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Food Amendment (Regulation Reform)
Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
General
The overall objectives of the Food Amendment (Regulation Reform) Bill
2009 (the Bill) are to amend the Food Act 1984 (the Act) to--
· strengthen the governance and accountability of food safety
regulators;
· reduce the duplication of regulatory requirements and better
target regulation to the risk associated with particular food
premises, whilst continuing to protect public health; and
· improve the enforcement and administration of the Act.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 is the commencement provision. The effect of this provision is
as follows:
Part 1 (which contains the purposes and commencement
provisions) comes into operation the day after the day on which
the Act receives Royal Assent.
Part 2 comes into operation on a day or days to be proclaimed,
with a default commencement date of 1 July 2010. Part 2
contains the changes to the Act to--
· improve the governance of the food regulation system;
· establish the new food premises classification scheme
and associated regulation; and
· create a register of convictions under the Act.
561305 1 BILL LA INTRODUCTION 10/6/2009
Part 3 comes into operation on a day or days to be proclaimed,
with a default commencement date of 1 March 2011. Part 3
contains provisions to improve the enforcement tools of the Act
such as--
· allowing the issuing of infringement notices for certain
breaches of the Act, including failures to comply with
various food safety standards;
· establishing a means of co-ordinating the routine
sampling on a state-wide basis of food sold in Victoria,
so that food regulators gain more reliable data about the
quality of food handling.
Part 4 comes into operation on a day to be proclaimed, with a
default commencement date of 1 July 2011. Part 4 establishes a
state-wide system for the single notification or registration of
temporary food premises (such as market stalls) and mobile food
premises (such as food vans).
The staggered commencement dates for Parts 2, 3 and 4 will
enable the necessary tasks associated with the implementation for
each Part to be taken in sequence.
PART 2--GENERAL AMENDMENTS
Clause 3 omits some definitions and inserts some new definitions in
section 4(1) of the Food Act 1984.
The definition of declared premises is omitted. The concept of
"declared premises" is to be replaced by a more flexible risk
classification system whereby classes of food premises declared
under the new section 19C of the Act will have to comply with
specified food safety requirements.
Clause 4 omits the reference to "declared premises" in section 4F of the
Act as this term is no longer used under the Act.
Clause 5 inserts new section 4H into the Act which provides that when the
Act applies the Code, a reference in Standard 3.1.1 of that Code
to an appropriate enforcement authority is taken to be a reference
to the registration authority. This provides that a registration
authority--typically a council--may make an exemption or
decision in accordance with the food safety standards in the Code
as the appropriate enforcement agency, and a food business
cannot be found to be in breach of section 16 if it adheres to,
or relies upon, that decision or exemption.
2
Clause 6 makes an amendment consequential upon the removal of
Part IIIB and its replacement by a new Part IIIB in clause 13.
Clause 7 inserts new Part IA--"Administration and Reporting" into the
Act which contains provisions intended to promote a greater level
of consistency and accountability in the administration of the Act
across the state. This includes providing that--
· the Department of Human Services (the department) is
to provide information and guidance to councils;
· councils are required to report specified data to the
department about how they have administered the Act,
such as the number of food premises registered, and
statistics about the type and extent of enforcement
action taken; and
· the department must publish an annual report on food
regulation. This will include statistics such as the
collated data reported by councils. It will inform the
public about how the Act is being administered.
The details are as follows:
New section 7A sets out the role of councils under the Act.
New section 7B sets out the role of the department under the Act.
New section 7C(1) provides that for each calendar year, the
department must publish an annual report on food regulation.
Section 7C(2) specifies the information which must be contained
in this annual report.
New section 7D(1) provides that the Secretary of the department
(the Secretary) may, by notice published in the Government
Gazette, declare the information that a council is required to
provide to the department; the intervals at which the information
is required; and the format or manner in which the information
required is to be provided. Section 7D(2) provides that prior to
making a declaration or making a substantial alteration to it, the
Secretary must consult with a body that represents local
government. Section 7D(3) provides that a council must comply
with a declaration made under section 7D(1).
New sections 7E(1) and 7E(2) enable the Minister for Health to
give a written direction to a council, a chief executive officer of a
council, a class of councils or the chief executive officers of a
class of councils, in relation to any matter concerning the
administration of the Act by a council or councils.
