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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
FOOD BILL 2002
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Objects of Act
4. Interpretation
5. Meaning of "food"
6. Meaning of "food business"
7. Meaning of "primary food production"
8. Meaning of "unsafe" food
9. Meaning of "unsuitable" food
10. Application of Act to primary food production
11. Application of Act to water suppliers
12. Act binds Crown
PART 2 OFFENCES RELATING TO FOOD
Division 1 Serious offences relating to food
13. Handling of food in unsafe manner
14. Sale of unsafe food
15. False description of food
[Bill 102]-I
Division 2 Other offences relating to food
16. Handling and sale of unsafe food
17. Handling and sale of unsuitable food
18. Misleading conduct relating to sale of food
19. Sale of food not complying with purchaser's demand
20. Sale of unfit equipment or packaging or labelling
material
21. Compliance with Food Standards Code
22. False descriptions of food
23. Application of provisions outside jurisdiction
Division 3 Defences
24. Defence relating to publication of advertisements
25. Defence in respect of food for export
26. Defence of due diligence
27. Defence in respect of handling food
28. Defence in respect of sale of unfit equipment or
packaging or labelling material
29. Defence of mistaken but reasonable belief not available
30. Onus on person to prove certain statements about food
31. Alternative verdicts for serious food offences
PART 3 EMERGENCY POWERS
32. Interpretation: Part 3
33. Making of order
34. Nature of order
35. Special provisions relating to recall orders
36. Manner of making orders
37. Compensation
38. Failure to comply with emergency order
39. Limitation on stay of operation of emergency orders
2
PART 4 INSPECTION AND SEIZURE POWERS
Division 1 Inspection
40. Powers of authorised officers
41. Search warrants
42. Failure to comply with requirements of authorised
officers
43. False information
44. Interfering with seized items
45. Obstructing or impersonating authorised officers
Division 2 Items seized by authorised officers
46. Seized items
47. Notification of seizure
48. Destruction of filthy, decomposed or putrid matter
49. Return of seized item
50. Forfeiture of item
51. Cost of destruction or disposal of forfeited item
52. Return of forfeited item
53. Compensation to be paid in certain circumstances
54. Application for order disallowing seizure
55. Enforcement agency entitled to answer application
56. Order for return of seized item
57. Ancillary orders
58. Adjournment pending hearing of other proceedings
PART 5 IMPROVEMENT NOTICES AND
PROHIBITION ORDERS
59. Unclean or unfit premises, vehicles or equipment
60. Improvement notice
61. Compliance with improvement notice
62. Prohibition order
63. Scope of notices and orders
3
64. Notices and orders to contain certain information
65. Request for reinspection
66. Contravention of improvement notice or prohibition order
67. Review of decision to refuse certificate of clearance
68. Compensation
PART 6 TAKING AND ANALYSIS OF SAMPLES
Division 1 Taking of samples
69. Proprietor to be informed
70. Payment for sample
71. Samples from vending machines
72. Packaged food
73. Procedure to be followed
74. Samples to be submitted for analysis
75. Analysis of food in certain cases
Division 2 Procedures relating to analyses
76. Compliance with Food Standards Code
77. Certificate of analysis
Division 3 Approval of laboratories
78. Approval of laboratories
79. Term of approval
80. Approved laboratory to give notice of certain interests
81. Variation of conditions, or suspension or cancellation, of
approval of laboratory
82. Review of decisions relating to approval
83. List of approved laboratories to be maintained
PART 7 NOTIFICATION AND REGISTRATION OF
FOOD BUSINESSES
84. Notification of conduct of food businesses
85. Exemption in relation to notification of information
86. Requirement to register food business
4
87. Registration of food business
88. Single certificate of registration for whole State
89. Renewal of registration
90. Term of registration
91. Variation of conditions, or suspension or cancellation, of
registration of food businesses
92. Registration not transferable
93. Review of decisions relating to registration
94. Register of food businesses to be maintained
PART 8 ADMINISTRATION
Division 1 Director of Public Health
95. General functions and powers of Director of Public
Health
96. Delegation by Director of Public Health
Division 2 Councils
97. Functions of councils
98. Power of Director of Public Health to order council to
perform functions
99. Power over wharves, &c.
100. Reports by councils
Division 3 Appointment of authorised officers
101. Appointment of authorised officers
102. Certificates of authority
PART 9 PROCEDURAL AND EVIDENTIARY
PROVISIONS
103. Nature of proceedings for offences
104. Institution of proceedings
105. Offences by employers
106. Offences by bodies corporate
107. Liability of employees and agents
5
108. Defences relating to analysis
109. Onus to prove certain matters on defendant
110. Presumptions
111. Certificate evidence and evidence of analysts
112. Power of court to order further analysis
113. Proceedings relating to third persons
114. Disclosure by witnesses
115. Court may order costs and expenses
116. Court may order forfeiture
117. Court may order corrective advertising
PART 10 INFRINGEMENT NOTICES
118. Service of infringement notice
119. Form of infringement notice
120. Acceptance of infringement notice
121. Extension of acceptance period
122. Payment
123. Payments to council or Consolidated Fund
124. Effect of acceptance
125. Withdrawal of infringement notice
126. Certain evidence not admissible
PART 11 REGULATORY PROVISIONS
127. Regulations
128. Temporary emergency regulations
129. Regulations of savings or transitional nature
130. Council fees
PART 12 MISCELLANEOUS
131. Protection from liability
132. Bribery
133. Disclosure of information
6
134. Administration of Act
135. Savings and transitional provisions
136. Food Act 1998 repealed
137. Consequential amendments
SCHEDULE 1 PROVISIONS WITH RESPECT TO
SEARCH WARRANTS
SCHEDULE 2 CONSEQUENTIAL AMENDMENTS
7
8
FOOD BILL 2002
(Brought in by the Minister for Health and Human
Services, the Honourable David Edward Llewellyn)
A BILL FOR
An Act to ensure the provision of food that is safe
and fit for human consumption and to promote good
nutrition and for related matters
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Food Act 2002.
Commencement
2. This Act commences on a day to be proclaimed.
Objects of Act
3. The objects of this Act include the following:
(a) to ensure food for sale is both safe and suitable
for human consumption;
[Bill 102] 9
s. 4 No. Food 2002
(b) to prevent misleading conduct in connection
with the sale of food;
(c) to provide for the application in this
jurisdiction of the Food Standards Code.
