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PARLIAMENT OF VICTORIA
Food Amendment (Regulation Reform) Bill 2009
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2--GENERAL AMENDMENTS 3
3 Definitions 3
4 Reference to proprietors of premises 4
5 New section 4H inserted 5
4H Reference in Food Standards Code to appropriate
enforcement agency 5
6 Application of Act to primary food production 5
7 New Part IA inserted 5
PART IA--ADMINISTRATION AND REPORTING 5
7A Role of councils 5
7B Role of Department 6
7C Annual report on food regulation 6
7D Information required to be provided by councils 7
7E Direction by the Minister 8
8 Compliance with Food Standards Code 9
9 Part III substituted 10
PART III--ORDERS 10
19 Orders relating to food premises 10
19A Orders relating to food vending machines and other
equipment 13
10 Heading to Part IIIA repealed 15
11 Powers with respect to unclean food handlers etc. 15
12 New section 19BA inserted 15
19BA Appeals against orders 15
561305B.I-10/6/2009 i BILL LA INTRODUCTION 10/6/2009
Clause Page
13 Part IIIB substituted 16
PART IIIB--FOOD SAFETY 16
Division 1--Classification of food premises 16
19C Declaration of classes of food premises 16
19CA Notice of intention to make or vary declaration of
classes of food premises 18
Division 2--Minimum record keeping 19
19CB Minimum record keeping 19
Division 3--Food safety programs 21
19D Food safety programs 21
19DB Registration of food safety program templates 21
19DC Standard food safety programs 22
19DD QA food safety program 22
19E Requirement for food safety program 23
19EA Revision of food safety program 24
19F Food safety program must be kept at premises 25
Division 4--Food safety supervisors 26
19G Food safety supervisors 26
19GA Requirement for food safety supervisor 26
19GB Name of supervisor to be provided on request 27
Division 5--Assessment and audit of food premises 27
19H Assessment and audit requirements for food premises 27
19HA Food safety assessments and food safety audits 29
19I Requirement for food safety assessment 30
19IA Deficiencies identified in food safety assessment by
registration authority 31
19J Food safety assessment conducted by food safety
auditor 32
19JA Deficiencies identified in food safety assessment by
food safety auditor 33
19K Requirement for food safety audit 35
19L Certificate of compliance following audit 35
19M Deficiencies identified in food safety audit 36
19N Food safety auditor to provide certain information to
registration authority 38
19NA Request by registration authority for copy of report
prepared by food safety auditor 39
561305B.I-10/6/2009 ii BILL LA INTRODUCTION 10/6/2009
Clause Page
Division 6--Food safety auditors 39
19O Only approved auditor may conduct audit 39
19P Certification of food safety auditors 40
19Q Auditor must comply with conditions of certification 41
19R Offence to impersonate approved auditor 41
19S Conflict of interest 41
19T Revocation of approval to act as an auditor 42
19U Audit by council staff 43
Division 7--Miscellaneous 43
19UA Council fees for assessments 43
19V Exemptions concerning food safety 45
19W Directions concerning food safety 46
14 Analysts 47
15 New heading of Division 1 of Part VI inserted 48
16 Sections 35, 36 and 37 substituted 48
35 Registration authority 48
35A Requirement to be registered or to notify registration
authority 49
35B Recognition of registration 50
36 Information required to be given to registration
authority 50
37 Notification requirement of Food Standards Code 51
17 Exemption from registration 52
18 New Division 2 of Part VI inserted 52
Division 2--Notification of premises exempt from
registration 52
38AA Procedure for notification 52
38AB Notification fee 53
19 New heading to Division 3 of Part VI inserted 54
20 Sections 38A, 38B and 39 substituted 54
38A Information required to accompany application for
registration or transfer of registration 54
38B Requirements for registration or transferral of
registration 56
38C Information required to accompany application for
renewal of registration 57
38D Requirements for renewal of registration 58
38E Conditional registration 59
38F Change in operation of registered food premises 61
39 Annual inspection of premises by registration authority 62
21 Registration etc. may be made despite minor defects 63
22 Certificates of registration 63
23 Period for which registration lasts 63
561305B.I-10/6/2009 iii BILL LA INTRODUCTION 10/6/2009
Clause Page
24 Revocation or suspension of registration 64
25 Registration fees 64
26 Section 43 substituted 65
43 Records of registration 65
27 New Part VIIIA inserted 66
PART VIIIA--PUBLICATION OF CONVICTIONS 66
53C References to appeal against conviction 66
53D Register of convictions 66
53E Publication of information on register 68
53F Information that must not be included in register 69
53G Obtaining information for inclusion in the register 70
53H Correction of register 72
53I Removal of record of conviction from register 72
53J Additional information 73
28 Secrecy 74
29 New section 58A substituted 75
58A Delegation by council 75
30 New section 58B inserted 75
58B Matters occurring outside registration area 75
31 Cost recovery in respect of failure to comply with direction or
notice 76
32 Heading to Part XII substituted 76
33 New Part XIII inserted 76
PART XIII--TRANSITIONAL AND SAVINGS
PROVISIONS FOR PART 2 OF THE FOOD
AMENDMENT (REGULATION REFORM) ACT 2009 76
64 Definitions 76
65 Minimum record keeping 77
66 Food safety program templates 77
67 Inspections 77
68 Audits 77
69 Food safety auditors 78
70 Registration and notification of food premises 78
71 Grounds for revocation or suspension of registration or
direction by the Secretary 78
72 Food (Forms and Registration) Regulations 2005 79
73 Register of convictions 79
74 First declaration under section 19C 79
75 Declarations made and exemptions granted before
commencement 80
76 Transitional regulations 80
561305B.I-10/6/2009 iv BILL LA INTRODUCTION 10/6/2009
Clause Page
PART 3--AMENDMENTS RELATING TO ENFORCEABLE
UNDERTAKINGS, SAMPLING REQUIREMENTS AND
INFRINGEMENT OFFENCES 81
34 New Part IIIA inserted 81
PART IIIA--UNDERTAKINGS 81
19BB Secretary may accept undertaking 81
19BC Consent orders and enforcement of undertaking 82
35 Duties of analysts 83
36 New section 31A inserted 83
31A Interstate analysts 83
37 Section 32 substituted 84
32 Councils to submit samples for analysis 84
38 New section 32A inserted 85
32A Sampling requirement declaration 85
39 New section 56A inserted 86
56A Infringements 86
40 Payment of penalties 87
41 Limitation on power to make local laws 88
42 New Schedule 1 inserted 88
SCHEDULE 1--Infringements 88
PART 4--AMENDMENTS RELATING TO SINGLE
NOTIFICATION OR REGISTRATION SCHEME 92
43 Definitions 92
44 New section 4G substituted 93
4G Food vending machines deemed to be food premises 93
45 Role of councils 93
46 Annual report on food regulation 93
47 Audit by council staff 93
48 Registration authority 93
49 Section 35A substituted 94
35A Requirement to be registered or to notify registration
authority 94
50 Repeal of section 35B 96
51 Registration etc. may be made despite minor defects 96
52 Registration fees 96
53 New Division 4 of Part VI inserted 96
Division 4--Single notification or registration scheme 96
43B Application of Division to areas of land not within
municipal district 96
43C Single notification or registration scheme 97
43D Principal premises of food business 98
561305B.I-10/6/2009 v BILL LA INTRODUCTION 10/6/2009
Clause Page
43E Declaration of requirements for notification or
registration 99
43F Notification or registration under the single
notification or registration scheme 100
43G Certificate of registration 101
43H Declaration of requirements for statement of trade 102
43I Statement of trade 103
54 Delegation by council officers 105
55 Matters occurring outside registration area 105
56 New section Part XIV inserted 106
PART XIV--TRANSITIONAL AND SAVINGS
PROVISIONS FOR PART 4 OF FOOD AMENDMENT
(REGULATION REFORM) ACT 2009 106
77 Definitions 106
78 Temporary food premises, mobile food premises or
food vending machine currently registered 106
79 Temporary food premises, mobile food premises or
food vending machine for which notification has
been given 106
57 Schedule 1 107
PART 5--REPEAL OF AMENDING ACT 108
58 Repeal of amending Act 108
ENDNOTES 109
561305B.I-10/6/2009 vi BILL LA INTRODUCTION 10/6/2009
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Food Amendment (Regulation Reform)
Bill 2009
A Bill for an Act to amend the Food Act 1984 to reform the
regulatory framework under the Act and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The purpose of this Act is to amend the Food Act
1984 to--
5 (a) achieve greater consistency and
accountability in the governance of the food
regulatory system by--
(i) articulating the respective roles and
responsibilities of the different
10 regulators; and
561305B.I-10/6/2009 1 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 1--Preliminary
s. 2
(ii) enshrining a statutory role for the
Department of Human Services of
providing guidance and leadership to
councils in relation to the regulation of
5 food businesses; and
(iii) mandating the collection and
publication of data relating to the
regulation of food businesses; and
(b) better target regulatory requirements to food
10 safety risk; and
(c) facilitate enforcement of the Act by
providing more flexible regulatory
mechanisms.
2 Commencement
15 (1) This Act (except Parts 2, 3 and 4) comes into
operation on the day after the day on which this
Act receives the Royal Assent.
(2) Subject to subsection (5), Part 2 comes into
operation on a day or days to be proclaimed.
20 (3) Subject to subsection (6), Part 3 comes into
operation on a day or days to be proclaimed.
(4) Subject to subsection (7), Part 4 comes into
operation on a day to be proclaimed.
(5) If a provision referred to in subsection (2) does
25 not come into operation before 1 July 2010, it
comes into operation on that date.
(6) If a provision referred to in subsection (3) does
not come into operation before 1 March 2011, it
comes into operation on that date.
30 (7) If Part 4 does not come into operation before
1 July 2011, it comes into operation on that date.
__________________
561305B.I-10/6/2009 2 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 3
PART 2--GENERAL AMENDMENTS
3 Definitions
In section 4(1) of the Food Act 1984-- See:
Act No.
10082.
(a) in the definition of authorized officer, for Reprint No. 7
5 paragraph (e) substitute-- as at
30 January
"(e) in relation to a food premises on land 2006
and
that is not part of a municipal district, amending
the Secretary; or"; Act Nos
97/2005,
(b) omit the definition of declared premises; 80/2006 and
46/2008.
LawToday:
10 (c) omit the definition of food safety program www.
audit; legislation.
vic.gov.au
(d) for the definition of food safety program
template substitute--
"food safety program template means a
15 written document that contains a set of
instructions to enable the proprietor of a
food business to create a food safety
program that complies with
section 19D;";
20 (e) in the definition of registration authority for
"sections 35 and 36" substitute "section 35";
(f) in the definition of standard food safety
program for "19DC" substitute "19DC(1)";
(g) insert the following definitions--
25 "chief executive officer, of a council, means
the person appointed by the council to
be its chief executive officer or any
person acting in that position;
561305B.I-10/6/2009 3 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 4
Director of Consumer Affairs means the
person who, for the time being, is
employed as Director of Consumer
Affairs Victoria under the Public
5 Administration Act 2004;
food safety assessment has the meaning
given by section 19HA(1);
food safety audit has the meaning given by
section 19HA(2);
10 mobile food premises means a food premises
that is a vehicle;
non-standard food safety program means a
food safety program that is not a
standard food safety program;
15 QA food safety program has the meaning
given by section 19DD(2);
temporary food premises means a food
premises that is--
(a) a tent, stall or other structure that
20 is not permanently fixed to a site;
or
(b) a permanent structure not owned
or leased by the food business that
operates the premises and in
25 which food is handled for sale or
from which food is sold by that
business on an occasional basis
only;".
4 Reference to proprietors of premises
30 In section 4F of the Food Act 1984 omit
"declared premises,".
561305B.I-10/6/2009 4 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 5
5 New section 4H inserted
After section 4G of the Food Act 1984 insert--
"4H Reference in Food Standards Code to
appropriate enforcement agency
5 For the purposes of any provision of this Act
which applies the Food Standards Code, a
reference in Standard 3.1.1 of that code to an
appropriate enforcement agency is taken to
be a reference to the registration authority.".
10 6 Application of Act to primary food production
In section 6A(2) of the Food Act 1984 for
"sections 19 and 19B" substitute "Part III".
7 New Part IA inserted
After Part I of the Food Act 1984 insert--
15 "PART IA--ADMINISTRATION AND
REPORTING
7A Role of councils
The role of a council under this Act is to--
(a) carry out the powers and functions
20 vested in it under this Act in
accordance with the requirements of
this Act;
(b) promote the objectives of this Act;
(c) cooperate with other councils and the
25 Department in relation to the
administration of this Act;
(d) ensure, to the extent appropriate, that
the administration of this Act by the
council is consistent with the
30 administration of this Act throughout
Victoria by other councils.
561305B.I-10/6/2009 5 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 7
7B Role of Department
The role of the Department under this Act is
to--
(a) facilitate the exercise of the powers and
5 functions of the Secretary under this
Act;
(b) promote the objects of this Act and the
consistent administration of this Act by
providing information and guidance to
10 councils, authorized officers and food
safety auditors;
(c) publish an annual report on food
regulation.
7C Annual report on food regulation
15 (1) For each calendar year the Department must
publish an annual report on food regulation.
(2) The annual report must contain the following
information--
(a) statistics relating to the registration of
20 food premises under this Act by the
Secretary and each council including--
(i) the number of newly registered
food premises;
(ii) the number of food premises for
25 which registration was renewed;
(iii) the number of registrations under
each class of registration;
(iv) the number of food premises for
which registration under this Act
30 was revoked or suspended;
(b) statistics relating to the analysis of food
samples submitted by each council
under section 32;
561305B.I-10/6/2009 6 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 7
(c) statistics relating to the enforcement
action taken by the Secretary and each
council under this Act including--
(i) the number and nature of
5 infringement notices issued;
(ii) the number of prosecutions and
the nature of the alleged offences;
(iii) the number of cases that resulted
in either a conviction or a finding
10 of guilt;
(iv) the nature of any sentences or
other orders imposed by the court;
(d) a copy of any direction given by the
Minister under section 7E and the
15 action taken by councils in response to
the direction.