3
Section 7E(3) limits this power to those circumstances where the
Minister considers that the direction is in the public interest and
will promote the objectives of the Act or the consistent
administration of the Act across Victoria. Section 7E(4)
prohibits a direction being made in relation to the decision of
council or an authorised officer under the Act concerning a
particular food premises or particular proprietor.
Section 7E(5) imposes consultation requirements that apply,
unless the Minister considers a direction is required as a matter of
urgency. For instance, if a direction has been given to a specific
council or chief executive officer of a council, the council or
chief executive officer of the council must be given a draft copy
of the direction and have the opportunity to comment.
Section 7E(6) provides that where a council or chief executive of
a council is given a direction under section 7E(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.
Clause 8 inserts a note at the foot of section 16(1) of the Act. Section 16
requires compliance with the Code. The Code imposes a
minimum requirement that food businesses notify the registration
authority about their operations. This note clarifies that under
section 37, if a person makes an application for registration of a
food premises or a notification of its operation is given, in
accordance with Part VI of the Act, that person has also complied
with the notification requirement in the Code.
Clause 9 substitutes new Part III--"Orders" for Part III of the Act.
Currently Part III of the Act contains provisions that enable
orders to be made in relation to food premises and food vending
machines. Appeals against these orders can be made to the
Magistrates' Court.
This clause removes this Part, and substitutes new provisions
dealing with the same subject matters. These new sections are
based substantially on the current provisions with some new
requirements.
New section 19 deals with orders to require premises to be made
clean and for food to be made safe. Currently, before making an
order, the Secretary or registration authority must be satisfied
food prepared at the premises is unsafe. The new section 19 that
is inserted also enables an order to be made if food is being
prepared, sold or otherwise handled in a manner that makes it
likely the food is unsafe or unsuitable.
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This new section maintains the current power of the Secretary
under the Act to temporarily close premises, pending the
premises being put in a clean state or food prepared safe.
The new section 19 retains this power and also allows--
· a council or chief executive officer of a council to make
such an order; and
· a council, chief executive officer of a council, or the
Secretary (as a relevant) to make a more limited order
which prohibits the proprietor from engaging in a
specified activity. For instance, if a range of products
are manufactured on a premises, and only one is
considered likely to be unsafe, the order may be limited
to one type of food or process.
Section 19(1) sets out the circumstances in which the relevant
authority can make an order under section 19.
Section 19(2) sets out what things the relevant authority can
direct to be done under the written order.
Section 19(3) specifies the directions the relevant authority may
make regarding the food premises pending compliance with the
requirements under subsection (2).
Section 19(4)(a) contains a new requirement that a copy of an
order that includes a direction to temporarily close a food
premises may be affixed to the premises, and permits the relevant
authority to inform the public of a such an order by notice
published in a newspaper or any other means.
Section 19(4)(b) requires that if the relevant authority who made
the order is a council or a chief executive officer of a council, the
relevant authority must notify the department of the order.
Section 19(4)(c) requires that if the relevant authority is not the
registration authority for the premises, the relevant authority must
notify the registration authority of the order and any appeal
against the order.
Section 19(5) specifies when an order under section 19 is to take
effect.
Section 19(6) sets out the steps which must be taken by the
relevant authority, including revoking the order, if satisfied that
the order has been complied with.
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Section 19(7) provides that it is an offence to contravene an order
under section 19. The maximum penalty for this offence has
been increased from 100 penalty units (existing section 19(10))
to 120 penalty units.
Section 19(8) provides that it is an offence to remove a copy of
an order affixed to a premises while the order remains in force.
Section 19(9) sets out the meaning of relevant authority for the
purposes of section 19.
New section 19A inserts similar requirements in relation to food
vending machines or equipment used in connection with the sale
of food currently under section 19. New section 19A(7) provides
that it is an offence to contravene an order under section 19A.
The maximum penalty for this offence has been increased from
50 penalty units (existing section 19(11)) to 120 penalty units,
consistent with the penalty for the equivalent offence under
section 19.
Clause 10 repeals the heading to Part IIIA of the Act. This has the effect of
consolidating the provisions dealing with orders under the one
Part.
Clause 11 Subclause (1) substitutes "Orders relating to food handlers" for
the heading to section 19B of the Act.
Subclause (2) repeals sections 19B(4), 19B(5) and 19B(6) of the
Act as they are incorporated into the new section 19BA.
Clause 12 inserts new 19BA--"Appeals against orders".