Interpretation
4. (1) In this Act, unless the contrary intention appears
"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;
"appropriate review body" means the
Magistrates Court (Administrative Appeals
Division);
"approved" means approved by the Director of
Public Health;
"approved form" means a form that
(a) is approved by the Director of Public
Health; or
10
2002 Food No. s. 4
(b) contains information approved by the
Director of Public Health;
"approved laboratory" means a laboratory
approved under Division 3 of Part 6;
"authorised officer" means a person appointed
under Division 3 of Part 8;
"court" means the Magistrates Court;
"Director of Public Health" means the person
appointed as Director of Public Health under
section 6 of the Public Health Act 1997;
"enforcement agency" means the Director of
Public Health or a council;
"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 program" means a program that
complies with the requirements specified in
the regulations;
11
s. 4 No. Food 2002
"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 Australia New Zealand Food Authority Act
1991 of the Commonwealth, as adopted or
incorporated by the regulations;
"food transport vehicle" means a vehicle used for
the transport of food for sale (or of food
ultimately intended 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;
"occupier" includes a person in charge of, or
operating, any premises;
"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;
12
2002 Food No. s. 4
"police officer" has the same meaning as in the
Police Regulation Act 1898;
"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
issued 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;
"public institution" means a prison within the
meaning of the Corrections Act 1997, detention
centre within the meaning of the Youth Justice
Act 1997, hospital, nursing home or any other
health facility prescribed in the regulations;
"public notice" means a notice published in the
Gazette;
13
s. 4 No. Food 2002
"recall order" means an order under Part 3
requiring the recall or disposal, or both, of any
food;
"record" means a record of any kind, including a
disk, tape or other article from which
information is capable of being reproduced
(with or without the aid of another article or
device);
"regulations" means the regulations made and in
force under this Act;
"repealed Act" means the Food Act 1998;
"sample" means a sample taken under this Act;
"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
14
2002 Food No. s. 4
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 or inmates in public
institutions; or
(p) sell for the purpose of resale;
"this jurisdiction" means the State of Tasmania;
"unsafe" has the meaning given by section 8;
"unsuitable" has the meaning given by section 9;
"vehicle" means any means of transport, whether
self-propelled or not, and whether used on
land or sea or in the air.
15
s. 5 No. Food 2002
(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.
Meaning of "food"
5. (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 other substance or thing declared to be
food under a declaration in force under section
3B of the Australia New Zealand Food
Authority Act 1991 of the Commonwealth and
prescribed by the regulations for the purposes
of this paragraph
16
2002 Food No. s. 6
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.
Meaning of "food business"
6. 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
(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.
Meaning of "primary food production"
7. (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
17
s. 7 No. Food 2002
grown, raised, cultivated, picked, harvested,
collected or caught, or on premises that are
associated with the premises on which the food
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, raised,
cultivated, picked, harvested, collected or
caught; or
(b) the packing or treating of food on premises
that are associated with the premises on which
it was grown, raised, cultivated, picked,
harvested, collected or caught if carried out by
a person who has purchased the food, or who is
carrying out the packing or treating under
contract (not being a contract of employment);
or
(c) the sale or service of food directly to the public;
or
18
2002 Food No. s. 8
(d) any other food production activity that is
prescribed by the regulations for the purposes
of this subsection.
(3) For the purposes of this section, premises are
associated with each other if they form part of a single
enterprise.
Meaning of "unsafe" food
8. (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.
19
s. 9 No. Food 2002
Meaning of "unsuitable" food
9. (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
(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
20
2002 Food No. s. 10
(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.
Application of Act to primary food production
10. (1) Parts 5 and 7 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
(b) in connection with the making or enforcement
of emergency orders under Part 3.
Application of Act to water suppliers
11. (1) The following provisions of this Act do not apply to
or in respect of the supply of water for human consumption
through a reticulated water system by a water supplier:
(a) sections 13, 15, 16(1), 17(1), 18, 19, 20 and 21
(but only to the extent to which it requires
compliance with the requirements of the Food
Safety Standards);
(b) Parts 5 and 7.
(2) In this section, "water supplier" means
21
s. 12 No. Food 2002
(a) a body that is constituted by or under an Act
and that has as its function, or as one of its
functions, the supply of water for human
consumption; or
(b) a person that 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.
Act binds Crown
12. This Act binds the Crown in right of the State and
also, so far as the legislative power of Parliament permits,
in all its other capacities.
22
2002 Food No. s. 13
PART 2 OFFENCES RELATING TO FOOD
Division 1 Serious offences relating to food
Handling of food in unsafe manner
13. (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.
Penalty: In the case of
(a) an individual, a fine not exceeding
1 000 penalty units or imprisonment
for a term not exceeding 2 years, or
both; or
(b) a body corporate, a fine not exceeding
5 000 penalty units.
(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.
Penalty: In the case of
(a) an individual, a fine not exceeding 750
penalty units; or
(b) a body corporate, a fine not exceeding
3 750 penalty units.
Sale of unsafe food
14. (1) A person must not sell food that the person knows
is unsafe.
Penalty: In the case of
23
s. 15 No. Food 2002
(a) an individual, a fine not exceeding
1 000 penalty units or imprisonment
for a term not exceeding 2 years, or
both; or
(b) a body corporate, a fine not exceeding
5 000 penalty units.
(2) A person must not sell food that the person ought
reasonably to know is unsafe.
Penalty: In the case of
(a) an individual, a fine not exceeding 750
penalty units; or
(b) a body corporate, a fine not exceeding
3 750 penalty units.
False description of food
15. (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.
Penalty: In the case of
(a) an individual, a fine not exceeding
1 000 penalty units or imprisonment
for a term not exceeding 2 years, or
both; or
(b) a body corporate, a fine not exceeding
5 000 penalty units.
(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.
24
2002 Food No. s. 15
Penalty: In the case of
(a) an individual, a fine not exceeding 750
penalty units; or
(b) a body corporate, a fine not exceeding
3 750 penalty units.
(3) A person must not sell food that the person
knows
(a) is falsely described; and
(b) will cause, or is likely to cause, physical harm
to a consumer of the food who relies on the
description.
Penalty: In the case of
(a) an individual, a fine not exceeding
1 000 penalty units or imprisonment
for a term not exceeding 2 years, or
both; or
(b) a body corporate, a fine not exceeding
5 000 penalty units.
(4) A person must not sell food that the person ought
reasonably to know
(a) is falsely described; and
(b) is likely to cause physical harm to a consumer
of the food who relies on the description.
Penalty: In the case of
(a) an individual, a fine not exceeding 750
penalty units; or
(b) a body corporate, a fine not exceeding
3 750 penalty units.
25
s. 16 No. Food 2002
Division 2 Other offences relating to food
Handling and sale of unsafe food
16. (1) A person must not handle food intended for sale in
a manner that will render, or is likely to render, the food
unsafe.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(2) A person must not sell food that is unsafe.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
Handling and sale of unsuitable food
17. (1) A person must not handle food intended for sale in
a manner that will render, or is likely to render, the food
unsuitable.
Penalty: In the case of
(a) an individual, a fine not exceeding 400
penalty units; or
(b) a body corporate, a fine not exceeding
2 000 penalty units.
26
2002 Food No. s. 18
(2) A person must not sell food that is unsuitable.
Penalty: In the case of
(a) an individual, a fine not exceeding 400
penalty units; or
(b) a body corporate, a fine not exceeding
2 000 penalty units.
(3) For the purposes of this section, it is immaterial
whether the food concerned is safe.
Misleading conduct relating to sale of food
18. (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.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(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.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
27
s. 19 No. Food 2002
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(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.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(4) Nothing in subsection (2) or (3) limits the
generality of subsection (1).
Sale of food not complying with purchaser's demand
19. (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.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(2) For the purposes of this section, it is immaterial
whether the food concerned is safe.
28
2002 Food No. s. 20
Sale of unfit equipment or packaging or labelling
material
20. (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
(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.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(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.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
29
s. 21 No. Food 2002
Compliance with Food Standards Code
21. (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.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(2) A person must not sell any food that does not
comply with any requirement of the Food Standards Code
that relates to the food.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(3) A person must not sell or advertise any food that
is packaged or labelled in a manner that contravenes a
provision of the Food Standards Code.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
(4) A person must not sell or advertise for sale any
food in a manner that contravenes a provision of the Food
Standards Code.
30
2002 Food No. s. 22
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
False descriptions of food
22. (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;
(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
31
s. 23 No. Food 2002
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 15(3) or (4), food is falsely
described for the purposes of section 15(3) or (4) 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.