7D Information required to be provided by
councils
(1) The Secretary may, by notice published in
20 the Government Gazette, declare--
(a) the information that a council is
required to provide to the Department
relating to the administration of this
Act; and
25 (b) the intervals at which the information is
required to be provided; and
(c) the format or manner in which the
information is required to be provided.
(2) Before making a declaration under
30 subsection (1), or making a substantial
amendment to the declaration, the Secretary
must consult with a body that represents
local government.
561305B.I-10/6/2009 7 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 7
(3) A council must comply with a declaration
made under subsection (1).
7E Direction by the Minister
(1) The Minister may give a written direction to
5 a council, or the chief executive officer of
the council, in relation to any matter
concerning the administration of this Act by
the council.
(2) The Minister may give a written direction to
10 a class of councils, or each chief executive
officer of a class of councils, in relation to
any matter concerning the administration of
this Act by the councils.
(3) The Minister may only give a direction under
15 this section if the Minister considers that the
direction--
(a) is in the public interest; and
(b) will promote the objectives of this Act
or the consistent administration of this
20 Act.
(4) A direction under subsection (1) must not be
given in relation to the decision under this
Act by a council or an authorized officer
with respect to a particular food premises or
25 a particular proprietor.
(5) Unless the Minister considers that a direction
is required as a matter of urgency, before
giving a direction under this section, the
Minister must ensure that--
30 (a) if the direction is to be given under
subsection (1), the council or the chief
executive officer has been provided
with a draft of the direction and been
given an opportunity to comment; or
561305B.I-10/6/2009 8 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 8
(b) if the direction is to be given under
subsection (2), either--
(i) each council or chief executive
officer has been provided with a
5 draft of the direction and been
given an opportunity to comment;
or
(ii) a body that represents local
government has been provided
10 with a draft of the direction and
been given an opportunity to
comment.
(6) If a council, or the chief executive officer of
a council, is given a direction under
15 subsection (1), a copy of the direction must
be published in the annual report required to
be published by the council under
section 131 of the Local Government Act
1989.
20 __________________".
8 Compliance with Food Standards Code
After the penalty at the foot of section 16(1) of the
Food Act 1984 insert--
"Note
25 Under section 37, a person complies with the requirements
of the Food Standards Code relating to notification if an
application for the registration of a food premises is made,
or notification of its operation is given, in accordance with
Part VI.".
561305B.I-10/6/2009 9 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 9
9 Part III substituted
For Part III of the Food Act 1984 substitute--
"PART III--ORDERS
19 Orders relating to food premises
5 (1) This section applies if the relevant authority
is satisfied from the report of an authorized
officer that--
(a) a food premises is in an unclean or
unsanitary condition or in a state of
10 disrepair; or
(b) food being prepared, sold or otherwise
handled at a food premises is unsafe or
unsuitable; or
(c) food is prepared, sold or otherwise
15 handled at a food premises in a manner
that makes it likely the food is unsafe or
unsuitable.
(2) The relevant authority may by written order
direct that, within a specified time, either or
20 both of the following things must be done--
(a) the food premises must be put into a
clean and sanitary condition or be
altered or improved to the satisfaction
of an authorized officer;
25 (b) specified steps must be taken to ensure
that food prepared, sold or otherwise
handled at the food premises is safe and
suitable.
(3) The relevant authority may in an order made
30 under subsection (2) or in a subsequent
written order direct that until the matters
referred to in subsection (2) are complied
with--
561305B.I-10/6/2009 10 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 9
(a) the food premises must not be kept or
used for the sale, or the handling for
sale, of any food; or
(b) the food premises must not be kept or
5 used for the preparation of food; or
(c) the food premises must not be used for
a specified purpose or for the use of any
specified equipment or a specified
process.
10 (4) If an order under this section includes a
direction under subsection (3)(a) or (3)(b)--
(a) in any case--
(i) the relevant authority may direct
that a copy of the order be affixed
15 to a conspicuous part of the
premises in such a manner that the
order can be read by a member of
the public from outside the
premises; and
20 (ii) the relevant authority may, by
notice published in a newspaper or
by any other means, inform the
general public that the order has
been made and the terms of the
25 order;
(b) if the relevant authority is a council or a
chief executive officer, the relevant
authority must notify the Department of
the making of the order;
30 (c) if the relevant authority is not the
registration authority for the premises,
the relevant authority must notify the
registration authority of--
(i) the making of the order; and
561305B.I-10/6/2009 11 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 9
(ii) any appeal made under section
19BA against the order and the
outcome of the appeal.
Note
5 Under section 43(2) the record of registration
maintained by the registration authority in
respect of a food premises must include the
details of any order in force under this section
that includes a direction under subsection (3)(a)
10 or (b) in relation to the premises.
(5) An order under this section takes effect--
(a) when it is given to or served on the
proprietor of the food premises; or
(b) if the name and address of the
15 proprietor is unknown, when it is
affixed to the premises.
(6) If satisfied that an order made under this
section has been complied with, the relevant
authority must--
20 (a) revoke the order; and
(b) give written notice of the revocation of
the order in the same manner in which
the order was given or served.
(7) A person must not contravene an order made
25 under this section.
Penalty: 120 penalty units.
(8) A person must not remove the copy of an
order affixed to a food premises under
subsection (4)(a)(i) while that order remains
30 in force.
Penalty: 60 penalty units.
561305B.I-10/6/2009 12 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 9
(9) For the purposes of this section, relevant
authority means any one of the following--
(a) the Secretary;
(b) the council that is the registration
5 authority for the premises;
(c) if the premises is a temporary food
premises or a mobile food premises, the
council of the municipal district in
which the premises is being operated;
10 (d) the chief executive officer of a council
referred to in paragraph (b) or (c).
19A Orders relating to food vending machines
and other equipment
(1) This section applies if an authorized officer
15 is satisfied that a food vending machine or
other equipment is in an unclean or
unsanitary condition, or in a state of
disrepair.
(2) The authorized officer may by written order
20 direct that, by a specified time, the food
vending machine or other equipment be put
into a clean and sanitary condition or be
altered or improved to the satisfaction of the
authorized officer.
25 (3) An authorized officer may in an order made
under subsection (2) or in a subsequent
written order, direct that until the matters
referred to in subsection (2) are complied
with--
30 (a) the food vending machine must not be
kept or used for the sale or the storing,
serving or supplying for sale of--
(i) any food; or
(ii) food specified in the order; or
561305B.I-10/6/2009 13 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 9
(b) the equipment must not be used in or in
connection with the sale, or the
handling for sale, of any food or the
cleaning of any other equipment.
5 (4) If an authorized officer makes an order that
includes a direction under subsection
(3)(a)(i), the authorized officer--
(a) may affix a copy of the order to a
conspicuous part of the machine in such
10 a manner that the order can be read by a
member of the public; and
(b) must notify the registration authority
of--
(i) the making of the order; and
15 (ii) any appeal made under section
19BA against the order and the
outcome of the appeal.
Note
Under section 43(2), the record of registration
20 maintained by the registration authority in
respect of a food vending machine must include
the details of any order in force under this
section that includes a direction under
subsection (3)(a)(i) in relation to the machine.
25 (5) An order under this section takes effect--
(a) when it is given to or served on the
proprietor of the food vending machine
or equipment; or
(b) if the name and address of the
30 proprietor is unknown, when it is
affixed to a conspicuous part of the
machine or equipment.
(6) If satisfied that an order made under this
section has been complied with, the
35 authorized officer must--
561305B.I-10/6/2009 14 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 10
(a) revoke the order; and
(b) give written notice of the revocation of
the order in the same manner in which
the order was given or served.
5 (7) A person must not contravene an order made
under this section.
Penalty: 120 penalty units.
(8) A person must not remove the copy of an
order affixed to a food vending machine
10 under subsection (4)(a) while that order
remains in force.
Penalty: 60 penalty units.
__________________".
10 Heading to Part IIIA repealed
15 The heading to Part IIIA of the Food Act 1984 is
repealed.
11 Powers with respect to unclean food handlers etc.
(1) For the heading to section 19B of the Food Act
1984 insert--
20 "Orders relating to food handlers".
(2) Sections 19B(4), 19B(5) and 19B(6) of the Food
Act 1984 are repealed.
12 New section 19BA inserted
After section 19B of the Food Act 1984 insert--
25 "19BA Appeals against orders
(1) Any person who is aggrieved by an order
made under this Part may, within 21 days
after the order is made, appeal to the
Magistrates' Court.
561305B.I-10/6/2009 15 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 13
(2) On an appeal under subsection (1), the court
must--
(a) reconsider the decision of the person
who made the order; and
5 (b) hear any relevant evidence tendered
by--
(i) the person aggrieved; or
(ii) the person who made the order.
(3) If notice of an order has been published
10 under section 19(4)(a)(ii) and the order is
varied or revoked by the court, the person
who made the order must give notice of the
variation or revocation of the order to the
general public in the same manner as the
15 original notice.
(4) The costs of, and incidental to, an appeal
under subsection (1) are in the discretion of
the Magistrates' Court.".
13 Part IIIB substituted
20 For Part IIIB of the Food Act 1984 substitute--
'PART IIIB--FOOD SAFETY
Division 1--Classification of food premises
19C Declaration of classes of food premises
(1) The Secretary may, by notice published in
25 the Government Gazette, declare classes of
food premises having regard to--
(a) the food handling activities undertaken
at the premises and in particular the
degree of risk associated with those
30 activities;
561305B.I-10/6/2009 16 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 2--General Amendments
s. 13
(b) the nature of the food business
operating from the premises;
(c) any other relevant considerations.
(2) For each declared class of food premises, the
5 Secretary may specify--
(a) whether food premises of that class are
required--
(i) to keep the minimum records
required under Division 2; or
10 (ii) to have a food safety program;
(b) whether food premises of that class are
required to have a food safety
supervisor;
(c) whether food premises of that class are
15 exempt from the requirement under
section 39 to be inspected annually.
(3) In addition, for any declared class of food
premises required to have a food safety
program, the Secretary must specify --
20 (a) the type of food safety program or
types of food safety program that may
be used for the premises; and
(b) the requirements for the audit or
assessment of the premises as provided
25 in section 19H.
(4) A declaration, or a variation to a declaration,
under this section may only be made after
the Secretary has complied with
section 19CA.
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19CA Notice of intention to make or vary
declaration of classes of food premises
(1) If the Secretary intends to make or vary a
declaration under section 19C, notice of the
5 Secretary's intention must be published in--
(a) the Government Gazette; and
(b) a newspaper circulating generally in
Victoria.
(2) The notice must state--
10 (a) the proposed declaration or variation to
the declaration; and
(b) that submissions may be made to the
Secretary regarding the proposed
declaration or variation within a period
15 of at least 60 days specified in the
notice; and
(c) if subsection (4) applies, that the
proposed declaration or variation takes
effect immediately pending the
20 consideration of submissions by the
Secretary.
(3) After considering any submissions made in
response to the notice, the Secretary must--
(a) make the declaration or the variation to
25 the declaration as originally notified or
with any modifications the Secretary
considers necessary; or
(b) state in a notice published in the
Government Gazette that the Secretary
30 will not be proceeding with the
declaration or variation notified under
subsection (2).
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(4) If the Secretary is satisfied that there are
urgent reasons for making a declaration or
variation to a declaration, a notice given
under this section may specify that the
5 proposed declaration or variation takes effect
immediately.
(5) If subsection (4) applies, the proposed
declaration or variation remains in effect for
6 months unless, in the meantime, the
10 Secretary--
(a) makes a declaration under section 19C
giving effect to the proposed
declaration or variation as originally
notified or with modifications; or
15 (b) gives notice under subsection (3)(b)
that the declaration or variation is not
proceeding.
Division 2--Minimum record keeping
19CB Minimum record keeping
20 (1) The Secretary may declare, by notice
published in the Government Gazette, the
record keeping requirements for food
premises that are required by a declaration
under section 19C to keep minimum records.
25 (2) The notice must specify--
(a) the records that must be kept; and
(b) the period for which the records must
be kept.
(3) The Secretary may specify in the notice
30 different minimum record keeping
requirements for different food premises
depending on--
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(a) the declared class of food premises to
which the premises belong;
(b) the food handling activities undertaken
at the premises.
5 (4) The proprietor of a food premises required to
keep minimum records must--
(a) maintain the records as required by the
notice, including keeping the records
for the duration required in the notice;
10 and
(b) if requested to do so by the registration
authority, provide to the registration
authority a copy of the records within
the time specified in the request.
15 (5) A failure to comply with subsection (4) is a
ground for--
(a) the refusal of the registration, renewal
of registration or transfer of registration
of the premises;
20 (b) the revocation or suspension of
registration of the premises.
(6) The proprietor of a food premises required to
keep minimum records must ensure that the
required records are kept at the premises to
25 which they relate.
Penalty: 20 penalty units for a natural
person;
100 penalty units for a body
corporate.
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Division 3--Food safety programs
19D Food safety programs
A food safety program for a food premises is
a written document that--
5 (a) systematically identifies the potential
hazards that may be reasonably
expected to occur in each food handling
operation that is to be, or that is being,
conducted at the premises;
10 (b) specifies where, in a food handling
operation, each hazard identified under
paragraph (a) can be controlled and the
means of control;
(c) provides for the systematic monitoring
15 of those controls;
(d) provides for appropriate corrective
action when each hazard indentified
under paragraph (a) is found not to be
under control;
20 (e) provides for the regular review of the
program by the proprietor of the food
premises;
(f) provides for appropriate records to be
made and kept by the proprietor of the
25 food premises demonstrating action
taken in relation to, or in compliance
with, the food safety program.
