a contract or to an inmate, patient or similar, will be taken as having been sold. The definition also makes it clear that food that is offered as a prize or reward or given away for the purposes of advertisement of furtherance of trade or commerce is deemed to have been exposed for sale or sold.

‘Food business’ has been defined to include any activity, enterprise or business that involves handling of food for sale or the sale of food, regardless of whether it is of a commercial, charitable or community nature or whether it involves handling or selling food on one occasion only.

Clause 9 expressly exempts primary food production from this definition. Special arrangements will apply to charity type events. Unsafe and unsuitable food have also been defined. These terms are primarily used in relation to establishing the offence provisions of the Food Bill. Food is considered unsafe at a particular time if it would be likely to cause physical harm to a person who might consume it, assuming that the person consumed it according to its reasonable use.

Clause 10 of the bill clarifies that food for sale is not unsafe merely because its inherent nature causes adverse reaction in people with allergies or sensitivities that are not common to the majority. For example, peanuts may cause a serious allergic reaction in some individuals. However, they are not considered unsafe under this clause, as the majority of the population do not suffer this reaction.

On the other hand, food is considered unsuitable if it is damaged, deteriorated or perished to an extent that affects its reasonable use or if it is the product of a diseased animal or an animal that has died otherwise than by slaughter or contains a biological or chemical agent or if it contains other matter or substance that is foreign to the nature of the food.
Clause 11 clarifies that agricultural and veterinary chemicals, naturally occurring metals and non-metals do not make a food unsuitable if those substances are permitted in the Food Standards Code. It allows for animals to be declared safe for human consumption under another act, for example the Meat Industries Act.

The second component of the Food Bill relates to offences. It contains a number of offences that apply, regardless of whether or not the food is intended for sale in the Northern Territory or outside of it.

Clauses 23 and 28 clarify the situation in relation to food that is intended for export and food that is sold outside the Northern Territory respectively. The serious offences relating to food relate to those instances where the offensive action was undertaken knowing that the behaviour was illegal. These offences are state of mind provisions requiring a finding of intent, negligence or knowledge before an offence can be proved.

The specific serious offences for the supplier of food or employers of a supplier are handling food intended for sale in a manner that the person knows will render the food unsafe; selling food that the person knows to be unsafe; falsely describing food for sale specifically knowing that the food is falsely described and the false description will or is likely to cause physical harm to a consumer who relies on that description; and selling food that is falsely described and that false description will or is likely to cause physical harm to a consumer who relies on that description.

For these serious offences, the penalties are significant - 1000 penalty units for an individual or 5000 penalty units for a corporation. For individuals, there is also the potential to be sentenced to imprisonment for two years instead of or in addition to the financial penalty. Offences have been created for the handling and sale of food that is not safe or suitable, and for engaging in conduct that is or is likely to be misleading in relation to the advertising, labelling or packaging of food for sale.

Consumers are further protected by creating an offence for selling food that is not of the nature or substance demanded by the purchaser. Various offences are included for failure to comply with the Food Standards Code in the absence of any other specific penalty.

The Food Bill also outlines a number of defences. In any proceedings, it is a defence if 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 that person’s control.

The bill also draws upon Annex A of the Model Food Act to address the issue of emergency powers. Such powers are conferred to the Chief Health Officer, but can only be exercised where necessary to prevent or mitigate a serious danger to public health. The powers allow the Chief Health Officer to prohibit production of food, recall food, require publication of warnings that a type of food is not safe, direct that a type of food be impounded, isolated or destroyed. Failure to comply with an emergency order is an offence.

The remaining parts of the bill have been drawn from the Annex B provisions of the Model Food Act, and update existing regulatory arrangements for the Northern Territory. The Food Bill confirms on the Chief Health Officers prime responsibility for ensuring compliance with the provisions of the act. However, while accepting prime responsibility for the enforcement and administration of the act, the Chief Health Officer is able to assign responsibility to other enforcement agencies where it is appropriate to do so. The Chief Health Officer is unable to impose a condition or limitation to an enforcement agency without first consulting that agency.