Application of provisions outside jurisdiction
23. 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 jurisdiction.
Division 3 Defences
Defence relating to publication of advertisements
24. (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
32
2002 Food No. s. 25
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
(b) had previously been informed in writing by the
Director of Public Health, a council or an
authorised officer 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.
Defence in respect of food for export
25. (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
jurisdiction.
33
s. 26 No. Food 2002
Defence of due diligence
26. (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
(c) that the person did not import the food into
the jurisdiction 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
34
2002 Food No. s. 26
(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.
(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
subsection (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.
35
s. 27 No. Food 2002
Defence in respect of handling food
27. In any proceedings for an offence under section 13,
section 16(1) or section 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.
Defence in respect of sale of unfit equipment or
packaging or labelling material
28. 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.
Defence of mistaken but reasonable belief not
available
29. In any proceedings for an offence under Division 2, it
is no defence that the person had a mistaken but
reasonable belief as to the facts that constituted the
offence.
Onus on person to prove certain statements about
food
30. (1) This section applies to a proceeding for an offence
under this Part in which it is alleged that a statement on a
package of food, or in an advertisement about food, that
relates to the origin or composition of the food, or its
therapeutic or nutritive properties, caused the food to be
falsely described.
36
2002 Food No. s. 31
(2) If a person charged with an offence under this
Part was responsible for making the statement, the onus
of proving the correctness of the statement is on the
person.
Alternative verdicts for serious food offences
31. (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.
(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.
37
s. 32 No. Food 2002
PART 3 EMERGENCY POWERS
Interpretation: Part 3
32. In this Part, "relevant authority" means the
Director of Public Health, a council or an authorised
officer.
Making of order
33. An order may be made under this Part by a relevant
authority if the relevant 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.
Nature of order
34. (1) 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 relevant 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 or other primary produce
intended to be used for human consumption;
(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
38
2002 Food No. s. 35
the period within which, the recall is to be
conducted;
(e) direct that a particular food or type of food or
other primary produce intended to be used for
human consumption 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.
(2) An order under this Part may be varied or
revoked by the relevant authority who made the order in
the same manner as the order was made.
Special provisions relating to recall orders
35. (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:
39
s. 36 No. Food 2002
(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
relevant authority who made the recall order 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 relevant
authority in connection with the recall order and any such
cost is taken to be a debt due to the relevant authority who
made the recall order from that person.
(4) In any proceedings for the recovery of the debt, a
certificate signed by the relevant authority who made the
recall order stating the amount of any costs and the
manner in which they were incurred is evidence of the
matters certified.
Manner of making orders
36. (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.
40
2002 Food No. s. 37
(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 relevant authority
who made the order, 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.
(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.
Compensation
37. (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 relevant authority who made the order 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 relevant authority who made the order is
to pay such compensation to the applicant as is just and
reasonable.
41
s. 38 No. Food 2002
(3) The relevant authority who made the order 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 relevant authority who made the order has
not determined an application for compensation under this
section within 28 days of receiving the application, the
relevant authority is taken to have refused to pay
compensation.
(5) An applicant for the payment of compensation
under this section who is dissatisfied with a determination
by the relevant authority who made the order as to the
refusal to pay compensation or as to the amount of
compensation may apply to the appropriate review body
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 of the 28-day period referred to
in that subsection.
Failure to comply with emergency order
38. 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.
42
2002 Food No. s. 39
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
Limitation on stay of operation of emergency orders
39. 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.
43
s. 40 No. Food 2002
PART 4 INSPECTION AND SEIZURE POWERS
Division 1 Inspection
Powers of authorised officers
40. (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 with 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 to 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) 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
44
2002 Food No. s. 40
this Act are being complied with, demand,
select and obtain samples of any food;
(g) 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;
(h) 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;
(i) seize and retain, or issue a seizure order in
respect of, any thing that the authorised
officer reasonably believes has been used in, or
may be used as evidence of, a contravention of
this Act;
(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;
45
s. 40 No. Food 2002
(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 is being or
has been committed;
(r) exercise any other power prescribed by or
under the regulations.
(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 of meals provided with paid
accommodation.
(3) A person is not excused from a requirement
under this section to provide information or answer
questions, or to produce any record, document or thing, on
46
2002 Food No. s. 41
the ground that the information, answer, record, document
or thing might incriminate the person or make the person
liable to a penalty.
(4) However, any information or answer furnished,
or record, document or thing produced, by a natural person
in compliance with such a requirement is not admissible in
evidence against the person in criminal proceedings other
than proceedings for an offence against section 42, 43 or
45.
Search warrants
41. (1) An authorised officer may apply to a justice of the
peace for a search warrant if the authorised officer has
reasonable grounds to believe that a provision of this Act
has been, is being or is about to be contravened on
premises.
(2) A justice of the peace to whom an application is
made under this section may, if satisfied that there are
reasonable grounds for doing so, issue a search warrant.
(3) An authorised officer may execute a search
warrant using such assistance as the authorised officer
considers necessary.
(4) A warrant issued under this section may be
made subject to any conditions that the justice of the peace
considers appropriate.
(5) Subject to subsection (4), a warrant issued under
this section authorises the authorised officer named in the
warrant to enter and search the premises specified in the
warrant and exercise such of the powers specified in
section 40 as are not expressly excluded by the justice of
the peace who issued the warrant.
47
s. 42 No. Food 2002
(6) Schedule 1 has effect with respect to a warrant
issued under this section.
(7) This section does not limit the operation of
section 40(1).
Failure to comply with requirements of authorised
officers
42. A person must not, without reasonable excuse, fail to
comply with a requirement of an authorised officer duly
made under this Division.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
False information
43. A person must not, in connection with a requirement
or direction under this Act, provide any information or
answer or produce any record, document or thing that the
person knows is false or misleading in a material
particular.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
48
2002 Food No. s. 44
Interfering with seized items
44. 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 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 this Division.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
Obstructing or impersonating authorised officers
45. (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.
Penalty: Fine not exceeding 500 penalty units.
(2) A person must not impersonate an authorised
officer.
Penalty: Fine not exceeding 100 penalty units.
(3) A person must not threaten, intimidate or
assault an authorised officer in the exercise of the
authorised officer's functions under this Act.
Penalty: Fine not exceeding 500 penalty units.
49
s. 46 No. Food 2002
Division 2 Items seized by authorised officers
Seized items
46. (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.
Notification of seizure
47. 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 54 for
an order disallowing the seizure;
50
2002 Food No. s. 48
(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.
Destruction of filthy, decomposed or putrid matter
48. 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.
Return of seized item
49. If, before any item seized under this Part is forfeited
to the Crown or a council under this Division, an
authorised officer becomes satisfied that there has been no
contravention of this Act of which the item is evidence, the
authorised officer 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 authorised
officer to be entitled to it.
Forfeiture of item
50. (1) An item seized under this Part is forfeited to the
Crown or a council
(a) on the expiration of the period allowed by
section 54 for the making of an application for
51
s. 51 No. Food 2002
an order disallowing the seizure if the item
has not been dealt with under section 49 and
no application under section 54 has been made
within that period; or
(b) if an application for an order disallowing the
seizure has been made under section 54 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 was refused or withdrawn.
(2) An item forfeited under this section may be
destroyed, sold or otherwise disposed of as the enforcement
agency concerned may determine.
Cost of destruction or disposal of forfeited item
51. (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.
Return of forfeited item
52. (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
52
2002 Food No. s. 53
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 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.