19DB Registration of food safety program
templates
30 (1) The Secretary may register a food safety
program template by publishing a notice in
the Government Gazette--
(a) stating that the template is registered
for use; and
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(b) specifying the classes or categories of
food businesses in respect of which the
template is suitable for use.
(2) The notice must contain sufficient detail to
5 enable the food safety program template to
which it refers to be readily identified.
(3) If the Secretary revokes the registration of a
food safety program template, any standard
food safety program that was created using
10 the template before the template was revoked
ceases to be a standard food safety program
on the date of expiry of the registration of the
premises to which the standard food safety
program relates.
15 19DC Standard food safety programs
(1) A standard food safety program is a food
safety program for a food premises that has
been created using a registered food safety
program template.
20 (2) The standard food safety program must
comply with the following conditions--
(a) the program must be created in
accordance with the instructions set out
in the food safety program template;
25 and
(b) the food safety program template must
be registered under section 19DB as
suitable for use in respect of the class or
category of food business that is being
30 carried out at, on or from the food
premises.
19DD QA food safety program
(1) The Secretary may, by notice published in
the Government Gazette, declare that a
35 specified quality assurance system or code
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may be used to develop a food safety
program.
(2) A QA food safety program is a food safety
program for a food premises that has been
5 issued with a certificate by an approved food
safety auditor stating that the program--
(a) has been developed--
(i) under a quality assurance system
or code specified in a declaration
10 under subsection (1); and
(ii) in accordance with the purpose
and terms of that system or code;
and
(b) meets all the requirements under
15 section 19D.
(3) A certificate under subsection (2) remains in
force for the audit interval applying to the
food premises under section 19H.
19E Requirement for food safety program
20 (1) The proprietor of a food premises required
by a declaration under section 19C to have a
food safety program must--
(a) ensure that there is a food safety
program for the premises that meets the
25 requirements of section 19D;
(b) ensure that the food safety program is
of the type permitted by a declaration
under section 19C to be used by the
premises;
30 (c) comply with the food safety program;
(d) if requested to do so by the registration
authority, provide to the registration
authority a copy of the food safety
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program for the premises within the
time specified in the request.
(2) The proprietor of a food premises complies
with subsection (1)(a) if the proprietor
5 uses--
(a) a standard food safety program for the
premises that complies with section
19DC(2); or
(b) a QA food safety program for the
10 premises.
(3) If a certificate issued by a food safety auditor
states that at the date of the audit--
(a) a food safety program for a premises
meets the requirements of section 19D;
15 or
(b) a standard food safety program for a
premises complies with section
19DC(2)--
the proprietor of the premises is taken to be
20 complying with subsection (1)(a) on that
date.
(4) A failure to comply with subsection (1) is a
ground for--
(a) the refusal of the registration, renewal
25 of registration or transfer of registration
of the premises;
(b) the revocation or suspension of
registration of the premises.
19EA Revision of food safety program
30 (1) This section applies if there is a change in
the activities carried out at a food premises
required by a declaration under section 19C
to have a food safety program.
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(2) The proprietor must ensure that the food
safety program for the premises is reviewed
and, if necessary, revised to enable it to
continue to meet the requirements of
5 section 19D.
(3) If the proprietor of a food premises is
required under section 38A(6) or 38A(7) to
provide a food safety program to the
registration authority with an application for
10 registration or transfer of registration, the
proprietor must give the registration
authority a copy of any significant revision
that is made to the food safety program
within 14 days after the revision is made.
15 (4) A failure to comply with subsection (2)
or (3) is a ground for--
(a) the refusal of the renewal of the
registration of the premises;
(b) the revocation or suspension of
20 registration of the premises.
19F Food safety program must be kept at
premises
The proprietor of a food premises required
by a declaration under section 19C to have a
25 food safety program must ensure that the
food safety program is kept at the premises
to which it relates.
Penalty: 20 penalty units for a natural
person;
30 100 penalty units for a body
corporate.
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Division 4--Food safety supervisors
19G Food safety supervisors
(1) A food safety supervisor is a person who, in
relation to a food premises--
5 (a) knows how to recognise, prevent and
alleviate the hazards associated with the
handling of food at, or from, that
premises; and
(b) has met an appropriate food safety
10 competency standard for premises of
the same nature as the premises; and
(c) has the ability and the authority to
supervise other people handling food at,
or from, the premises and to ensure that
15 that handling is done safely.
(2) In this section, food safety competency
standard means a food safety competency
standard approved in writing by the
Secretary or by a relevant State, national or
20 international statutory or regulatory body.
(3) The regulations may specify who the
relevant body is in a particular case or set of
circumstances.
19GA Requirement for food safety supervisor
25 (1) Subject to subsection (2), the proprietor of a
food premises required by a declaration
under section 19C to have a food safety
supervisor must ensure that there is a food
safety supervisor for the premises.
30 (2) A food safety supervisor is not required for a
food premises for which a QA food safety
program is used that includes competency
based or accredited training for staff of the
premises.
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(3) The food safety supervisor for a premises
may be the proprietor of the premises.
(4) A failure to comply with this section is a
ground for--
5 (a) the refusal of the registration, renewal
of registration or transfer of registration
of the food premises;
(b) the revocation or suspension of
registration of the food premises.
10 19GB Name of supervisor to be provided on
request
The proprietor of a food premises that is
required under section 19GA(1) to have a
food safety supervisor must give the
15 registration authority written details of the
name and qualifications of the current food
safety supervisor for the premises within
7 days of being asked in writing to do so by
the registration authority.
20 Penalty: 20 penalty units for a natural
person;
100 penalty units for a body
corporate.
Division 5--Assessment and audit of food
25 premises
19H Assessment and audit requirements for
food premises
(1) This section applies if a class of food
premises is declared under section 19C and,
30 under the declaration, food premises of that
class are required to have a food safety
program.
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(2) The declaration may specify for each type of
food safety program permitted to be used by
the food premises--
(a) whether food safety assessments of the
5 food premises are required to be
conducted and, if so, the frequency and
timing of the assessments;
(b) whether food safety audits of the food
premises are required to be conducted
10 and, if so, the frequency and timing of
the audits.
(3) The declaration may specify the
circumstances in which a food safety
assessment may be conducted by a food
15 safety auditor.
(4) For the purposes of subsection (2), the
declaration may specify--
(a) default requirements relating to the
frequency and timing of the
20 assessments or audits; and
(b) the range of frequencies and intervals
that otherwise may be applied by the
registration authority for any particular
food premises.
25 (5) In determining the frequency and intervals of
the assessments and audits that are to apply
to a food premises for the purposes of
subsection (4)(b), the registration authority
must take into account--
30 (a) the food safety performance of the food
business operating from the premises;
Example
The registration authority may take into account
past failures by the proprietor of the food
35 business to comply with food safety programs
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or any other relevant requirements of this Act
(including the Food Standards Code) or the
regulations.
(b) any guidelines issued by the Secretary
5 in a notice published in the Government
Gazette for this purpose.
19HA Food safety assessments and food safety
audits
(1) A food safety assessment is an assessment of
10 a food premises conducted for the purposes
of this Act to determine--
(a) whether the food safety requirements
applying to the premises have been
complied with; and
15 (b) in the case of a premises using a
standard food safety program, whether
the food safety program complies with
section 19DC(2).
Note
20 Under section 19DC(2), a standard food safety
program must be created using a food safety
program template registered under section
19DB as suitable for the food business being
carried out at, on or from the food premises and
25 the food safety program must be created in
accordance with the instructions set out in the
template.
(2) A food safety audit is an audit of a food
premises conducted for the purposes of this
30 Act to determine--
(a) whether the food safety requirements
applying to the premises have been
complied with; and
(b) whether the food safety program for the
35 premises is adequate.
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(3) For the purposes of a food safety assessment
or food safety audit conducted under this
Division--
(a) the food safety requirements applying
5 to a food premises have been complied
with if--
(i) the food safety program for the
premises has been complied with
during the period covered by the
10 applicable food safety assessment
or food safety audit; and
(ii) if relevant, appropriate action has
been taken to remedy any
deficiencies identified in any
15 previous food safety assessment or
food safety audit; and
(iii) the applicable provisions of the
Food Safety Standards are being
complied with; and
20 (b) a food safety program is adequate if it
meets the requirements specified in
section 19D.
19I Requirement for food safety assessment
(1) This section applies to a food premises that
25 is required by a declaration under section
19C to have a food safety assessment
conducted.
(2) Subject to section 19J, a food safety
assessment of the premises must be
30 conducted by the registration authority as
required under section 19H.
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(3) A food safety assessment conducted under
this section by the registration authority is an
inspection for the purposes of this Act.
19IA Deficiencies identified in food safety
5 assessment by registration authority
(1) This section applies if the registration
authority is of the opinion, after conducting a
food safety assessment of a food premises,
that--
10 (a) the food safety requirements applying
to the premises have not been complied
with; or
(b) in the case of a food premises using a
standard food safety program, the food
15 safety program does not comply with
section 19DC(2).
(2) Subject to subsection (3), the registration
authority must give written notice to the
proprietor of the food premises--
20 (a) stating that opinion and the reasons for
the opinion; and
(b) identifying the deficiencies that need to
be remedied; and
(c) advising that the deficiencies must be
25 remedied--
(i) in the case where the registration
authority is of the opinion that a
serious threat to public health
exists on the food premises, as
30 soon as practicable; or
(ii) in any other case, within the
period specified in the notice.
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(3) A notice under subsection (2) is not required
if the registration authority has taken other
appropriate action in relation to the
deficiencies.
5 Example
The registration authority has made an order under
Part III in relation to the deficiencies.
(4) A failure to comply with a notice given by
the registration authority under subsection
10 (2) is a ground for--
(a) the refusal of the registration, renewal
or registration or transfer of registration
of the food premises;
(b) the revocation or suspension of
15 registration of the food premises.
19J Food safety assessment conducted by food
safety auditor
(1) This section applies if--
(a) a food premises is required by a
20 declaration made under section 19C to
have a food safety assessment
conducted; and
(b) under the declaration, the assessment
may be conducted by a food safety
25 auditor; and
(c) at the time of the registration of the
food premises, the proprietor has
elected to have the assessment
conducted by a food safety auditor.
30 (2) The proprietor of the food premises must
ensure that a food safety assessment of the
premises is conducted as required under
section 19H by a food safety auditor.
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(3) A failure to comply with subsection (2) is a
ground for--
(a) the refusal of the registration, renewal
of registration or transfer of registration
5 of the premises;
(b) the revocation or suspension of
registration of the premises.
(4) If a food safety auditor is of the opinion,
after conducting a food safety assessment of
10 a food premises, that--
(a) the food safety requirements applying
to the premises have been complied
with; or
(b) in the case of a food premises using a
15 standard food safety program, the food
safety program complies with
section 19DC(2)--
the auditor must give the proprietor of the
premises a certificate confirming that
20 opinion.
19JA Deficiencies identified in food safety
assessment by food safety auditor
(1) This section applies if a food safety auditor
is of the opinion, after conducting a food
25 safety assessment of a food premises, that--
(a) the food safety requirements applying
to the premises have not been complied
with; or
(b) in the case of a food premises using a
30 standard food safety program, the food
safety program does not comply with
section 19DC(2).
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(2) The auditor must give written notice to the
proprietor of the premises--
(a) stating that opinion and the reasons for
the opinion; and
5 (b) identifying the deficiencies that need to
be remedied; and
(c) advising that the deficiencies must be
remedied--
(i) in the case where the auditor is of
10 the opinion that a serious threat to
public health exists on the food
premises, as soon as practicable;
or
(ii) in any other case, within the
15 period specified in the notice.
(3) Within 14 days of the expiry of the period
specified in the notice, the food safety
auditor must check to see whether the
deficiencies have been remedied.
20 (4) Sections 19M(6), 19M(7) and 19M(8) apply
to the assessment as if it were an audit and
the reference in section 19M(7)(a) to
subsections (2)(b) and (2)(c) of that section
were a reference to subsections (2)(b) and
25 (2)(c) of this section.
(5) Despite subsection (4), a certificate given to
the proprietor of a food premises in relation
to a food safety assessment conducted under
this section does not need to address the
30 adequacy of the food safety program for the
premises.
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19K Requirement for food safety audit
(1) The proprietor of a food premises that is
required by a declaration under section 19C
to have a food safety audit conducted must
5 ensure that a food safety audit of the
premises is conducted--
(a) as required under section 19H; and
(b) by an approved food safety auditor
whose certificate under section 19P
10 states that he or she is competent to
conduct an audit of food premises of
the class or of a category to which the
premises belongs.
(2) A failure to comply with subsection (2) is a
15 ground for--
(a) the refusal of the registration, renewal
of registration or transfer of registration
of the premises;
(b) the revocation or suspension of
20 registration of the premises.
19L Certificate of compliance following audit
If a food safety auditor is of the opinion,
after conducting a food safety audit of a food
premises, that--
25 (a) the food safety requirements applying
to the premises have been complied
with; and
(b) the food safety program for the
premises is adequate--
30 the food safety auditor must give the
proprietor of the premises a certificate
confirming that opinion.
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19M Deficiencies identified in food safety audit
(1) This section applies if a food safety auditor
is of the opinion, after conducting a food
safety audit of a food premises, that--
5 (a) the food safety requirements applying
to the premises have not been complied
with; or
(b) the food safety program is not
adequate.