New 19BA deals with appeals against orders made under Part III
of the Act. This is based on the provisions regarding appeals in
the current section 19 and 19A of the Act, and consolidates the
appeal provisions.
Section 19BA(I) provides a right of appeal and sets out
conditions relating to the appeal including who may appeal, the
time in which the appeal is to be lodged and the Court to which
the appeal is to be made.
Section 19BA(2) specifies the powers of the Magistrates' Court
on hearing an appeal under subsection (1).
Section 19BA(3) is a new provision that provides that where an
order is varied or revoked by the Court and the original order was
published under section 19(4)(a)(ii)--because it relates to
temporarily closing premises--the person who made the order
must give notice of the variation or revocation of the order to the
public.
6
Sections 19BA(4) sets out the powers of the Court in relation to
the costs of the appeal.
Clause 13 Substitutes a new Part IIIB--"Food Safety" for Part IIIB of the
Act.
The purpose of this clause is to move from a two tier system
where registration is compulsory and in which it is mandatory for
declared premises to comply with requirements relating to food
safety programs and other matters to a more flexible system of
classification where the requirements pertaining to the different
declared classes of food premises vary according to the level of
risk associated with each class of food premises.
The numbering of the current Part IIIB has been retained where
appropriate in the new Part IIIB to be substituted. This is
because a number of the sections in the current Part IIIB are
being re-enacted with varying degrees of modification (for
example sections 19O, 19Q and 19T) and it is convenient to
retain that numbering.
Division 1--Classification of food premises
New section 19C(1) provides that the Secretary may declare
classes of food premises having regard to a range of factors,
including the food handling activities undertaken.
Section 19C(2) enables the Secretary to specify for each class of
food premises the following:
· whether the premises are required to have a food safety
program (or alternatively must maintain minimum
records);
· whether the premises are required to have a food safety
supervisor;
· whether the premises are exempt from the requirement
under section 39 to be inspected annually.
Section 19C(3) provides that where the Secretary has required
that a declared class of food premises is to have a food safety
program, the Secretary must specify the type of food safety
program and the requirements for the audit or assessment of the
premises.
Section 19C(4) provides that the Secretary must comply with the
notice requirements set out in section 19CA prior to making or
varying a declaration under section 19C.
7
New section 19CA sets out the notice requirements which the
Secretary must comply with prior to making or varying a
declaration under section 19C. This is for the purpose of giving
interested persons an opportunity to comment on a draft
declaration.
Division 2--Minimum record keeping
New section 19CB provides that the Secretary can declare the
record keeping requirements for food premises that are required
by a declaration under section 19C to keep minimum records.
This is an alternative to requiring the keeping of a food safety
program (new section 19C(2)(a)).
In specifying these requirements, the Secretary is to take into
account the declared class of food premises to which the
premises belong and the food handling activities undertaken at
the premises. A failure to comply with the requirements can
have various consequences relating to the registration of the
premises, such as enabling the council to refuse registration in an
appropriate case. Section 19CB(6) provides that it is an offence
for the proprietor of such a food premises not to keep the
minimum records required at the premises to which they relate.
Division 3--Food safety programs
This Division sets out the provisions regarding food safety
programs (FSPs). It is modelled to a large extent on the existing
provisions in the Act about FSPs.
New section 19D sets out the requirements of a food safety
program and substantially re-enacts the current section 19D.
New section 19DB provides that the Secretary may register a
food safety program template and sets out the requirements for
the registration process. In the event that the registration of a
food safety program is revoked, any standard food safety
program created using the template will cease to be a standard
food safety program at the expiration of the registration of the
premises using the program.
New Section 19DC sets out the definition of a standard food
safety program and the conditions with which a standard food
safety program must comply.
New section 19DD provides that the Secretary may declare that
a specified quality assurance system or code may be used to
develop a food safety program. A food safety program
developed under a quality assurance system or code will only
be a "QA food safety program" if it has been issued with a
8
certificate by an approved food safety auditor which confirms
that the program meets the requirements specified in this section,
including that the program is developed under a declared quality
assurance system or code.
New section 19E sets out the matters which the proprietor of a
food premises must comply with when they are required to have
a food safety program under section 19C. These requirements
include ensuring that the food safety program complies with the
requirements under section 19D (e.g. identifies and addresses
hazards associated with the food handling operations), ensuring
that the program is a type permitted by section 19C to be used by
the premises, complying with the food safety program, and
providing a copy of the program to the registration authority if
requested. Section 19E(4) provides that failure to comply with
the requirements under this section may have consequences
relating to the registration of the premises, including allowing a
council to refuse to renew registration.