Compensation to be paid in certain circumstances
53. (1) A person may apply for compensation for an item
seized under this Part.
(2) The enforcement agency concerned is 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 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.
53
s. 54 No. Food 2002
(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 as to the
payment of such compensation may apply to the
appropriate review body for a review of the determination
within 10 days after the date on which notification of the
determination was received.
Application for order disallowing seizure
54. (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
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.
Enforcement agency entitled to answer application
55. The enforcement agency concerned is entitled to
appear as respondent at the hearing of an application
made under section 54.
Order for return of seized item
56. The court, on the hearing of an application made
under section 54, 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 was
54
2002 Food No. s. 57
being or had been or was about to be
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.
Ancillary orders
57. (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) The award of costs with respect to the hearing of
the application lies in the discretion of the court.
(3) 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.
55
s. 58 No. Food 2002
Adjournment pending hearing of other proceedings
58. If on the hearing of an application made under
section 54 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 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.
56
2002 Food No. s. 59
PART 5 IMPROVEMENT NOTICES AND
PROHIBITION ORDERS
Unclean or unfit premises, vehicles or equipment
59. 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 intended for sale or
any equipment or food transport vehicle, any
food safety program 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 in 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.
57
s. 60 No. Food 2002
Improvement notice
60. (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; or
(d) a food safety program be revised; or
(e) in relation to the handling of food intended for
sale in premises or in a food transport vehicle,
measures be taken to implement the
provisions of any relevant food safety program;
or
(f) other action be taken to ensure compliance
with the provisions of the Food Standards
Code
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, an authorised officer 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 may include ancillary or
incidental directions.
58
2002 Food No. s. 61
(4) An improvement notice is to state that it is
issued under this section.
Compliance with improvement notice
61. (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.
Prohibition order
62. (1) If an authorised officer believes, on reasonable
grounds
(a) that any of the circumstances specified in
section 59 exist; and
(b) that
(i) the proprietor of the food business has
not complied with an improvement
notice within the time required for
compliance; or
(ii) the issue of a prohibition order is
necessary to prevent or mitigate a
serious danger to public health
the authorised officer may serve a prohibition order on the
proprietor of the food business in accordance with this
Part.
59
s. 62 No. Food 2002
(2) A prohibition order is to take the form of an order
that
(a) no food intended for sale is to be handled in
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; or
(e) prohibits other action being taken
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 may include ancillary or
incidental directions.
(4) A prohibition order is to state that it is issued
under this section.
(5) The authorised officer 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 authorised
officer or person finds that
(a) the premises, part of the premises, vehicle or
equipment, or the handling of food by the food
60
2002 Food No. s. 63
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.
Scope of notices and orders
63. An improvement notice or a prohibition order may be
issued 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 in 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;
(c) the handling of food intended for sale by a food
business in a specified way or for a specified
purpose.
Notices and orders to contain certain information
64. 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.
61
s. 65 No. Food 2002
Request for reinspection
65. (1) The proprietor of the food business whose premises
are affected by a prohibition order may at any time after
the order has been served make a written request to the
enforcement agency who employs the authorised officer
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 enforcement agency who employs the
authorised officer 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
enforcement agency 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
2 days after the receipt of the request by the enforcement
agency, a certificate of clearance is taken to have been
given to the proprietor of the food business under
section 62.
Contravention of improvement notice or prohibition
order
66. A person must not, without reasonable excuse,
contravene or fail to comply with an improvement notice or
a prohibition order served on the person under this Part.
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2002 Food No. s. 67
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
2 500 penalty units.
Review of decision to refuse certificate of clearance
67. (1) A person aggrieved by a decision of an authorised
officer to refuse to give a certificate of clearance under this
Part may apply to the appropriate review body for a review
of the decision.
(2) An application under subsection (1) must be
made within 28 days after the day on which notification of
the decision is received.
Compensation
68. (1) A person bound by a prohibition order who suffers
loss as a result of the issuing of the order may apply to the
enforcement agency that issued the order for compensation
if the person considers that there were no grounds for the
issuing of the order.
(2) If there were no grounds for the issuing of the
order, the enforcement agency that issued the order is to
pay such compensation to the applicant as is just and
reasonable.
(3) The 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.
63
s. 68 No. Food 2002
(4) If the enforcement agency has not determined an
application for compensation under this section within 28
days of receiving the application, the 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
under subsection (3) as to the refusal to pay compensation
or as to the amount of compensation may apply to the
appropriate review body 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 28-day period referred
to in that subsection.
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2002 Food No. s. 69
PART 6 TAKING AND ANALYSIS OF SAMPLES
Division 1 Taking of samples
Proprietor to be informed
69. Whenever an authorised officer obtains a sample of
food for the purposes of analysis, the 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, or was, taken; or
(b) if the proprietor is not present or readily
available, the person from whom the sample is
to be, or was, taken or who is in charge of the
food from which the sample is to be, or was,
taken
of the authorised officer's intention to have the sample
analysed.
Payment for sample
70. An authorised officer when obtaining a sample of food
must pay, or tender payment of, an amount equal to the
current market value of the sample to the person from
whom the sample is obtained.
Samples from vending machines
71. Sections 69 and 70 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
65
s. 72 No. Food 2002
identify anyone who at the time appears to be in charge of
the machine.
Packaged food
72. 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 2 or more smaller
packages of the same food.
Procedure to be followed
73. (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.
66
2002 Food No. s. 73
(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
(c) deals with those parts in accordance with the
preceding provisions of this section.
67
s. 74 No. Food 2002
Samples to be submitted for analysis
74. 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.
Analysis of food in certain cases
75. In any proceedings relating to food purchased by a
person other than an authorised officer in the ordinary
course of business and analysed, if it is proved that the
food when submitted for analysis was in the same state as
when bought
(a) the certificate of analysis provided under
section 77 in relation to that food is admissible
as evidence; and
(b) section 73 is not required to be complied with.
Division 2 Procedures relating to analyses
Compliance with Food Standards Code
76. 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.
Certificate of analysis
77. (1) This section applies to an analysis that is carried
out by an approved laboratory for the purposes of this Act.
(2) On completion of an analysis to which this
section applies, the person in charge of the laboratory at
which the analysis was carried out is to give the person
68
2002 Food No. s. 78
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; and
(b) contain a written report of the analysis that
sets out the findings; and
(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
Approval of laboratories
78. (1) The Director of Public Health 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, on payment of the
approved fee, make an application, in the approved form,
to the Director of Public Health for an approval of the
laboratory under this Division.
(3) The Director of Public Health may, after
considering an application for approval
(a) grant the application, with or without
conditions; or
(b) refuse the application.
69
s. 79 No. Food 2002
(4) If the Director of Public Health grants an
application for approval, he or she must issue the
applicant with a written approval that sets out the
conditions, if any, to which the approval is subject.
(5) If the Director of Public Health refuses an
application for approval, he or she must give notice of the
refusal in writing to the applicant setting out the reasons
for the refusal.
Term of approval
79. Except during any period of suspension, an approval
of a laboratory under this Division remains in force until
cancelled.
Approved laboratory to give notice of certain
interests
80. The person in charge of an approved laboratory must
notify the Director of Public Health 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.
Penalty: Fine not exceeding 100 penalty units.
Variation of conditions, or suspension or
cancellation, of approval of laboratory
81. (1) The Director of Public Health may vary the
conditions of, or suspend or cancel, the approval of a
laboratory under this Division.