10 (2) Subject to subsections (4) and (7), the
auditor must give written notice to the
proprietor of the food premises--
(a) stating that opinion and the reasons for
the opinion; and
15 (b) identifying the deficiencies that need to
be remedied; and
(c) advising that the deficiencies must be
remedied within the time specified in
the notice.
20 (3) Within 14 days of the expiry of the period
specified in the notice, the auditor must
check to see whether the deficiencies have
been remedied.
(4) If--
25 (a) the food safety audit has been
conducted by the registration authority;
and
(b) an order has been made under Part III
in relation to the deficiencies--
30 a notice under section (2) is not required to
be given but the auditor must within 14 days
after the time allowed for compliance with
the order check to see whether the
deficiencies have been remedied.
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(5) If a notice under subsection (2) is given by
the registration authority, failure to comply
with the notice is a ground for--
(a) the refusal of the registration, renewal
5 or registration or transfer of registration
of the food premises;
(b) the revocation or suspension of
registration of the food premises.
(6) If a deficiency identified in the audit has
10 been remedied, the auditor must describe the
deficiency in any certificate given to the
proprietor under subsection (8).
(7) If, in the opinion of the auditor, a particular
food safety requirement applying to the
15 premises has not been complied with and it
is no longer possible to remedy the
deficiency, the auditor--
(a) need not comply with
subsections (2)(b) and (c) in relation to
20 the deficiency, but must still comply
with section 19N(3) if it is relevant to
the deficiency; and
(b) must describe the deficiency in any
certificate given to the proprietor under
25 subsection (8) and any notice given to
the registration authority under
section 19N(4).
(8) If all the deficiencies that could be remedied
have been remedied, the auditor must give
30 the proprietor a certificate stating that,
despite deficiencies occurring during the
audit period--
(a) in the opinion of the auditor, the food
safety program for the premises is now
35 adequate; and
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(b) any deficiencies relating to the food
safety requirements applying to the
premises that could be remedied have
now been remedied.
5 19N Food safety auditor to provide certain
information to registration authority
(1) This section applies if a food safety
assessment or a food safety audit of a food
premises has been conducted by a food
10 safety auditor who is not an officer or a
member of the staff of the registration
authority.
(2) Within 14 days after a certificate is given to
the proprietor of the food premises under
15 section 19J, 19L or 19M, the food safety
auditor must give a copy of the certificate to
the registration authority.
(3) If the auditor is of the opinion--
(a) that the food safety requirements
20 applying to the premises have not been
complied with or the food safety
program is inadequate or, in the case of
a food premises using a standard food
safety program, the program does not
25 comply with section 19DC(2); and
(b) the deficiency may lead to a serious
risk of food being sold or prepared that
is unsafe or unsuitable--
the auditor must notify the registration
30 authority of the risk as soon as practicable,
together with details of the notice given to
the proprietor under section 19JA(2)
or 19M(2) in relation to the deficiency.
(4) If any deficiency has not been remedied
35 within the period allowed under section
19JA(2)(c) or 19M(2)(c), the auditor must
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notify the registration authority of the failure
to remedy the deficiency--
(a) if the failure to remedy the deficiency
may lead to a serious risk of food being
5 sold or prepared that is unsafe or
unsuitable, as soon as practicable; or
(b) in any other case, within 14 days after
becoming aware of the failure.
19NA Request by registration authority for copy
10 of report prepared by food safety auditor
(1) For the purposes of this Act, the registration
authority may request the proprietor of a
food premises to provide within 14 days
copies of any report prepared by a food
15 safety auditor in relation to the food premises
prepared within the previous 4 years.
(2) A failure by the proprietor to comply with
the request is a ground for--
(a) the refusal of the registration, renewal
20 or registration or transfer of registration
of the food premises;
(b) the revocation or suspension of
registration of the food premises.
Division 6--Food safety auditors
25 19O Only approved auditor may conduct audit
A person must not conduct a food safety
audit of a food premises unless he or she is
an approved food safety auditor for the class
or category of food premises to which the
30 food premises belongs.
Penalty: 40 penalty units.
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19P Certification of food safety auditors
(1) A certifying body may certify in writing that
a natural person is competent to conduct a
food safety audit.
5 (2) In certifying a person, the certifying body--
(a) may specify on the certificate that the
certification applies to all, or specified,
classes or categories of food premises;
and
10 (b) may impose any conditions on the
certification; and
(c) may specify for how long the certificate
remains current.
(3) The Secretary may impose conditions on the
15 certification of a person as an approved food
safety auditor whether or not the Secretary
is, in relation to the person, the certifying
body.
(4) A person who is certified to conduct food
20 safety audits of a class or category of food
premises is also competent to conduct a food
safety assessment of that class or that
category of premises which has a non-
standard food safety program.
25 (5) The certifying body must not certify a person
until the person has paid the fee (if any)
prescribed in the regulations for a
certification.
(6) For the purposes of this section and
30 section 19T, certifying body means--
(a) the Secretary; or
(b) any person prescribed by the
regulations for the purposes of this
section.
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19Q Auditor must comply with conditions of
certification
An approved food safety auditor must
comply with any conditions imposed under
5 section 19P(2)(b) or 19P(3) on the
certification of the person as a food safety
auditor.
Penalty: 40 penalty units.
19R Offence to impersonate approved auditor
10 (1) A person must not directly or indirectly
represent that he or she is an approved food
safety auditor unless the person is an
approved food safety auditor.
Penalty: 40 penalty units.
15 (2) Without limiting subsection (1), a person
represents that he or she is an approved food
safety auditor if the person uses or takes the
title "approved food safety auditor".
(3) A person must not directly or indirectly
20 represent that he or she is authorised to
conduct a food safety audit unless the person
is an approved food safety auditor.
Penalty: 40 penalty units.
19S Conflict of interest
25 (1) A person must not conduct a food safety
audit of a food premises if the person has
written, or assisted in preparing, the food
safety program for the premises.
Penalty: 40 penalty units.
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(2) A person must not conduct a food safety
audit of a food premises if the person is the
proprietor, or an employee or officer of the
proprietor, of the premises.
5 Penalty: 40 penalty units.
(3) For the purposes of this section, assisted in
preparing does not include advice given by,
or on behalf of, the registration authority to
assist a proprietor of a food premises comply
10 with this Act.
19T Revocation of approval to act as an
auditor
(1) A certifying body may, after giving a person
an opportunity to be heard, revoke that
15 person's certification as an approved food
safety auditor if satisfied that--
(a) the certification was granted on the
basis of fraud, misrepresentation or the
concealment of facts; or
20 (b) the person has failed to comply with
any requirement imposed by this Act on
approved food safety auditors; or
(c) the person is not sufficiently competent
to conduct food safety audits; or
25 (d) the person has been found guilty of
fraudulent conduct in conducting an
audit; or
(e) the person has not satisfactorily
conducted 2 or more food safety audits.
30 (2) Despite subsection (1), only the Secretary
may revoke the certification of a person who
was certified by the Secretary.
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19U Audit by council staff
(1) An officer or member of the staff of a
council must not conduct, or assist in
conducting, a food safety audit of--
5 (a) any fixed food premises located within
that council's municipal district unless
the audit is conducted on behalf of the
council; or
(b) any temporary food premises or mobile
10 food premises unless the audit is
conducted on behalf of a council.
Penalty: 40 penalty units.
(2) If a food safety audit of a food premises is
conducted by or on behalf of a council, the
15 proprietor of the food premises must pay to
the council the reasonable costs of the audit.
(3) The council may waive or vary the costs of
an audit payable under subsection (2) if the
council considers that there are special
20 circumstances having regard to criteria fixed
by the council.
(4) The council must ensure that the method of
determining the reasonable costs of an audit
payable under subsection (2) and the criteria
25 fixed under subsection (3) are available for
inspection by the public.
Division 7--Miscellaneous
19UA Council fees for assessments
(1) A council may charge a fee for conducting--
30 (a) a food safety assessment of a food
premises other than an assessment
required by a declaration under
section 19C;
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(b) an inspection of a food premises other
than an inspection under section
38B(1)(c) or an annual inspection
required under section 39.
5 (2) For the purposes of subsection (1)(a), an
assessment is not required by a declaration
under section 19C if that assessment is in
excess of the default requirements relating to
the frequency and timing of assessments
10 referred to in section 19H(4)(a).
Example
A declaration under section 19C specifies that the
default requirement for the assessment of a food
premises is that an assessment is to be conducted
15 every 12 months. However, after taking into account
failures by the business to comply with the Act, the
registration authority determines that two assessments
are required to be conducted in a 12 month period.
In those circumstances, the registration authority may
20 charge a fee for the second assessment conducted in
that period but not for the first assessment.
(3) The fee charged--
(a) must be determined with reference to--
(i) the class declared under section
25 19C applicable to the premises;
and
(ii) any guidelines issued by the
Secretary; and
(b) must not include any costs of the
30 assessment or inspection that form part
of the registration fee payable to the
registration authority under Part VI.
(4) In deciding whether to charge the fee, the
council must take into consideration the
35 history of compliance by the proprietor in
relation to the food premises.
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(5) The council must ensure that the method of
determining a fee under subsection (3)(a)
and the considerations that apply under
subsection (4) are available for inspection by
5 the public.
(6) A fee charged under subsection (1) must be
paid to the council that has conducted the
assessment or inspection.
(7) A failure to pay a fee charged under
10 subsection (1) is a ground for the refusal of
the registration, renewal of registration or
transfer of registration of the food premises.
19V Exemptions concerning food safety
(1) The Secretary may exempt a proprietor of a
15 food premises, or the proprietors of a class of
food premises, from--
(a) the need to have a food safety program,
or a food safety program that fully
complies with this Act; or
20 (b) the need to comply with any
requirement in a food safety program;
(c) the need to have a food safety
supervisor;
(d) the need to be assessed or audited in
25 accordance with this Act;
(e) the need to comply with any other
requirements imposed on proprietors by
this Part or with any applicable
provisions of the Food Safety
30 Standards.
(2) In granting the exemption, the Secretary--
(a) must issue the exemption in writing
and, in the case of an exemption
applying in relation to a class of food
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premises, by notice published in the
Government Gazette; and
(b) must specify the period for which it is
to apply; and
5 (c) may impose any condition that the
Secretary considers to be appropriate.
(3) The Secretary may vary or revoke an
exemption at any time in the same manner in
which the exemption was granted.
10 (4) A failure to comply with a condition
imposed under subsection (2)(c) is a ground
for--
(a) the refusal of the registration, renewal
of registration or transfer of registration
15 of the premises;
(b) the revocation or suspension of
registration of the premises.
19W Directions concerning food safety
(1) The Secretary or the registration authority
20 may direct the proprietor of a food premises
to comply with any requirement under this
Part relating to the premises.
(2) Without limiting subsection (1), a direction
may be given--
25 (a) to comply with any record keeping
requirements applying to the premises
under section 19CB;
(b) to comply with any specified
requirement in the food safety program
30 for the premises;
(c) to comply with the staff training
requirements of a QA food safety
program;
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(d) to have the premises audited in
accordance with this Act.
(3) The Secretary or the registration authority
may direct the proprietor of a food
5 premises--
(a) to have staff at the premises undertake
training or instruction within a
specified time to ensure that the
requirements of this Act applying to the
10 premises are met;
(b) to have details of any staff training
incorporated into the minimum records
required to be kept or food safety
program of the premises.
15 (4) A direction given under this section must be
in writing and must allow the proprietor at
least 28 days to comply with the direction.
(5) A failure to comply with the direction within
the time allowed is a ground for--
20 (a) the refusal of the registration, renewal
of registration or transfer of registration
of the premises;
(b) the revocation or suspension of
registration of the premises.
25 __________________'.
14 Analysts
(1) For section 30(2)(a) of the Food Act 1984
substitute--
"(a) may be subject to any conditions specified in
30 the authority including--
(i) a condition limiting the authority to a
particular type of analysis;
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(ii) a condition limiting the authority to
analyses carried out in a particular type
of laboratory; and".
(2) After section 30(7) of the Food Act 1984 insert--
5 "(8) A person who has been approved for the
purposes of the Safe Drinking Water Act
2003 to conduct analyses of samples of
drinking water is taken to be authorised
under this section to carry out analyses of
10 water for the purposes of this Act subject to
any conditions of that approval.
(9) However, a person referred to in subsection
(8) is not required to be included in the list of
persons required to be maintained by the
15 Secretary under section 30(6).".
15 New heading of Division 1 of Part VI inserted
After the heading to Part VI of the Food Act 1984
insert--
"Division 1--General".
20 16 Sections 35, 36 and 37 substituted
For sections 35, 36 and 37 of the Food Act 1984
substitute--
"35 Registration authority
The registration authority for a food
25 premises is--
(a) the council of the municipal district in
which the premises is located; or
(b) if the premises is on land that is not part
of a municipal district, the Secretary.
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35A Requirement to be registered or to notify
registration authority
(1) The proprietor of a food business must not
allow the business to operate from any food
5 premises--
(a) that is not registered with the
registration authority in accordance
with Division 3; or
(b) while the registration of the premises is
10 suspended.
Penalty: 120 penalty units.
(2) The proprietor of a food premises that is
exempt under section 38(1) or (2) from the
requirement to be registered must not allow
15 the business to operate from the premises
unless the proprietor has given notification to
the registration authority of its operation in
accordance with Division 2.
Penalty: 120 penalty units.
20 (3) If--
(a) a temporary food premises or mobile
food premises is registered with a
registration authority in accordance
with Division 3; and
25 (b) that registration is recognised under
section 35B by another registration
authority--
the premises is taken to be registered with
the other registration authority subject to any
30 conditions that have been imposed on the
original registration.
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35B Recognition of registration
(1) A council may in writing recognise the
registration by another registration authority
of a specified temporary food premises or
5 mobile food premises.