The administrative arrangements may result in enforcement being carried out by different agencies, but in all cases, enforcement will be carried out according to conditions specified by the Chief Health Officer. Agencies which carry out powers and functions of this act remain accountable to the Chief Health Officer. Enforcement agencies will be able to appoint authorised officers, who will be issued with an identity card. Authorised officers are able to take a range of actions to enable them to efficiently enforce the provisions of the act. An authorised officer will be able to enter and inspect any premises, at a reasonable time, that they reasonably believe are used in connection with the handling of any food intended for sale, the sale of food, or a food transport vehicle. The authorised officer may enter and inspect, examine, open, obtain samples, examine records or documents, stop and detain, take photographs and/or measurements and require a person to provide information or answer questions.

An important restriction is that an authorised officer is not empowered to enter any part of premises that are used solely for residential purposes, except with consent or under the authority of a search warrant. It will be an offence to fail to comply with the requirements of an authorised officer.

The bill also establishes procedures in relation to items that have been seized. These procedures deal with the place of detention, notification requirements, circumstances for return and liability for the costs or storage, destruction and disposal of forfeited items and payment of compensation in certain circumstances.

The Food Bill requires all food businesses to register their business with the Chief Health Officer. The registration of food businesses allows an enforcement agency to identify the inherent risks of a food business. The enforcement agency is then able to establish a number of appropriate responses, ranging from the exchange of food safety information to a more comprehensive inspection regime. Food business registration also provides enforcement agencies with information to expedite food recalls, allows for better controlling of sources of food-borne illness, and provides better information to respond to complaints more effectively.

While the registration of food businesses will be compulsory, registration fees will not be applied and a streamlined registration process will be introduced. In addition, it is not intended that the registration system will duplicate any existing registration requirements. This means that Eating Houses, who currently pay a registration fee under the Public Health Act will, following the repeal of that act, no longer be required to pay a fee for registration as a food business.

The Chief Health Officer may, under section 32 of the act, exempt certain food businesses from the requirement to be registered. It is anticipated that charities and low risk ad hoc events, such as sausage sizzles, will be exempt from registration. The Chief Health Officer will prepare a number of food business categories for exemption which will be notified in the Government Gazette. These categories will be the basis of widespread consultation. A range of national food safety guidelines will inform the Chief Health Officer in this task.

There has already been considerable consultation in the preparation of the Food Bill. Nevertheless, further information and assistance will be provided by enforcement agencies to food businesses and community groups to enhance their understanding of their obligations under this legislation.

The Chief Health Officer is able to impose conditions on the registration of a business. Businesses will be required to renew their registration annually. The Chief Health Officer may cancel the registration of a food business if the proprietor of a registered food business contravenes or fails to comply with the conditions of registration, or is found guilty of an offence against the act. The proprietor has the right to have the decision reviewed.

Sampling of food is a critical part of the enforcement powers of authorised officers. The bill sets out the procedural requirements for the process of obtaining, paying for and sampling of food. Samples are generally taken for the purpose of determining compliance with the Foods Standards Code. A detailed procedure is required, as the result of such samples may be used in evidence in prosecution under food legislation.

The Food Bill proposes that an enforcement agency can issue and improvement notice in relation to food business if they are satisfied that premises, equipment or food transport vehicles are unclean, unsanitary or otherwise unfit, do not comply with the food safety standards, or if any provision of the Food Standards Code relating to the handling of food is not being complied with. The improvement notice will require the offending behaviour or equipment to be remedied within a specified time period. It will be an offence to contravene or fail to comply with the improvement notice.

The Chief Health Officer will also have power to issue a prohibition order, in cases where an improvement notice has not been complied with, or the Chief Health Officer believes that issuing the order is necessary to prevent or mitigate a serious danger to public health. Where a prohibition order has been issued, the proprietor can request that the premises be reinspected. If reinspection does not take place within 72 hours of the receipt of a request, a certificate of clearance is deemed to have been given to the proprietor. This ensures that the Chief Health Officer must respond quickly, where a prohibition order is enforced, to minimise the time during which a food business is unable to operate. It is an offence not to comply with a prohibition order. The bill provides for a right of appeal to the local court.

Madam Speaker, the Food Bill 2003 adopts agreed food safety and quality provisions, whilst reducing the regularity burden on industry, it is an important and fundamental step towards ensuring the safety and integrity of food in the Northern Territory.

Debate adjourned.

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