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2002 Food No. s. 81
(2) An approval of a laboratory may be suspended or
cancelled on one or more of the following grounds:
(a) if the Director of Public Health is satisfied that
a person providing services at the laboratory
has contravened or failed to comply with any
provision of this Act;
(b) if the Director of Public Health is satisfied that
a person providing services at the laboratory
has contravened a condition to which the
approval is subject;
(c) if the Director of Public Health 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 Director of
Public Health, 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 Director of Public
Health considers appropriate.
(3) The Director of Public Health 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 for his or her intention
to vary, suspend or cancel; and
(ii) an opportunity to make submissions;
and
71
s. 82 No. Food 2002
(b) after having considered any submissions made
by the person.
(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, 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 on the day on which the notice is
served or on a later day specified in the notice.
Review of decisions relating to approval
82. (1) A person aggrieved by a decision of the Director of
Public Health relating to any of the following may apply to
the appropriate review body for a review of the decision:
(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 must be made
within 28 days after service of
(a) the written approval or notice of refusal under
this Division; or
(b) the notice of the variation, suspension or
cancellation under this Division.
72
2002 Food No. s. 83
List of approved laboratories to be maintained
83. (1) The Director of Public Health is to prepare and
maintain a list of approved laboratories.
(2) The list is to be made publicly available.
(3) The Director of Public Health may charge a
reasonable fee for inspection.
73
s. 84 No. Food 2002
PART 7 NOTIFICATION AND REGISTRATION OF
FOOD BUSINESSES
Notification of conduct of food businesses
84. 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
council of the municipal area in which the food business is
located before the food business is conducted.
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
1 200 penalty units.
Exemption in relation to notification of information
85. Section 21 (to the extent to which it requires
notification of the information referred to in section 84)
and section 84 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;
(b) any food business that is registered under this
Act or under a law prescribed by the
regulations.
74
2002 Food No. s. 86
Requirement to register food business
86. (1) The Director of Public Health, by notice in the
Gazette, may require the proprietor of any food business or
class of food businesses to register the food business.
(2) A person must comply with a requirement under
subsection (1).
Penalty: In the case of
(a) an individual, a fine not exceeding 500
penalty units; or
(b) a body corporate, a fine not exceeding
1 200 penalty units.
Registration of food business
87. (1) For the purposes of this Part, a council may
register a food business
(a) located in the municipal area; and
(b) to which a notice under section 86 relates.
(2) The proprietor of a food business to which a
notice under section 86 relates is to apply to the council of
the municipal area in which the food business is located
for the food business to be registered.
(3) An application is to be
(a) in an approved form; and
(b) lodged with the council of the municipal area
in which the food business is located.
(4) The application is to be accompanied by
75
s. 88 No. Food 2002
(a) if required by the council, the design and fitout
specifications, in a form approved by the
council, of any premises or proposed premises
in which food is to be handled in the course of
conducting the food business; and
(b) such other information as the council requires
to determine the application; and
(c) the fee, if any, determined by the council.
(5) The council may, after considering an application
for registration
(a) grant the application, with or without
conditions; or
(b) refuse the application.
(6) If the council grants an application for
registration, it must issue the applicant with a certificate
of registration that sets out the conditions, if any, to which
the registration is subject.
(7) If the council refuses an application for
registration, the council must give notice of the refusal in
writing to the applicant setting out the reasons for the
refusal.
Single certificate of registration for whole State
88. A certificate of registration of a food business which is
conducted in a vehicle issued by one council is sufficient to
satisfy the requirement of registration in respect of that
food business throughout the State.
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2002 Food No. s. 89
Renewal of registration
89. (1) The holder of a certificate of registration under
this Part may, at any time during the currency of the
registration, apply to the council of the municipal area in
which the food business is located for a renewal of the
registration.
(2) The application is to be accompanied by the fee,
if any, determined by the council.
(3) The council 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 council 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.
(5) If the council refuses an application for renewal
of registration, the council 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 90.
77
s. 90 No. Food 2002
Term of registration
90. Except during any period of suspension, the
registration of a food business under this Part remains in
force for the period specified in the certificate of
registration or for a period of 12 months from the date of
its issue, whichever is the lesser.
Variation of conditions, or suspension or
cancellation, of registration of food businesses
91. (1) The council of the municipal area in which the food
business is registered 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 council is satisfied that there has been a
contravention of any provision of this Act in
the conduct of the food business;
(b) if the council 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 council considers
appropriate.
(3) The council may only vary the conditions of, or
suspend or cancel, the registration of a food business after
having given the holder of the certificate of registration
78
2002 Food No. s. 92
(a) written notice of its intention to vary, suspend
or cancel the registration setting out its
reasons; and
(b) an opportunity to make submissions.
(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.
Registration not transferable
92. A certificate of registration is not transferable.
Review of decisions relating to registration
93. (1) A person aggrieved by a decision of a council
relating to any of the following may apply to the
appropriate review body for a review of the decision:
(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;
79
s. 94 No. Food 2002
(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 28 days after
(a) the issue of the certificate of registration
under section 87(6) or section 89(4); or
(b) the giving of the notice of refusal under
section 87(7) or section 89(5); or
(c) the service of the notice of the variation,
suspension or cancellation under section 91(5).
Register of food businesses to be maintained
94. (1) Each council is to prepare and maintain a list
containing all of the following:
(a) food businesses notified to it under section 84;
(b) food businesses registered by it under
section 87;
(c) food businesses whose registration is renewed
under section 89.
(2) The list is to be made publicly available and is to
be revised at least annually.
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2002 Food No. s. 95
PART 8 ADMINISTRATION
Division 1 Director of Public Health
General functions and powers of Director of Public
Health
95. (1) The functions of the Director of Public Health are
as follows:
(a) to take measures to ensure that the provisions
of this Act are complied with;
(b) to advise the Minister on any changes to this
Act that may be necessary or appropriate;
(c) to carry out any other function for the purpose
of this Act the Minister determines.
(2) The Director of Public Health may do anything
necessary or convenient to perform any function under this
Act.
(3) The Minister may give the Director of Public
Health directions in respect of any power or function of the
Director of Public Health under this Act and the Director
of Public Health must comply with the directions.
Delegation by Director of Public Health
96. (1) The Director of Public Health may delegate any of
his or her functions or powers, other than this power of
delegation, to any person, class of persons or State Service
Agency.
(2) The Director of Public Health is not to delegate
any function or power to a council without that council's
consent.
81
s. 97 No. Food 2002
(3) The Director of Public Health is not to revoke a
delegation to a council without consulting that council.
Division 2 Councils
Functions of councils
97. A council, within its municipal area, is to
(a) take adequate measures to ensure that the
provisions of this Act are complied with; and
(b) carry out any other function the Minister or
Director of Public Health determines.
Power of Director of Public Health to order council
to perform functions
98. (1) The Director of Public Health may order
(a) a council to exercise any power or perform any
function under this Act; or
(b) any authorised officer to carry out a specified
function of a council under this Act; or
(c) any authorised officer to perform any function
under this Act in any municipal area.
(2) If a council fails to exercise any power or perform
any function, the Director of Public Health may exercise
the power or perform the function at the council's expense.
(3) Before the Director of Public Health makes an
order or takes any action under this section in relation to a
council, the Director of Public Health, unless the
circumstances require immediate action, is to consult with
the council.
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2002 Food No. s. 99
(4) A council may request the Director of Public
Health to exercise any of its powers or perform any of its
functions at the council's expense.