(2) A council may recognise the registration by
another registration authority or all other
registration authorities of--
(a) a specified class of temporary or mobile
10 food premises; or
(b) all temporary or mobile food premises.
(3) A recognition under subsection (2) may only
be made by a resolution of the council.
(4) The Secretary may in writing recognise--
15 (a) the registration by a council of a
specified temporary food premises or
mobile food premises;
(b) the registration by a council or all
councils of--
20 (i) a specified class of temporary or
mobile food premises; or
(ii) all temporary or mobile food
premises.
36 Information required to be given to
25 registration authority
(1) Subject to subsection (2), the Secretary may,
by notice in the Government Gazette, declare
the information and documents that are
required to be given to the registration
30 authority by the proprietor of a food
business--
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(a) when giving notification of the
operation of a food premises under this
Part; and
(b) when applying for registration or
5 transfer or renewal of registration of a
food premises under this Part.
(2) The Secretary may only declare information
or documents that are relevant to the
registration authority in--
10 (a) determining to which class declared
under section 19C the premises
belongs; or
(b) deciding whether the premises must be
registered or notified; or
15 (c) deciding whether or not to accept the
notification or to register or transfer or
renew the registration of the food
premises, as the case may be.
37 Notification requirement of Food
20 Standards Code
The proprietor of a food business is taken to
have complied with the requirements of the
Food Standards Code relating to notification
for a food premises if the proprietor has--
25 (a) applied for the registration of the food
premises or notified the registration
authority of an intention to operate the
food premises; and
(b) given the registration authority the
30 information and documents required
under section 36.".
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17 Exemption from registration
(1) Before section 38(3) of the Food Act 1984
insert--
"(1) The Secretary may by notice published in the
5 Government Gazette exempt a food premises
or a class of food premises from the
requirement to be registered under this Part.
(2) A council may by resolution exempt a food
premises or a class of food premises, other
10 than a class declared under section 19C,
from the requirement to be registered under
this Part.".
(2) For sections 38(3) and 38(4) of the Food Act
1984 substitute--
15 "(3) Before a council exempts a class of food
premises under subsection (2), the council
must consult with the Secretary about the
proposed exemption.
(4) An exemption granted under subsection (1)
20 or (2) may be--
(a) subject to any conditions; and
(b) amended, varied or revoked in the same
manner in which it was granted.".
18 New Division 2 of Part VI inserted
25 After section 38 of the Food Act 1984 insert--
"Division 2--Notification of premises exempt
from registration
38AA Procedure for notification
(1) This section applies if the proprietor of a
30 food business--
(a) is operating, or intends to operate, from
a food premises; and
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(b) is of the opinion that the premises is
exempt under section 38(1) or (2) from
the requirement to be registered.
(2) The proprietor must notify the relevant
5 registration authority of the operation or
intended operation of the food premises.
(3) The notification must include any
information and be accompanied by any
documents required under section 36.
10 (4) On receipt of the notification, the registration
authority must determine whether the
premises are exempt from the requirement to
be registered.
(5) If the registration authority is not satisfied
15 that the premises are exempt, the registration
authority may--
(a) request further information from the
proprietor; or
(b) advise the proprietor that the premises
20 must be registered.
38AB Notification fee
(1) The Secretary may, by notice published in
the Government Gazette, declare the
maximum fee that may be charged by a
25 registration authority for the receipt of a
notification under section 38AA.
(2) The Secretary may under subsection (1)
declare a maximum fee that applies in
relation to--
30 (a) all notifications; or
(b) notifications made in a specified
manner.
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(3) The Secretary must not make a declaration
under subsection (1) unless--
(a) the Secretary has consulted with a body
representing local government; and
5 (b) a draft of the declaration has been
published in the Government Gazette
and a newspaper circulating in Victoria
for general comment.
(4) A registration authority may fix a fee for the
10 receipt of a notification under section 38AA
in accordance with a declaration under
subsection (1) but not otherwise.
(5) A person who is required to register a food
premises is not required to pay a notification
15 fee in relation to the premises.".
19 New heading to Division 3 of Part VI inserted
After section 38AB of the Food Act 1984
insert--
"Division 3--Registration of food premises".
20 20 Sections 38A, 38B and 39 substituted
For sections 38A, 38B and 39 of the Food Act
1984 substitute--
"38A Information required to accompany
application for registration or transfer of
25 registration
(1) This section applies to an application for the
registration or transfer of registration of a
food premises under this Act.
(2) In addition to the information required under
30 this section, the application must contain the
information and be accompanied by the
documents required under section 36.
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(3) If the application is for a food premises that
is required to have a food safety program, the
proprietor must state in the application--
(a) whether the food safety program
5 intended to be used for the premises
is--
(i) a standard food safety program; or
(ii) a non-standard food safety
program; and
10 (b) if a non-standard food safety program is
intended to be used, whether it is a QA
food safety program.
(4) If a standard food safety program is intended
to be used for the premises, the proprietor
15 must--
(a) state in the application which registered
food safety program template has been
used to create the food safety program;
and
20 (b) if requested by the registration
authority, provide to the registration
authority the completed template.
(5) If a QA food safety program is intended to
be used for the premises, the proprietor must
25 provide to the registration authority a
certificate from a food safety auditor issued
under section 19DD.
Note
If the certificate is not available at the time the
30 application is made the registration authority may
register the business on a conditional basis under
section 38E.
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(6) If a non-standard food safety program other
than a QA food safety program is intended to
be used for the premises, the proprietor must
either--
5 (a) include with the application a copy of
the food safety program for the
premises for assessment by the
registration authority prior to
registration; or
10 (b) unless subsection (7) applies, provide to
the registration authority a certificate
from a food safety auditor stating that
the food safety program for the
premises meets the requirements of
15 section 19D.
Note
If the certificate is not available at the time the
application is made the registration authority
may register the business on a conditional basis
20 under section 38E.
(7) A copy of the food safety program must be
included with the application for a food
premises to which subsection (6) applies, if
the premises is of a class of food premises
25 required by a declaration under section 19C
to have a food safety assessment conducted
by the registration authority under Part IIIB.
38B Requirements for registration or
transferral of registration
30 (1) Before registering or transferring the
registration of a food premises under this
Act, the registration authority must--
(a) assess the application and determine to
which class of food premises under
35 section 19C the food premises belongs;
and
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(b) ensure the proprietor has complied with
any provisions of section 38A
applicable to that class of food
premises; and
5 (c) inspect the premises.
(2) In addition, the registration authority must be
satisfied--
(a) if the food safety program intended to
be used for the premises is--
10 (i) a standard food safety program,
that the correct template has been
used to create the program; or
(ii) a QA food safety program, that a
certificate has been issued under
15 section 19DD; or
(iii) any other food safety program,
that the food safety program--
(A) has been assessed as
adequate by the registration
20 authority; or
(B) has been certified by a food
safety auditor as meeting the
requirements of section 19D
for the premises; and
25 (b) that all the relevant requirements of this
Act with respect to the premises have
been complied with.
38C Information required to accompany
application for renewal of registration
30 (1) This section applies to an application for the
renewal of registration of a food premises
under this Act.
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(2) In addition to the information required under
this section, the application must contain the
information and be accompanied by the
documents required under section 36.
5 (3) If a standard food safety program is used for
the premises, the proprietor must state in the
application which registered template has
been used to create the food safety program.
38D Requirements for renewal of registration
10 (1) Before renewing the registration of a food
premises under this Act, the registration
authority must--
(a) ensure the proprietor has complied with
any provisions of section 38C
15 applicable to that class of food
premises; and
(b) if required under section 39, inspect the
premises in accordance with that
section.
20 (2) In addition, the registration authority must be
satisfied--
(a) if the food safety program used for the
premises is--
(i) a standard food safety program,
25 that the correct template has been
used to create the program; or
(ii) a QA food safety program, that a
certificate issued under section
19DD is in force; or
30 (iii) any other food safety program,
that, as a result of the most recent
audit, the food safety program has
been certified by a food safety
auditor as meeting the
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requirements of section 19D for
the premises; and
(b) that any fee for the inspection or
assessment of the premises that is due
5 to the registration authority has been
paid; and
(c) that all the relevant requirements of this
Act with respect to the premises have
been complied with; and
10 (d) that no other ground under Part IIIB for
the refusal of the renewal of the
registration applies to the food
premises.
(3) For the purposes of subsection (2), the
15 registration authority may request copies of
any audit reports for the premises.
38E Conditional registration
(1) This section applies if--
(a) in the case of an application for the
20 registration or transfer of registration of
a food premises--
(i) the proprietor is required to
provide to the registration
authority a certificate stating that
25 the food safety program for the
premises meets the requirements
of section 19D; and
(ii) it is not possible to produce the
certificate until after the business
30 has commenced operating from
the premises; or
(b) in the case of an application for the
renewal of registration of a food
premises, the registration authority is
35 satisfied that for reasons beyond the
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control of the proprietor of the
premises, any certificate required to be
given before the expiry of the current
registration cannot be obtained before
5 then; or
(c) in the case of an application for the
renewal of the registration a food
premises which under its current
registration is not required to have a
10 food safety program, the registration
authority has assessed that, because of a
change in the food handling activities at
the premises, it is now required to have
a food safety program.
15 (2) If the application otherwise meets the
requirements of section 38B or 38D, the
registration authority may register the food
premises on a conditional basis for a
specified period not exceeding the prescribed
20 time limit.
(3) It is a condition of registration under
subsection (2) that, within the specified
period--
(a) in the case of food premises to which
25 subsection (1)(a) or (1)(b) applies, the
required certificate is provided to the
registration authority; or
(b) in the case of a food premises to which
subsection (1)(c) applies--
30 (i) a food safety program for the
premises has been adopted; and
(ii) the requirements under
section 38B that would apply to
the food safety program if the
35 application were an application for
the registration or the transfer of
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registration of food premises have
been met.
(4) If the conditions of registration under
subsection (3) are met, the registration
5 authority must register the food premises for
the balance of the 12 month period
commencing when the registration of the
premises would otherwise have taken effect.
(5) For the purposes of this section, the
10 prescribed time limit is--
(a) a period of 3 months; or
(b) a longer period declared by the
Secretary by notice in the Government
Gazette.
15 38F Change in operation of registered food
premises
(1) This section applies if--
(a) a food premises has been registered or
the registration of the food premises has
20 been renewed; and
(b) a change to the operation of the food
premises occurs after the premises is
registered or its registration is renewed.
(2) If the proprietor of the food premises knows
25 that, as result of the change, the premises
falls within a higher risk classification, the
proprietor must notify the registration
authority of the change within 14 days of it
occurring.
30 Penalty: 60 penalty units.
Note
Whether a food premises falls within a higher risk
classification is determined in the context of any
system used by the Secretary in declaring the classes
35 of food premises under section 19C.
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(3) If the classification of the food premises has
changed as a result, the registration
authority--
(a) must note the change to the
5 classification on the certificate of
registration of the food premises; and
(b) may require the proprietor of the food
premises to comply with any
requirements of this Act that would
10 apply if the proprietor were applying
for registration of the food premises
under the new classification.
39 Annual inspection of premises by
registration authority
15 (1) This section applies to a food premises
that--
(a) is registered under this Act; and
(b) is not of a class which, under the
classification under section 19C, is
20 exempt from the requirement to be
inspected annually.
(2) The registration authority must carry out an
inspection of the premises within 12 months
before the registration of the food premises is
25 renewed.
(3) However, the inspection must be carried out
within 3 months before the registration of the
food premises is renewed if any of the
following apply--
30 (a) the registration authority has reason to
believe that the food business or the
proprietor has failed to comply with
any requirements of this Act, whether
or not the failure has occurred in the
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municipal district of the registration
authority or otherwise;
(b) the registration authority has received
complaints about the operation of the
5 premises within the previous
12 months;
(c) as a result of a change to the operation
of the food premises since the last
registration, the food premises falls
10 within a higher risk classification;
(d) other circumstances exist as specified
in guidelines issued by the Secretary by
notice published in the Government
Gazette in relation to inspections.".
15 21 Registration etc. may be made despite minor defects
In section 39A of the Food Act 1984, for
"sections 19C and 39" substitute "sections 38B
and 38D".
22 Certificates of registration
20 After section 40(1) of the Food Act 1984 insert--
"(1A) A certificate of registration for a food
premises issued under subsection (1) must
specify the class of food premises declared
under section 19C to which the premises
25 belongs.".
23 Period for which registration lasts
(1) After section 40C(a) of the Food Act 1984
insert--
"(ab) if subsection (2) applies, for the period for
30 which the registration is renewed or granted;
or".
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(2) At the end of section 40C of the Food Act 1984
insert--
"(2) The registration authority may, at the request
of the proprietor, grant or renew the
5 registration of a food premises for a period
of less than 1 year if satisfied that the food
premises is intended to operate on a short-
term basis.".
24 Revocation or suspension of registration
10 For section 40D(1)(d) of the Food Act 1984
substitute--
"(d) the registration authority receives a notice
under section 19N; or
(e) a food safety auditor who is an officer or
15 member of the staff of the registration
authority has conducted a food safety
assessment or a food safety audit and is of
the opinion that--
(i) the food safety requirements applying
20 to the premises have not been complied
with or the food safety program is
inadequate or, in the case of a food
premises using a standard food safety
program, the program does not comply
25 with section 19DC(2); and
(ii) the deficiency may lead to a serious
risk of food being sold or prepared that
is unsafe or unsuitable.".
25 Registration fees
30 After section 41A(2)(a) of the Food Act 1984
insert--
"(ab) may vary according to the class of food
premises declared under section 19C to
which the premises belongs; and
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(ac) may incorporate in whole or part, the costs
associated with the assessment and
inspection of the premises; and".