Power over wharves, &c.
99. A power or function of a council under this Act extends
to any wharf or body of water in, or adjacent to, its
municipal area.
Reports by councils
100. (1) The council is to report to the Director of Public
Health, at such intervals as the Director of Public Health
requires, on the performance of functions under this Act by
persons employed or engaged by the council.
(2) In addition to any report required under
subsection (1), the council is to forward to the Director of
Public Health details of any proceedings for an offence
under this Act taken by an officer, employee or agent of
the council within one month of the proceedings being
finally dealt with.
Division 3 Appointment of authorised officers
Appointment of authorised officers
101. (1) The Director of Public Health may appoint a
State Service officer or State Service employee to be an
authorised officer for the purpose of this Act and that
officer or employee may hold that office in conjunction with
State Service employment.
(2) A council may appoint a person to be an
authorised officer for the purposes of this Act.
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s. 102 No. Food 2002
(3) A person may not be appointed as an authorised
officer under this section unless the person holds an
approved qualification.
(4) The Director of Public Health may approve the
qualifications required for appointment as an authorised
officer generally or for a particular appointment.
Certificates of authority
102. (1) The Director of Public Health is to provide each
authorised officer appointed under section 101(1) with a
certificate of authority as an authorised officer.
(2) A council is to provide an authorised officer
appointed under section 101(2) with a certificate of
authority as an authorised officer.
(3) The powers of an authorised officer may be
limited by the authorised officer's certificate of authority.
(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 any
thing or to answer any question.
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2002 Food No. s. 103
PART 9 PROCEDURAL AND EVIDENTIARY
PROVISIONS
Nature of proceedings for offences
103. Proceedings for an offence under this Act are to be
dealt with summarily.
Institution of proceedings
104. (1) Proceedings for an offence under this Act
(a) may only be instituted by
(i) the Minister or a person authorised by
the Minister; or
(ii) an authorised officer; or
(iii) the Director of Public Health or a
council; and
(b) may only be instituted
(i) unless subparagraph (ii) applies, within
3 years after the date on which the
offence is alleged to have been
committed; or
(ii) if the proceedings are in respect of a
sample of food, within 120 days after the
date on which the sample was obtained.
(2) A person may apply to a magistrate within the
time limits referred to in subsection (1) to extend those
time limits.
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s. 105 No. Food 2002
Offences by employers
105. (1) If an employee contravenes any provision of this
Act, 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 proved that the
employer could not, by taking all reasonable precautions
and exercising all 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.
Offences by bodies corporate
106. (1) If a body corporate contravenes, whether by act or
omission, any provision of this Act, each person who is a
member of the governing body of the body corporate or who
is concerned in the management of the body corporate is
taken to have contravened the same provision if the person
knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted
under a provision pursuant to this section whether or not
the body corporate has been proceeded against or been
convicted under that provision.
(3) Nothing in this section affects any liability
imposed on a body corporate for an offence committed by
the body corporate under this Act.
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2002 Food No. s. 107
Liability of employees and agents
107. (1) Except as provided by subsection (2), it is no
defence in proceedings for an offence under this Act 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,
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.
(3) Except by leave of the court, a defence under
subsection (2) is only available if the person intending to
rely on that defence gives notice in writing to the court and
the complainant
(a) stating that intention; and
(b) stating the name and address of the owner.
Defences relating to analysis
108. In any proceedings for an offence under this Act
relating to food that has been analysed, it is not a defence
for a person to allege
(a) that the person instituting the proceedings is
not the person who caused the analysis to be
made; or
(b) that any part of the food retained for future
comparison has undergone any deterioration
or material change in its constitution.
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s. 109 No. Food 2002
Onus to prove certain matters on defendant
109. In any proceedings for an offence under this Act
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 effect 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.
Presumptions
110. In any proceedings for an offence under this Act, it is
presumed, until on the balance of probabilities the
contrary is proved, that
(a) a person intends to sell food if he or she sells
any thing of which food is a constituent; and
(b) 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
(c) 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
(d) 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
(e) each part of a sample of food divided for the
purpose of analysis under this Act is of
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2002 Food No. s. 111
uniform composition with every other part of
that sample; and
(f) 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
(g) any food found in any food business used for
the manufacture of food is intended
(i) to be used in the manufacture of food;
and
(ii) for human consumption; and
(h) 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
(i) 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
(j) a signature purporting to be that of the
Director of Public Health, the general manager
of a council, an authorised officer or the person
in charge of an approved laboratory is that
signature.
Certificate evidence and evidence of analysts
111. (1) A certificate of the result of an analysis obtained
by the defendant or the complainant in proceedings for an
offence under this Act is admissible in any such
proceedings and evidence of the facts stated in it if
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s. 111 No. Food 2002
(a) the certificate was issued in accordance with
this Act; 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,
the complainant cannot rely on an analysis as evidence for
the purposes of those proceedings unless the person who
carried out the analysis is employed or engaged by an
approved laboratory.
(4) In any proceedings for an offence under this
Act
(a) a document purporting to be a copy of any
approval, order, notice or authority under this
Act is evidence of that approval, order, notice
or authority; or
(b) a document purporting to be signed by the
Director of Public Health, general manager of
a council or an authorised officer certifying
that at a specified time or during a specified
period
(i) there was or was not in force any
approval, order, notice or authority in
relation to a specified person or persons;
and
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2002 Food No. s. 112
(ii) an 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
Director of Public Health, general manager of
a council or an authorised officer 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; or
(iii) that there was or was not in force any
notification under section 84 or
certification of registration under
section 87 or 89
is evidence of the matters contained in the
document.
Power of court to order further analysis
112. (1) In any proceedings for an offence under this Act,
the court may, at the request of any party to the
proceedings or on its own motion, if satisfied that there is
a disagreement between the evidence of the analysts for
the parties to the proceedings, order that the part or parts
of any sample retained under this Act be sent by the
enforcement agency concerned to an analyst specified by
the court or agreed to by the parties.
(2) An analyst who is sent a part or parts of a
sample for analysis under this section is to make an
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s. 113 No. Food 2002
analysis of that part or those parts for the information of
the court.
(3) Subject to section 115, the cost of an analysis
under this section is to be borne by the enforcement
agency concerned.
Proceedings relating to third persons
113. (1) A person charged with an offence under this Act
who alleges that the offence was due to the act or omission
of another person may apply to a justice for a summons to
that other person to appear in proceedings relating to that
offence.
(2) On receipt of the application, a justice is to
(a) issue the summons; and
(b) adjourn the proceedings until the return date
of the summons.
(3) The summons is to include
(a) particulars of the complaint; and
(b) the allegations relating to the other person's
act or omission.
(4) The defendant is to forward to the complainant a
copy of the application for the summons.
(5) In proceedings for the offence, the complainant
and the other person summonsed to appear may
(a) cross-examine the defendant, if the defendant
gives evidence, and any witness called by the
defendant; and
(b) call evidence in rebuttal.
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2002 Food No. s. 114
(6) In determining proceedings for the offence, a
court
(a) may convict the other person summonsed to
appear if the defendant proves that the offence
was due to that person's act or omission; and
(b) is to dismiss the charge against the defendant
if the defendant proves that he or she
exercised due diligence to ensure compliance
with the provision that gave rise to the offence;
and
(c) may make any order it considers appropriate
for the payment of costs by any party to any
other party.