26 Section 43 substituted
5 For section 43 of the Food Act 1984 substitute--
"43 Records of registration
(1) Each registration authority must maintain
records of the prescribed particulars for all
registrations and renewals and transfers of
10 registrations made by the registration
authority under this Act.
(2) The records must also--
(a) in the case of the registration of a food
premises, include the details of any
15 order in force under Part III that
includes a direction referred to in
section 19(3)(a) or (b) in relation to the
food premises;
(b) in the case of the registration of a food
20 vending machine, include the details of
any order in force under Part III that
includes a direction referred to in
section 19A(3)(a)(i) in relation to the
food vending machine;
25 (c) if either paragraph (a) or (b) applies,
note any appeal made under
section 19BA against the order.
(3) If a person requests information held in the
records in relation to a particular food
30 premises, the registration authority must
make that information available to the person
free of charge.
(4) For the purposes of subsection (3), the
records includes any book, database or other
35 record kept by the registration authority
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before the commencement of section 26 of
the Food Amendment (Regulation
Reform) Act 2009 for the purposes of
recording the particulars of registrations
5 made by the registration authority.".
27 New Part VIIIA inserted
After Part VIII of the Food Act 1984 insert--
"PART VIIIA--PUBLICATION OF
CONVICTIONS
10 53C References to appeal against conviction
In this Part, a reference to an appeal against a
conviction includes--
(a) an appeal against the conviction and
sentence imposed by a court;
15 (b) an appeal against the sentence imposed
by a court.
53D Register of convictions
(1) The Secretary must keep a register of
convictions for offences under this Act or the
20 regulations.
(2) The register may be kept in such form as the
Secretary considers appropriate.
(3) Subject to section 53F, the register must
include the following information in relation
25 to each conviction recorded in the register--
(a) the name of the person (whether a
natural person or otherwise) convicted
of the offence;
(b) the trade name and any company name
30 of the food business operating the food
premises at which, or in relation to
which, the offence was committed;
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(c) if known, the relationship between the
person convicted of the offence and the
food business operating the food
premises at which, or in relation to
5 which, the offence was committed;
(d) a description of the offence;
(e) details of the conviction including--
(i) the date of the conviction;
(ii) the decision of the court;
10 (iii) the name of the court;
(iv) the sentence or any other order
imposed (including any forfeiture
incurred);
(f) for an offence committed at or in
15 relation to a fixed premises--
(i) the name and address of the
premises;
(ii) the municipal district in which the
premises is located;
20 (g) for an offence committed at or in
relation to a temporary food premises,
mobile food premises or food vending
machine--
(i) if the premises are registered in
25 conjunction with a fixed premises,
the address of the fixed premises;
(ii) the municipal district in which the
offence was committed;
(iii) a description of the premises or
30 machine and any other
information that identifies the
premises or machine;
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(h) the name of the council or public body
that prosecuted the offence or on whose
behalf the offence was prosecuted.
(4) A conviction of a person must not be
5 recorded in the register unless--
(a) the time allowed for an appeal against
the conviction has expired and the
person has not lodged an appeal or
applied for leave to appeal within that
10 time; or
(b) if an appeal, or an application for leave
to appeal, against the conviction has
been lodged by the person within the
time allowed--
15 (i) the appeal has been abandoned or
dismissed; or
(ii) leave to appeal has been refused;
or
(iii) on the hearing of an appeal the
20 court confirms or imposes a
conviction.
(5) If subsection (4)(b)(iii) applies, the details of
the conviction referred to in subsection (3)(e)
are those relating to the conviction
25 confirmed or imposed by the court hearing
the appeal.
53E Publication of information on register
(1) The register kept by the Secretary under this
Part must be published on an internet website
30 of the Department.
(2) A copy of any information published in the
register may be provided on request to a
member of the public by the Department.
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53F Information that must not be included in
register
(1) Information must not be included in the
register if--
5 (a) to do so would contravene a court order
suppressing the publication of the
information, protecting a natural
person's whereabouts or prohibiting the
publication of a person's name or
10 address;
(b) the Secretary is satisfied that to do so
would be contrary to the purpose of an
order under the Family Violence
Protection Act 2008 or other similar
15 order under any other law;
(c) to do so would be contrary to any other
law prohibiting the publication of
certain information without the need
for a court order.
20 Example
Section 534 of the Children, Youth and
Families Act 2005.
(2) An address of a food premises that is a
private residence must not be included in the
25 register unless the premises is open to the
general public for the purpose of selling
food.
(3) If the Secretary considers that the inclusion
of an address in the register may raise
30 privacy issues in circumstances that are not
identified in subsections (1) and (2), the
Secretary must consult the Privacy
Commissioner and take into account the
advice given by the Privacy Commissioner
35 in deciding whether or not to include the
address in the register.
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(4) In this section, Privacy Commissioner has
the same meaning as in section 3 of the
Information Privacy Act 2000.
53G Obtaining information for inclusion in the
5 register
(1) As soon as practicable after a person is
convicted by a court for an offence under
this Act or the regulations, the relevant
council must provide to the Secretary--
10 (a) a certified extract or other authenticated
record of the decision of the court;
(b) advice regarding the time allowed for
an appeal against the conviction;
(c) if applicable, the certificate of
15 registration of the food premises at
which, or in relation to which, the
offence occurred;
(d) any information about that food
premises that is kept in the records of
20 registration of the council under
section 43;
(e) any other information held by the
council that is required to be included
in the register of convictions or that is
25 required by the Secretary in deciding
what information should be included in
the register.
(2) If the person convicted of the offence has not
lodged an appeal or applied for leave to
30 appeal against the conviction within the time
allowed, the relevant council must inform the
Secretary of that fact as soon as practicable
after the expiry of the time allowed.
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(3) As soon as practicable after an appeal or
application for leave to appeal is lodged
against the conviction, whether within the
time allowed or otherwise, the relevant
5 council must inform the Secretary of that fact
and the date, or dates, and at which court the
appeal or the application for leave to appeal
is to be determined.
(4) As soon as practicable after an appeal or
10 application for leave is determined, the
relevant council must inform the Secretary of
the outcome of the appeal or application.
(5) The Secretary may obtain information from
any council or any person with knowledge of
15 a particular proceeding for the purpose of--
(a) obtaining reliable information to
include in the register of convictions; or
(b) verifying information in the register or
intended to be included in the register;
20 or
(c) deciding whether information should be
included in the register.
(6) For the purposes of this section, the relevant
council in relation to the conviction of a
25 person for an offence occurring at, or in
relation to, a food premises is--
(a) the council that, at the time of the
offence, is the council with which the
food premises is registered; or
30 (b) if the food premises was not registered
at the time of the offence, the council
that brought the proceeding against the
person; or
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(c) if none of the above apply, the council
of the municipal district in which the
offence occurred.
53H Correction of register
5 (1) The Secretary must correct any error in
information in the register as soon as
practicable after becoming aware of the
error.
(2) The Secretary may at any time correct any
10 omission from information in the register.
(3) An error or omission may be corrected on
the initiative of the Secretary or at the
request of any person who is directly
affected by the publication of the
15 information.
53I Removal of record of conviction from
register
(1) The information relating to a conviction for
an offence must be removed from the
20 register of convictions if--
(a) the information has been on the register
for 12 consecutive months; or
(b) the Secretary becomes aware that--
(i) leave has been granted to lodge an
25 appeal against the conviction out
of time; or
(ii) the conviction or sentencing order
has been stayed by a court; or
(c) the removal is otherwise required by
30 this Act or another law.
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(2) Information relating to a conviction for an
offence that has been removed from the
register because of subsection (1)(b) must be
re-entered on the register if--
5 (a) the appeal against the conviction is
abandoned or dismissed; or
(b) leave to appeal against the conviction is
refused.
(3) If information relating to a conviction for an
10 offence is removed from the register because
of subsection (1)(b) and on the hearing of the
appeal the court confirms or imposes a
conviction for the offence, the information
must be re-entered on the register and
15 updated to include any information relating
to the outcome of the hearing of the appeal.
(4) If information relating to a conviction for an
offence is re-entered on the register under
subsection (2) or (3), for the purposes of
20 subsection (1)(a) the 12 months runs from
the date the information is re-entered on the
register.
(5) Information may be removed from the
register under this section on the initiative of
25 the Secretary or at the request of any person
who is directly affected by the publication of
the information.
53J Additional information
(1) If a food premises is identified in the register
30 as a premises at which, or in relation to
which, an offence has been committed and
the registration of the food premises is
transferred after the offence occurred the
Secretary may add information to the register
35 of convictions to indicate that the registration
of the premises has been transferred.
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(2) Information relating to a food premises may
be added to the register under this section on
the initiative of the Secretary or at the
request of the proprietor of the premises.
5 __________________".
28 Secrecy
(1) For section 54(1)(b) of the Food Act 1984
substitute--
"(b) in accordance with any Act or regulation; or
10 (ba) in connection with the administration of--
(i) this Act or the regulations; or
(ii) any other Act or regulation that applies
to, or regulates, the food premises or
the activities at the food premises to
15 which the disclosure relates; or
(bb) to a person or body administering or
enforcing--
(i) a corresponding law; or
(ii) a law that relates to the safety or
20 suitability of food; or
(iii) the Aged Care Act 1997 of the
Commonwealth; or
(iv) any other law of a State or the
Commonwealth prescribed by the
25 regulations; or
(bc) to prevent or lessen a serious threat to public
health; or".
(2) In the penalty at the foot of section 54(1) of the
Food Act 1984 for "50" substitute "60".
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(3) For section 54(2) of the Food Act 1984
substitute--
"(2) A person does not commit an offence under
subsection (1) if the information or the
5 information contained in the document was
publicly available before, or at the time, the
information was disclosed or the document
was published.".
(4) Section 54(3) of the Food Act 1984 is repealed.
10 29 New section 58A substituted
For section 58A of the Food Act 1984
substitute--
"58A Delegation by council
(1) A council may delegate to one or more of its
15 officers or members of its staff its powers
and discretions under Part III (other than its
power under section 19(3)), Part IIIB,
Part VI and section 46(5).
(2) The refusal by an officer or member of a
20 council's staff to grant, renew or transfer the
registration of a food premises is of no effect
until it is ratified by the council or the chief
executive officer of the council.".
30 New section 58B inserted
25 After section 58A of the Food Act 1984 insert--
"58B Matters occurring outside registration
area
(1) A registration authority for a temporary food
premises or mobile food premises may take
30 action in relation to a thing done or omitted
to be done at the food premises regardless of
where the thing was done or omitted to be
done.
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(2) In making a decision under this Act in
relation to a temporary food premises or
mobile food premises, the registration
authority for the food premises may take into
5 account the results of any inspection,
assessment or audit conducted, or other
action taken, by another registration
authority in relation to the premises.".
31 Cost recovery in respect of failure to comply with
10 direction or notice
In section 59C(1)(a) of the Food Act 1984 for
"section 19 or 19B" substitute "Part III".
32 Heading to Part XII substituted
For the heading to Part XII of the Food Act 1984
15 substitute--
"PART XII--TRANSITIONAL PROVISIONS
FOR FOOD (AMENDMENT) ACT 2001".
33 New Part XIII inserted
After section 63D of the Food Act 1984 insert--
20 "PART XIII--TRANSITIONAL AND SAVINGS
PROVISIONS FOR PART 2 OF THE FOOD
AMENDMENT (REGULATION REFORM)
ACT 2009
64 Definitions
25 In this Part--
commencement date, unless stated
otherwise, means the date section 13 of
the Food Amendment (Regulation
Reform) Act 2009 comes into
30 operation;
unamended Act means this Act as in force
immediately before the commencement
date.
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65 Minimum record keeping
(1) This section applies if immediately before
the commencement date, a food premises
meets the requirements under section 19E of
5 the unamended Act relating to a food safety
program.
(2) While the food premises continues to meet
the requirements under section 19E of the
unamended Act and until the registration of
10 the premises is renewed, the proprietor of the
food premises is taken to meet any
requirement under section 19CB to keep
minimum records.
66 Food safety program templates
15 A food safety program template registered
by the Secretary under section 19DB of the
unamended Act is taken to be registered
under section 19DB.
67 Inspections
20 (1) If the registration of a food premises under
Part VI is renewed after the commencement
date, any inspection of the premises under
section 19HA or 39(1)(a) of the unamended
Act conducted within 12 months before the
25 renewal is taken to be an assessment
conducted under Part IIIB.
(2) A notice given to the proprietor of a food
premises under section 19HB(1) of the
unamended Act is taken to have been given
30 under section 19IA(2).
68 Audits
(1) A food safety program audit conducted for
the purposes of Part IIIB of the unamended
Act is taken to be a food safety audit
35 conducted for the purposes of Part IIIB.
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(2) A certificate issued under section 19L of the
unamended Act is taken to have been issued
under section 19L.
(3) A certificate issued under section 19M of the
5 unamended Act is taken to have been issued
under section 19M.
(4) An advice given to the proprietor of a food
premises under section 19M(1) of the
unamended Act is taken to have been given
10 under section 19M(2).
(5) A notice given to the registration authority
by an auditor under section 19M of the
unamended Act is taken to have given under
section 19N.
15 69 Food safety auditors
(1) A certificate issued under section 19P of the
unamended Act is taken to have been issued
under section 19P.
(2) A reference in section 19T(1)(b) to a
20 requirement imposed by this Act includes
any requirement imposed on a food safety
auditor by the unamended Act before the
commencement date.
70 Registration and notification of food
25 premises
A food premises that, immediately before the
commencement date, is registered under
Part VI of the unamended Act is taken to be
registered under Part VI.