(7) If an authorised officer is reasonably satisfied
that an offence has been committed by a person and that
the offence was due to an act or omission of another
person
(a) the authorised officer may cause proceedings
to be brought against that other person
without first causing proceedings to be
brought against the person committing the
offence; and
(b) the other person may be charged with, and
convicted of, that offence.
Disclosure by witnesses
114. (1) In any proceedings for an offence under this Act,
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.
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s. 115 No. Food 2002
(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 may order the
disclosure of any matter, or the production of a document,
referred to in those subclauses if the court considers that it
is necessary in the interests of justice.
Court may order costs and expenses
115. Without affecting any other power of a court to
award costs, a court that hears proceedings for an offence
under this Act has power to make such order 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 disposal
of any thing the subject of those proceedings.
Court may order forfeiture
116. A court by which a person is convicted of an offence
under this Act may order the forfeiture to the Crown or a
council of any thing that was used in the commission of the
offence.
Court may order corrective advertising
117. 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
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2002 Food No. s. 117
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.
95
s. 118 No. Food 2002
PART 10 INFRINGEMENT NOTICES
Service of infringement notice
118. (1) An authorised officer or a council may serve an
infringement notice on a person, other than a person
under the age of 16 years, if of the opinion that the person
has committed a prescribed offence.
(2) An infringement notice is not to relate to 4 or
more offences.
Form of infringement notice
119. (1) An infringement notice is to
(a) be in an approved form; and
(b) specify
(i) the offence to which it relates; and
(ii) the prescribed penalty and prescribed
special penalty for that offence; and
(iii) the total amount payable; and
(iv) the place at which the penalty must be
paid; and
(v) any other prescribed details.
(2) An infringement notice is to state that the person
on whom it is served may disregard the notice but that on
doing so he or she may be prosecuted for the offence to
which the notice relates.
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2002 Food No. s. 120
Acceptance of infringement notice
120. A person may accept an infringement notice by
(a) paying the total amount payable at the place
specified in the notice within 21 days after
being served with the notice; or
(b) lodging at the place specified in the notice
within 21 days after being served with the
notice a written undertaking to pay the
amount payable.
Extension of acceptance period
121. If an infringement notice is not accepted before the
period referred to in section 120 expires, a clerk of petty
sessions or the general manager of the relevant council
may allow a further period of 14 days commencing on that
expiry for the acceptance of that notice.
Payment
122. (1) If a person undertakes under section 120(b) to
pay any amount payable under an infringement notice, a
clerk of petty sessions or the general manager of the
relevant council may determine the period, not exceeding
63 days from the day on which the notice was served,
within which the amount must be paid.
(2) The person may make representations to a clerk
of petty sessions or the general manager of the relevant
council in relation to the ability to pay the amount.
(3) A clerk of petty sessions or the general manager
of the relevant council is to take the person's
representations into account before determining the period
within which the amount is to be paid.
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(4) If a person fails to pay any amount in accordance
with an undertaking, the same proceedings may be taken
against the person in respect of the amount remaining
outstanding as if it were a penalty imposed on the person
on summary conviction.
Payments to council or Consolidated Fund
123. Any payments made in respect of an infringement
notice
(a) are payable to a council, if the notice was
served by the council; or
(b) in any other case, are payable into the
Consolidated Fund.
Effect of acceptance
124. (1) The acceptance of an infringement notice is not
an admission of liability in any civil proceedings.
(2) Proceedings against a person for an offence to
which an infringement notice relates that has not been
withdrawn must not be brought
(a) if the person accepts the infringement notice;
or
(b) within
(i) 28 days after the notice was served, if
the person has not been allowed a
further period under section 121; or
(ii) 42 days after the notice was served, if
the person has been allowed a further
period under section 121.
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2002 Food No. s. 125
Withdrawal of infringement notice
125. (1) The Director of Public Health or a council or any
person authorised by either of them may withdraw an
infringement notice served on a person if of the opinion
that
(a) the infringement notice should not have been
served; or
(b) the person should be proceeded against for the
offence to which the notice relates.
(2) An infringement notice may be withdrawn
whether or not it has been accepted.
(3) An infringement notice is to be withdrawn by
serving on a person a notice stating that the infringement
notice has been withdrawn within
(a) 28 days of the service of the notice in the case
of a person who has not been allowed a further
period to accept the infringement notice under
section 121; and
(b) 42 days of the service of the notice in the case
of a person who has been allowed a further
period to accept the infringement notice under
section 121.
(4) A clerk of petty sessions or the general manager
of the relevant council must repay to a person any amount
paid by that person in respect of an infringement notice
that is withdrawn.
Certain evidence not admissible
126. Evidence of the service, acceptance or withdrawal of
an infringement notice is not admissible in any
proceedings for the offence to which the notice relates.
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s. 127 No. Food 2002
PART 11 REGULATORY PROVISIONS
Regulations
127. (1) The Governor may make regulations for the
purpose of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may
(a) require 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; and
(b) specify the requirements for food safety
programs; and
(c) prescribe 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; and
(d) prescribe fees for the making of applications
under this Act; and
(e) impose requirements for the notification by
food businesses of information relating to the
conduct of those food businesses.
(3) Regulations may be made so as to apply
differently according to any matter, condition, limitation,
restriction, exception or circumstance specified in the
regulations.
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2002 Food No. s. 128
(4) The regulations may
(a) provide that a contravention of, or a failure to
comply with, any of the regulations is an
offence; and
(b) in respect of such an offence, provide for the
imposition of a fine not exceeding 200 penalty
units and, in the case of a continuing offence, a
further fine not exceeding 20 penalty units for
each day during which the offence continues.
(5) The regulations may
(a) authorise any matter to be determined,
applied or regulated by a specified person or
body; and
(b) confer a power or impose a duty on a specified
person or class of persons.
(6) The regulations may adopt or incorporate the
whole or part of any standard, rule, code, specification or
guidelines, as amended from time to time, with or without
modification, issued, prescribed, made or published by any
person or body before or after the regulations take effect.
(7) The regulations may rescind regulations or other
subordinate legislation made under the repealed Act.
Temporary emergency regulations
128. (1) Despite section 127(1), regulations may be made
under this Part 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 jurisdiction.
(2) A regulation referred to in subsection (1) must
not be made unless the Director of Public Health has
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s. 129 No. Food 2002
certified that such a regulation is necessary as it relates to
an issue of public health and safety.
(3) A provision of a regulation referred to in
subsection (1) 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.
Regulations of savings or transitional nature
129. (1) The Governor may make regulations containing
provisions of a savings or transitional nature consequent
on the enactment of this Act.
(2) A provision referred to in subsection (1) may, if
the regulations so provide, take effect from the
commencement of this Act or a later day.
Council fees
130. A council, by resolution, may impose fees relating to
applications made to it under Part 7.
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2002 Food No. s. 131
PART 12 MISCELLANEOUS
Protection from liability
131. No liability attaches to
(a) the Crown, an enforcement agency, an
authorised officer or any other authority or
person engaged in the administration of this
Act; or
(b) a person employed by the Crown or an
enforcement agency to carry out analyses for
the purposes of this Act
for an honest act or omission in the exercise or discharge,
or purported exercise or discharge, of a power, function or
duty under this Act.
Bribery
132. A person must not give, procure, offer or promise any
bribe, recompense or reward to influence any person in the
exercise of functions or the performance of duties under
this Act.
Penalty: Fine not exceeding 500 penalty units.