30 71 Grounds for revocation or suspension of
registration or direction by the Secretary
If, immediately before the commencement
date, a ground for the revocation or
suspension of the premises exists under
35 Part IIIB or section 40D of the unamended
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Act and the matter giving rise to that ground
has not been dealt with under the unamended
Act--
(a) the registration authority may revoke or
5 suspend of the registration of the food
premises under Part IIIB or
section 40D; or
(b) the Secretary may give a direction
under section 40E in relation to the
10 matter.
72 Food (Forms and Registration)
Regulations 2005
Regulation 10 of the Food (Forms and
Registration) Regulations 2005 applies to
15 section 43(1) as if a reference in that
regulation to a register book were a reference
to the records required to be kept under
section 43.
73 Register of convictions
20 The Secretary must include in the register of
convictions under section 53D a conviction
for an offence committed before the date
section 27 of the Food Amendment
(Regulation Reform) Act 2009 comes into
25 operation if the conviction for the offence is
recorded after that date.
74 First declaration under section 19C
Despite section 19C(4), the first declaration
made by the Secretary under section 19C--
30 (a) does not require a notice of intention
under section 19CA; and
(b) takes effect on the date specified in the
notice under section 19C.
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75 Declarations made and exemptions
granted before commencement
(1) On the commencement date, the following
cease to have effect--
5 (a) any declaration made under
section 19C as in force immediately
before that date;
(b) any exemption granted under
section 19V as in force immediately
10 before that date.
(2) An exemption granted under section 38(3) as
in force immediately before the
commencement date remains in force for
4 months after that date unless sooner
15 revoked under section 38(4).
76 Transitional regulations
The Governor in Council may make
regulations containing provisions of a saving
or transitional nature consequent on the
20 enactment of the Food Amendment
(Regulation Reform) Act 2009.
__________________".
__________________
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Part 3--Amendments Relating to Enforceable Undertakings, Sampling
s. 34
Requirements and Infringement Offences
PART 3--AMENDMENTS RELATING TO ENFORCEABLE
UNDERTAKINGS, SAMPLING REQUIREMENTS AND
INFRINGEMENT OFFENCES
34 New Part IIIA inserted
5 After section 19BA of the Food Act 1984
insert--
"PART IIIA--UNDERTAKINGS
19BB Secretary may accept undertaking
(1) The Secretary may accept a written
10 undertaking given by a person in connection
with a matter relating to a contravention, or
alleged contravention, of section 13, 16(3)
or 16(4) or any prescribed provision.
(2) The undertaking must specify--
15 (a) the food premises or food business to
which the undertaking relates; and
(b) the action proposed to be taken; and
(c) the timeframe in which the proposed
action is to be taken; and
20 (d) any other relevant matter.
(3) The person may, with the Secretary's
consent, withdraw or vary the undertaking at
any time.
(4) While the undertaking is in force, a
25 proceeding may not be brought for an
offence relating to the matter referred to in
subsection (1).
(5) The Secretary may in writing authorise the
Director of Consumer Affairs, either
30 generally or for a specific case, to accept an
undertaking under this section.
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Requirements and Infringement Offences
(6) The Secretary may in writing authorise a
council, either generally or for a specific
case, to accept an undertaking under this
section in circumstances where the council is
5 the registration authority for the food
premises.
(7) An authorisation given by the Secretary
under subsection (6) may be subject to any
conditions and limitations imposed by the
10 Secretary.
19BC Consent orders and enforcement of
undertaking
(1) The Secretary, with the consent of the person
who gave an undertaking, may apply at any
15 time to the Magistrates' Court for an order
directing the person to comply with the
undertaking.
(2) On an application under subsection (1), the
Magistrates' Court may by order direct the
20 person who gave the undertaking to comply
with the order.
(3) If the Secretary considers that the person
who gave the undertaking has breached any
of its terms, the Secretary may apply to the
25 Magistrates' Court for an order under
subsection (4).
(4) If the Magistrates' Court is satisfied that the
person has breached a term of the
undertaking, the Magistrates' Court may
30 make--
(a) an order that the person comply with
the undertaking or take specified action
to comply with the undertaking; or
(b) any other order that the Magistrates'
35 Court considers appropriate.
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Requirements and Infringement Offences
(5) A person who has accepted an undertaking
under the authorisation of the Secretary may
exercise the powers and discretions of the
Secretary under this section in relation to that
5 undertaking.
__________________".
35 Duties of analysts
After section 31(a) of the Food Act 1984 insert--
"(b) if the article is a food sample submitted for
10 analysis under section 32(1), include the
result of the analysis in a report submitted in
accordance with section 32(2); and".
36 New section 31A inserted
After section 31 of the Food Act 1984 insert--
15 "31A Interstate analysts
(1) A natural person who has been authorised or
approved under a corresponding law to carry
out analyses for the purposes of that
corresponding law (an interstate analyst) is
20 taken to be authorised under section 30 to
carry out analyses for the purposes of this
Act subject to any conditions of the
authorisation under the corresponding law.
(2) However, an interstate analyst is not required
25 to be included in the list of persons required
to be maintained by the Secretary under
section 30(6).
(3) An analysis of an article by an interstate
analyst is not an analysis for the purpose of
30 this Act unless the interstate analyst--
(a) supplies to the person submitting the
article a certificate in the prescribed
form setting out the result of the
analysis; and
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Requirements and Infringement Offences
(b) if any apparatus to be used or method to
be observed has been prescribed, uses
that apparatus and observes that method
accordingly and declares that this has
5 been done in the certificate; and
(c) if the article is a food sample submitted
for analysis under section 32(1),
includes the result of the analysis in a
report submitted in accordance with
10 section 32(2).".
37 Section 32 substituted
For section 32 of the Food Act 1984 substitute--
"32 Councils to submit samples for analysis
(1) Subject to subsection (5), each council must
15 submit food samples for analysis in
accordance with any sampling requirement
declaration made by the Secretary under
section 32A.
(2) An analyst who makes one or more analyses
20 for a council under this section during a
reporting period must prepare a report of the
number of analyses made for the council
during that period and the results of each
analysis.
25 (3) The report must be given to the council and
the Secretary as soon as practicable after the
end of the reporting period.
(4) For the purposes of subsections (2) and (3),
the reporting period is--
30 (a) the period specified in the sampling
requirement declaration, pursuant to
which the food samples are submitted
for analysis; or
(b) if no period has been specified, each
35 quarter of a year.
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Requirements and Infringement Offences
(5) The Secretary may in writing exempt a
council from compliance with subsection (1)
on any terms and conditions including, but
not limited to, a requirement that the council
5 must arrange one or more specific surveys
to be conducted of food premises within its
municipal district.
(6) A food sample submitted for analysis by a
council under this section must be a food
10 sample procured under section 22 from food
premises registered by the council or from
premises which have given notification to
the council under this Act, when those
premises are in operation.
15 (7) Sections 23(2), 23(3), 23(4), 23(5) and 55(2)
do not apply to a food sample taken for
analysis under this section and the results of
the analysis is not admissible against a food
business in any criminal or civil proceeding
20 other than a proceeding arising in relation to
an order made under Part VIII.".
38 New section 32A inserted
After section 32 of the Food Act 1984 insert--
"32A Sampling requirement declaration
25 (1) The Secretary may, by notice published in
the Government Gazette, make a declaration
specifying the sampling and reporting
requirements for--
(a) each period, specified in the
30 declaration; or
(b) a specific survey.
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Requirements and Infringement Offences
(2) The declaration may specify--
(a) the number and type of food samples
that must be obtained and submitted for
analysis by each council for each period
5 or for the survey, as the case may be;
(b) whether the samples may be obtained
from any food premises or must be
obtained from specified types or classes
of food premises;
10 (c) the manner in which the samples must
be analysed;
(d) information that must be provided with
the sample to the analyst;
(e) any other matter relevant to the
15 samples;
(f) information that must be included in the
report of the results of the analysis
given under section 32(2).
(3) A declaration made under subsection (1)(a)
20 may operate concurrently with a declaration
made under subsection (1)(b).".
39 New section 56A inserted
After section 56 of the Food Act 1984 insert--
"56A Infringements
25 (1) An authorized officer may serve an
infringement notice on a person that the
authorized officer has reason to believe has
committed--
(a) an offence specified in Column 2 of
30 Schedule 1; or
(b) a prescribed offence.
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Requirements and Infringement Offences
(2) An offence referred to in subsection (1) for
which an infringement notice may be served
is an infringement offence within the
meaning of the Infringements Act 2006.
5 (3) For the purposes of subsection (1), an
infringement notice--
(a) must be in the form required by
section 13 of the Infringements Act
2006; and
10 (b) may contain any additional prescribed
details.
(4) The infringement penalty for--
(a) an offence specified in Schedule 1, is
the amount specified in Column 3 of
15 Schedule 1 opposite that offence; and
(b) a prescribed offence, is the prescribed
amount.".
40 Payment of penalties
At the end of section 57 of the Food Act 1984
20 insert--
"(2) If an infringement notice has been issued by
a council under this Act, the infringement
penalty recovered in relation to the notice is
payable to the municipal fund of the council.
25 (3) For the purposes of this section--
(a) an offence prosecuted by an authorized
officer of a council is taken to have
been prosecuted by the council; and
(b) an infringement notice issued by an
30 authorized officer of a council is taken
to have been issued by the council.".
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Requirements and Infringement Offences
41 Limitation on power to make local laws
For section 63B(1) of the Food Act 1984
substitute--
"(1) A council must not make a local law under
5 the Local Government Act 1989 for or with
respect to--
(a) food safety; or
(b) any matter or thing for or with respect
to which--
10 (i) regulations made under this Act
are in force; or
(ii) regulations could be made under
this Act; or
(iii) the Food Standards Code has
15 effect.".
42 New Schedule 1 inserted
After the heading "SCHEDULES" in the Food
Act 1984 insert--
"SCHEDULE 1
20 Section 56A
INFRINGEMENTS
Column 1 Column 2 Column 3 Column 4
Summary of
Item Offence Penalty offence
1 An offence 5 penalty Failure to
against units for a comply with
section 16(1) natural requirement
constituted by person; of Food
a failure to Standards
10 penalty
comply with Code relating
units for a
the to food safety
body
requirements practices or
corporate
of any of the general
following requirements
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Requirements and Infringement Offences
Column 1 Column 2 Column 3 Column 4
Summary of
Item Offence Penalty offence
clauses of
Standard
3.2.2 of the
Food
Standards
Code--
5(2)(a),
5(2)(b),
6(1)(a), 6(2),
7(1)(b), 7(2),
8(1), 8(2)(b),
8(2)(c), 8(4),
8(5)(a),
8(5)(b), 10(b),
10(c), 11(3),
11(4), 12,
16(3), 17, 19,
20(1), 21(2),
22(a),
23(b)(ii),
24(1)(a),
24(1)(b)
2 An offence 5 penalty Failure to
against units for a comply with
section 16(1) natural requirement
constituted by person; of Food
a failure to Standards
10 penalty
comply with Code relating
units for a
the to food
body
requirements premises or
corporate
of any of the equipment
following
clauses of
Standard
3.2.3 of the
Food
Standards
Code--
4(2), 5(a),
6(a), 6(b),
10(2)(a),
10(2)(b),
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Requirements and Infringement Offences
Column 1 Column 2 Column 3 Column 4
Summary of
Item Offence Penalty offence
10(2)(c),
11(4)(a),
12(2)(b),
12(2)(c),
12(3), 12(4),
13, 14, 15(2)
3 An offence 2 penalty Failure by
against units for a proprietor to
section 17 natural display name
person; on food
premises
3 penalty
units for a
body
corporate
4 An offence 2 penalty Failure to
against units for a keep
section natural minimum
19CB(6) person; records at
premises
3 penalty
units for a
body
corporate
5 An offence 2 penalty Failure to
against units for a keep food
section 19F natural safety
person; program at
premises
3 penalty
units for a
body
corporate
6 An offence 2 penalty Failure to
against units for a give name
section 19GB natural and
person; qualifications
of food safety
3 penalty
supervisor
units for a
when
body
requested
corporate
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Requirements and Infringement Offences
Column 1 Column 2 Column 3 Column 4
Summary of
Item Offence Penalty offence
7 An offence 5 penalty Operate from
against units for a a food
section natural premises
35A(1) person; which is not
registered
10 penalty
units for a
body
corporate
8 An offence 5 penalty Operate from
against units for a a food
section natural premises
35A(2) person; exempt from
requirement
10 penalty
to be
units for a
registered for
body
which
corporate
notification
has not been
given
".
__________________
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PART 4--AMENDMENTS RELATING TO SINGLE
NOTIFICATION OR REGISTRATION SCHEME
43 Definitions
In section 4(1) of the Food Act 1984--
5 (a) in the definition of food transport vehicle
after "sale" insert "other than a water
transport vehicle";
(b) insert the following definitions--
"component, of a food business, means any
10 of the following operated by the
business--
(a) a fixed food premises;
(b) a temporary food premises;
(c) a mobile food premises;
15 (d) a food vending machine;
principal premises, of a food business, has
the meaning given by section 43D;
water transport vehicle means a vehicle used
by a private water carter to transport
20 water that is intended for human
consumption or for purposes connected
with human consumption (such as the
preparation of food or the making of ice
for consumption or for the preservation
25 of unpackaged food) whether or not the
water is used for other purposes.".
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44 New section 4G substituted
For section 4G of the Food Act 1984
substitute--
"4G Food vending machines deemed to be food
5 premises
For the purposes of this Act a food vending
machine is deemed to be a food premises.".
45 Role of councils
After section 7A(d) of the Food Act 1984
10 insert--
"(e) participate in the state-wide system for the
single notification or registration of
temporary food premises, mobile food
premises or food vending machines.".
15 46 Annual report on food regulation
After section 7C(2)(a) of the Food Act 1984
insert--
"(ab) statistics relating to the registration of food
businesses operating from temporary food
20 premises, mobile food premises or food
vending machines;".
47 Audit by council staff
In section 19U(1)(b) of the Food Act 1984 for "or
mobile food premises" substitute ", mobile food
25 premises or food vending machine".
48 Registration authority
At the end of section 35 of the Food Act 1984
insert--
"(2) However, for the purposes of Division 4, the
30 registration authority for a temporary food
premises, mobile food premises or food
vending machine is--
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(a) the council of the municipal district
where--
(i) the principal premises of the food
business operating the premises or
5 machine is located; or
(ii) if the principal premises of the
food business is located interstate,
the food business first operates in
Victoria; or
10 (b) if paragraph (a) does not apply to any
council, the Secretary.
Note
The principal premises of a food business is
determined under section 43D.".
15 49 Section 35A substituted
For section 35A of the Food Act 1984
substitute--
"35A Requirement to be registered or to notify
registration authority
20 (1) The proprietor of a food business must not
allow the business to operate from any food
premises--
(a) that is not registered with the
registration authority--
25 (i) in the case of a temporary food
premises, mobile food premises or
food vending machine and subject
to subsection (3), in accordance
with Division 4; or
30 (ii) in the case of a fixed premises that
is the principal premises in
relation to a temporary food
premises, mobile food premises or
food vending machine, in
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accordance with Division 3 or 4;
or
(iii) in any other case, in accordance
with Division 3; or
5 (b) while the registration of the premises is
suspended.
Penalty: 120 penalty units.
(2) The proprietor of a food premises that is
exempt under section 38(1) or (2) from the
10 requirement to be registered must not allow
the business to operate from the premises
unless the proprietor has given notification to
the registration authority of its operation--
(a) in the case of a temporary food
15 premises, mobile food premises or food
vending machine and subject to
subsection (3), in accordance with
Division 4; or
(b) in the case of a fixed premises that is
20 the principal premises in relation to a
temporary food premises, mobile food
premises or food vending machine, in
accordance with Division 2 or 4; or
(c) in any other case, in accordance with
25 Division 2.
Penalty: 120 penalty units.
(3) The Secretary may, in writing, permit the
proprietor of a temporary food premises,
mobile food premises or food vending
30 machine to register the premises or machine
under Division 3 or, if the premises or
machine is exempt under section 38(1) or (2)
from the requirement to be registered, to give
notification of its operation under Division 2.
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(4) The Secretary may, by notice published in
the Government Gazette, permit each
proprietor of a temporary food premises,
mobile food premises or food vending
5 machine belonging to a specified class to
register the premises or machine under
Division 3 or, if the class of premises or
machine is exempt under section 38(1) or (2)
from the requirement to be registered, to give
10 notification of its operation under
Division 2.".
50 Repeal of section 35B
Section 35B of the Food Act 1984 is repealed.
51 Registration etc. may be made despite minor defects
15 In section 39A of the Food Act 1984, for
"and 38D" substitute ", 38D and 43F".
52 Registration fees
After section 41A(2)(ac) of the Food Act 1984
insert--
20 "(ad) in the case of a registration under Division 4,
may vary according to the number and nature
of temporary food premises, mobile food
premises or food vending machines; and".
53 New Division 4 of Part VI inserted
25 After section 43A of the Food Act 1984 insert--
"Division 4--Single notification or registration
scheme
43B Application of Division to areas of land
not within municipal district
30 In respect of an area of land which is not
located within a municipal district, the
provisions of this Division apply--
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(a) as if a reference to a council were a
reference to the Secretary; and
(b) as if a reference to a municipal district
were a reference to that area of land.
5 43C Single notification or registration scheme
(1) The purpose of this Division is to provide for
the notification or registration of temporary
food premises, mobile food premises or food
vending machines.
10 (2) The receipt of notification or the registration
of the components of a food business
specified in the notification or application for
registration by one council under this
Division allows each of those components to
15 operate anywhere in Victoria, subject to any
conditions imposed by that council, without
the requirement for the operation of the
component to be notified to, or the
component to be registered with, another
20 council.
(3) Subject to this Division and any exemptions
and modifications provided in a declaration
issued under section 43E--
(a) Division 2 applies to a component of a
25 food business notified under this
Division as if it were notified
individually under Division 2; and
(b) Division 3 applies to a component of a
food business registered under this
30 Division as if it were registered
individually under Division 3.
(4) For the purposes of this Division and
section 35(2), a reference to a food business
includes a reference to an autonomous
35 division of a food business for which a
separate application for registration has been
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made, or a separate notification given, in
accordance with section 43F(3)(b).
43D Principal premises of food business
(1) For the purposes of sections 35 and 35A, the
5 principal premises of a food business that
operates from a temporary or mobile food
premises or a food vending machine is the
premises--
(a) where, prior to its sale, the food is--
10 (i) routinely prepared; or
(ii) if not prepared, is routinely stored
or otherwise handled; or
(b) if subsection (a) does not apply--
(i) in the case of a food business
15 operating from temporary food
premises, where the equipment
used at the temporary premises is
usually stored; or
(ii) in the case of a food business
20 operating from mobile premises,
where the mobile premises are
garaged.
(2) If subsection (1) applies to more than one
premises, the principal premises is that
25 nominated by the proprietor of the food
business as the main place where--
(a) the food is prepared or handled; or
(b) the equipment is stored; or
(c) the mobile premises are garaged--
30 as the case may be.
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(3) If subsection (1) does not apply to any
premises, the principal premises is the
nominated business address of the food
business.
5 43E Declaration of requirements for
notification or registration
(1) The Secretary may, by notice published in
the Government Gazette, declare the
requirements applying to the notification or
10 registration of the components of a food
business under this Division.
(2) The declaration may include requirements
applying to the inspection, assessment or
audit of the components of a food business
15 registered under this Division.
(3) The declaration may provide for the
exemption from, or modification to--
(a) any requirements that apply under
section 38B or 38D to an application
20 for registration, transfer of registration
or the renewal of registration of a food
premises;
(b) any requirements that apply under
sections 19C and 39 to the inspection,
25 assessment and audit of a food
premises.
(4) A declaration under this section may apply
different requirements depending on the
activities undertaken by the food businesses
30 at the temporary or mobile food premises or
food vending machines.
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43F Notification or registration under the
single notification or registration scheme
(1) Subject to subsection (2), the proprietor of a
food business that operates one or more
5 temporary food premises, mobile food
premises or food vending machines, other
than a proprietor to whom section 35A(3)
or 35A(4) applies, must register the
components of the business under this
10 Division.
(2) If all the components of a food business
referred to in subsection (1) would, if
registered individually, be exempt from the
requirement to be registered, the proprietor
15 of the food business other than a proprietor
to whom section 35A(3) or 35A(4) applies
must give notification of the operation of the
components of the business under this
Division.
20 (3) If the food business is divided into
autonomous divisions, the proprietor of the
food business may register or give
notification of the operation of --
(a) the components of the food business
25 under the one application or
notification; or
(b) the components of each division of the
food business under a separate
application or notification for each
30 autonomous division.
Example
A charitable organisation may be subdivided
into district branches with each branch
preparing and selling food separately. Each
35 branch may register its operation separately
under this Division.
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(4) For the purposes of subsection (3), a division
of a food business is autonomous if the food
sold by the business is not ordinarily
prepared, stored or handled by any other
5 division of the food business.
(5) In addition to any information or documents
required under section 36, the notification or
application for the registration or transfer or
renewal of registration must include the
10 following information--
(a) the number of temporary food
premises, mobile food premises or
vending machines being operated or
intended to be operated by the food
15 business; and
(b) the location of the principal premises.
(6) Before registering, or transferring or
renewing the registration of a component of
the food business, the registration authority
20 must be satisfied that the requirements under
Division 3 applying to registration of the
component, as subject to any exemptions and
modifications declared by the Secretary
under section 43E, have been met.
25 (7) The registration authority may register the
components of the food business that meet
those requirements and refuse to register the
components that do not meet them.
43G Certificate of registration
30 A certificate of registration issued to the
proprietor of a food business for the purposes
of this Division must be endorsed with--
(a) the address of the principal premises of
the business; and
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(b) the following details for each
component of the business to which the
registration applies--
(i) the class of food premises
5 declared under section 19C to
which the component belongs;
(ii) any identifying number assigned
by the registering council to the
component;
10 (iii) if the component is a mobile food
premises, its motor vehicle
registration number.
43H Declaration of requirements for statement
of trade
15 (1) The Secretary may, by notice published in
the Government Gazette, declare the
requirements applying to the lodgement of a
statement of trade under section 43I.
(2) The declaration may--
20 (a) specify the requirements applying to
the timeframe in which a statement of
trade must be lodged and the
information that must be included in the
statement; and
25 (b) exempt the proprietors of specified
categories of food businesses from--
(i) the requirement to lodge a
statement of trade; or
(ii) any other requirement under
30 section 43I.
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(3) The declaration may apply different
requirements depending on the activities
undertaken by the food business operating
from the temporary or mobile food premises
5 or food vending machines.
43I Statement of trade
(1) The proprietor of a food business must not
allow the business to operate from a
temporary food premises, mobile food
10 premises or food vending machine unless a
statement of trade has been lodged in
accordance with this section with the council
of the municipal district in which the
premises or machine is being operated.
15 Penalty: 60 penalty units.
(2) Subsection (1) does not apply to a proprietor
who--
(a) is exempt by a declaration under
section 43H from the requirement to
20 lodge a statement of trade in respect of
the temporary food premises, mobile
food premises or food vending
machine; or
(b) has been permitted under section
25 35A(3) or 35A(4) to register the
temporary food premises, mobile food
premises or food vending machine
under Division 3 or notify its operation
under Division 2.
30 (3) A statement of trade must be lodged with the
principal council and the council of each
municipal district in which the proprietor
intends to operate--
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(a) within the time specified in the
declaration the Secretary under
section 43H; or
(b) if a time has not been specified in the
5 declaration, no later than 5 days before
the intended commencement of
operation in that municipal district.
(4) The statement of trade must contain the
following information--
10 (a) the name of the principal council;
(b) the registration number assigned by the
principal council;
(c) the name of the proprietor;
(d) the municipal districts in which the
15 proprietor of the food business intends
to operate;
(e) subject to the declaration by the
Secretary under section 43H, the
following details for each municipal
20 district--
(i) the number of temporary food
premises, mobile food premises or
vending machines that are to
operate in the municipal district;
25 (ii) the places within the municipal
district that the premises or
machines are to operate;
(iii) when the premises or machines
are to operate;
30 (iv) any indentifying numbers or other
means of identification assigned
by the principal council to the
premises or machines;
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(v) in the case of a mobile food
premises, the vehicle registration
number of the premises;
(f) any other information specified in the
5 declaration by the Secretary under
section 43H.
(5) For the purposes of subsection (1), the
proprietor of a food business who operates in
a mobile food premises that is a water
10 transport vehicle in a municipal district, is
taken to have lodged a statement of trade
with the council of that municipal district in
respect of that vehicle if the proprietor has
notified the council in the previous
15 12 months that the vehicle would be
operating in the municipal district.
(6) In this section, principal council, in relation
to a food premises, means the council which
has received notification of the operation of
20 the premises or registered the premises.".
54 Delegation by council officers
After section 58A(1) of the Food Act 1984
insert--
"(1A) A council may delegate to one or more of its
25 officers or members of staff any of its
powers or discretions under Part III in
relation to temporary food premises or
mobile food premises.".
55 Matters occurring outside registration area
30 In sections 58B(1) and 58B(2) of the Food Act
1984 for "or mobile food premises" substitute
", mobile food premises or food vending
machine".
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Food Amendment (Regulation Reform) Bill 2009
Part 4--Amendments Relating to Single Notification or Registration Scheme
s. 56
56 New section Part XIV inserted
After section 76 of the Food Act 1984 insert--
"PART XIV--TRANSITIONAL AND SAVINGS
PROVISIONS FOR PART 4 OF FOOD
5 AMENDMENT (REGULATION REFORM)
ACT 2009
77 Definitions
In this Part--
commencement date means the date Part 4
10 of the Food Amendment (Regulation
Reform) Act 2009 comes into
operation;
unamended Act means this Act as in force
immediately before the commencement
15 date.
78 Temporary food premises, mobile food
premises or food vending machine
currently registered
(1) This section applies if immediately before
20 the commencement date, a temporary food
premises, mobile food premises or food
vending machine is registered under Part VI
of the unamended Act.
(2) Until that registration expires, the temporary
25 food premises, mobile food premises or food
vending machine is taken to be registered
under Division 4 of Part VI.
79 Temporary food premises, mobile food
premises or food vending machine for
30 which notification has been given
(1) This section applies if immediately before
the commencement date, the operation of a
temporary food premises, mobile food
561305B.I-10/6/2009 106 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 4--Amendments Relating to Single Notification or Registration Scheme
s. 57
premises or food vending machine has been
notified under Part VI of the unamended Act.
(2) Notification of the operation of the
temporary food premises, mobile food
5 premises or food vending machine is taken to
have been given under Division 4 of Part VI.
__________________".
57 Schedule 1
After item 8 of Schedule 1 to the Food Act 1984
10 insert--
"9 An offence 2 penalty Failure to
against units for a lodge a
section 43I(1) natural statement of
person; trade".
4 penalty
units for a
body
corporate
__________________
561305B.I-10/6/2009 107 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Part 5--Repeal of Amending Act
s. 58
PART 5--REPEAL OF AMENDING ACT
58 Repeal of amending Act
This Act is repealed on 1 July 2012.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
561305B.I-10/6/2009 108 BILL LA INTRODUCTION 10/6/2009
Food Amendment (Regulation Reform) Bill 2009
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561305B.I-10/6/2009 109 BILL LA INTRODUCTION 10/6/2009
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