Disclosure of information
133. A person must not disclose any information obtained
for the purpose of this Act relating to a person except in
accordance with any relevant regulations and
(a) with the written consent of the person to
whom the information relates; or
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s. 134 No. Food 2002
(b) to a person authorised by the Director of
Public Health; or
(c) for the purposes of legal proceedings arising
out of this Act; or
(d) for a purpose authorised or required by this
Act or another Act; or
(e) for the purposes of study or research approved
by the Director of Public Health.
Penalty: Fine not exceeding 50 penalty units.
Administration of Act
134. Until provision is made in relation to this Act by
order under section 4 of the Administrative Arrangements
Act 1990
(a) the administration of this Act is assigned to
the Minister for Health and Human Services;
and
(b) the department responsible to the Minister for
Health and Human Services in relation to the
administration of this Act is the Department of
Health and Human Services.
Savings and transitional provisions
135. (1) A food business operating in premises registered
under the repealed Act at the commencement of this Act
may continue to operate until the registration of the
premises under the repealed Act expires.
(2) A notice served under section 36 of the repealed
Act and in force immediately before the commencement of
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2002 Food No. s. 136
this Act is taken to be an improvement notice served under
section 59 of this Act.
(3) A notice under section 37 of the repealed Act and
in force immediately before the commencement of this Act
is taken to be a prohibition order served under section 62
of this Act.
(4) A laboratory authorised under section 43 of the
repealed Act immediately before the commencement of
this Act is taken to be approved under section 78 of this
Act.
(5) An application made in accordance with section
55 of the repealed Act but not finally determined under the
repealed Act before the commencement of this Act is to be
dealt with as if it were an application made under
section 87(2) of this Act.
Food Act 1998 repealed
136. The Food Act 1998 is repealed.
Consequential amendments
137. The legislation specified in Schedule 2 is amended as
specified in that Schedule.
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sch. 1 No. Food 2002
SCHEDULE 1 PROVISIONS WITH RESPECT TO
SEARCH WARRANTS
Section 41(6)
Applications for search warrants
1. (1) An application for a search warrant is to be made in
writing.
(2) A justice of the peace is not to issue a search
warrant unless
(a) the application for the search warrant sets out
the grounds for seeking the search warrant;
and
(b) the applicant for the search warrant has given
the justice of the peace, either orally or in
writing, any further information the justice of
the peace requires concerning the grounds for
seeking the search warrant; and
(c) the information given by the applicant is
verified before the justice of the peace on oath
or by affidavit.
Record of proceedings before justice of the peace
2. A justice of the peace who issues a search warrant is to
cause a record to be made of all relevant particulars of the
grounds the justice of the peace has relied on to justify the
issue of the search warrant.
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2002 Food No. sch. 1
Duty to show search warrants
3. An authorised officer executing a search warrant is to
produce the search warrant for inspection by an occupier
of the premises if requested to do so by that occupier.
Expiry of search warrants
4. A search warrant ceases to have effect
(a) on the date specified in the search warrant as
the date on which it ceases to have effect; or
(b) if it is withdrawn before that date by the
justice of the peace who issued the search
warrant; or
(c) after it has been executed; or
(d) if the person to whom it is issued ceases to be
an authorised officer
whichever first occurs.
Reports to justice of the peace on execution of
search warrants, &c.
5. (1) The authorised officer to whom a search warrant is
issued is to furnish a report in writing to the justice of the
peace who issued the search warrant
(a) stating whether or not the search warrant has
been executed; and
(b) if the search warrant has been executed,
setting out briefly the result of the execution of
the search warrant, including a brief
description of anything seized; and
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sch. 1 No. Food 2002
(c) if the search warrant has not been executed,
setting out briefly the reasons why the search
warrant has not been executed.
(2) A report with respect to a search warrant is to be
made within the period of 10 days immediately after the
execution of the search warrant or the expiry of the search
warrant, whichever first occurs.
Death, absence, &c., of justice of the peace who
issued search warrant
6. If the justice of the peace who issued a search warrant
has died, has ceased to be a justice of the peace or is
absent, a report required to be furnished to that justice of
the peace is to be furnished to another justice of the peace.
Defects in search warrants
7. A search warrant is not invalidated by any defect, other
than a defect that affects the substance of the search
warrant in a material particular.
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2002 Food No. sch. 2
SCHEDULE 2 CONSEQUENTIAL AMENDMENTS
Section 137
Agricultural and Veterinary Chemicals (Control
of Use) Act 1995
1. Section 3 is amended as follows:
(a) by omitting "declared under the Public Health
Act 1962, or under subsection (5)," from the
definition of "maximum permitted
concentration" in subsection (1) and
substituting "set out in any code, standard,
rule, specification or guideline adopted or
incorporated by regulations made under the
Food Act 2002 or declared under
subsection (5)";
(b) by omitting "declared under the Public Health
Act 1962, or under subsection (5)," from the
definition of "maximum residue limit" in
subsection (1) and substituting "set out in any
code, standard, rule, specification or guideline
adopted or incorporated by regulations made
under the Food Act 2002 or declared under
subsection (5)";
(c) by omitting paragraph (a) from subsection (6)
and substituting the following paragraph:
(a) a substance in respect of which the
maximum permitted concentration
or the maximum residue limit in
relation to that stock or
agricultural produce has not been
set out in any code, standard, rule,
specification or guideline adopted
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sch. 2 No. Food 2002
or incorporated by regulations
made under the Food Act 2002; or
2. Section 7(2) is amended by omitting "Public Health Act
1962" and substituting "Food Act 2002".
3. Section 10(1)(c) is amended by omitting "Public Health
Act 1962" and substituting "Food Act 2002".
4. Section 11(a) is amended by omitting "Public Health
Act 1962" and substituting "Food Act 2002".
5. Section 13(2) is amended by omitting "Public Health
Act 1962" and substituting "Food Act 2002".
6. Section 15(1)(d) is amended by omitting "Public Health
Act 1962" and substituting "Food Act 2002".
7. Section 20(3) is amended by omitting "Public Health
Act 1962" and substituting "Food Act 2002".
8. Section 27(2) is amended by omitting "Public Health
Act 1962" and substituting "Food Act 2002".
9. Section 31(8) is amended by omitting "Public Health
Act 1962" and substituting "Food Act 2002".
10. Section 37(3) is amended by omitting "Public Health
Act 1962" and substituting "Food Act 2002".
11. Section 48(1)(m)(ii) is amended by omitting "the
National Food Authority" and substituting "Food
Standards Australia New Zealand".
12. Section 56(4)(b) is amended by omitting "Public
Health Act 1962" and substituting "Food Act 2002".
13. Clause 3(1) of Schedule 4 is amended by omitting
"Public Health Act 1962" and substituting "Food Act 2002".
110
2002 Food No. sch. 2
Local Government Act 1993
1. Section 72(1A)(a) is amended by omitting "Food Act
1998" and substituting "Food Act 2002".
Poisons Act 1971
1. Section 5 is amended by omitting paragraph (c) and
substituting the following paragraphs:
(c) the Public Health Act 1997; and
(ca) the Food Act 2002; and
2. Section 93(6) is amended by omitting "the Public
Health Act 1962," and substituting "the Public Health Act
1997, the Food Act 2002".
Public Health Act 1997
1. Section 3 is amended by omitting the definition of
"food" and substituting the following definition:
"food" has the same meaning as in the Food Act
2002;
Public Health (Exemption) Order 2001
1. Clause 4 is amended by omitting "Food Act 1998" and
substituting "Food Act 2002".
Government Printer, Tasmania 111