New section 19EA sets out the steps which must be taken by the
proprietor of a food premises required to have a food safety
program when there is a change in the activities carried out at the
premises. The program must be revised so that it continues to
address the hazards associated with the food handling operations.
Section 19EA provides that a failure to comply with these steps
may have an affect upon the registration of the premises.
New section 19F provides that it is an offence for a proprietor of
such a food premises not to keep the food safety program at the
premises.
Division 4--Food safety supervisors
New section 19G sets out the requirements for a food safety
supervisor and maintains the current approach to determining
competency of these staff.
New section 19GA provides that the proprietor of a food
premises must have a food safety supervisor when required to do
so under a section 19C declaration. However, the section
provides that where a food premises uses a QA food safety
program that includes competency based or accredited training
for staff at the premises, a food safety supervisor is not required
despite a section 19C declaration, because the proprietor has
alternative training arrangements in place that are being
independently audited. A failure to comply with this section may
have an affect upon the registration of the premises.
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New section 19GB provides that the proprietor of such a food
premises must give the name and qualifications of their food
safety supervisor to the registration authority within 7 days of a
request made in writing.
Division 5--Assessment and audit requirements for
food premises
New section 19H deals with the assessment and audit
requirements for food premises required to have a food safety
program under a section 19C declaration. The section provides
that a section 19C declaration may specify the requirements in
relation to assessments and audits. That declaration may specify
the default (or standard) requirements--e.g. one audit per year.
The declaration may also specify the range of frequencies and
intervals of audits and assessments that may be applied by the
registration authority to any particular food premises. If a
registration authority is to determine that a range of frequencies
and intervals of audits and assessments other than the default
requirements are to apply to a particular premises, it must take
into account the food safety performance of the food business
operating the premises and any guidelines issued by the
Secretary. If, for instance, there have been repeated failures to
comply with the Act, the council as the registration authority may
determine that it is appropriate to increase the number of audits
or assessments so that the premises can be monitored. Once the
premises becomes compliant, the council may reduce the audit or
assessment number back to the default requirement.
New section 19HA defines food safety assessment and food
safety audit. Both a food safety assessment and a food safety
audit determine compliance with the "food safety requirements"
applying to the premises. These include whether the food safety
program has been complied with, whether any deficiencies
identified in a previous audit or assessment have been remedied,
and whether the Food Safety Standards in the Code are being
complied with. These are applicable to all premises that must
have any type of food safety program.
In addition, a food safety assessment determines that in the case
of a standard food safety program, the program complies with the
requirements under new section 19DC(2) (such as that the
program has been created using the correct template).
A food safety audit involves determining whether the food
safety program is adequate. It will be adequate if it complies
with new section 19D (such as identifying and addressing
hazards associated with the food handling operations).
This determination must be made by an auditor who is approved
10
under the Act as it requires specialised expertise in auditing (new
sections 19K and 19P). An audit to determine adequacy is only
needed where a (tailor made) non-standard program is used for
the premises. It is not needed if the proprietor develops a
standard program using a template registered under new section
19DB by the Secretary, as this template has already been
determined to be suitable as part of that registration process.
New section 19I provides that a food premises must have a food
safety assessment if it is of a class that is required to do so under
the declaration made under section 19C. The number and
frequency of assessments will be those that apply in the particular
case under section 19H. A food safety assessment must
ordinarily be conducted by a registration authority.
New section 19IA applies where there are deficiencies identified
in the food safety assessment conducted by the registration
authority. The registration authority must give the proprietor
written notice identifying the deficiencies and advising the time
in which the deficiencies must be remedied. Section 19IA
provides that a failure to comply with the notice may have
consequences relating to the registration of the premises.
New section 19J provides that if the declaration under
section 19C permits a food safety auditor to undertake a food
safety assessment, and the proprietor opts for this approach, the
assessment may be conducted by such an auditor instead of the
registration authority. In such a case, the proprietor of the food
premises must ensure that it is conducted as required under
section 19H and failure to do this may have consequences
relating to the registration of the food premises. If the food
safety auditor considers that the food safety requirements have
been complied with and, in the case of a standard food safety
program it complies with section 19DC(2), the auditor must give
the proprietor a certificate confirming that opinion. This will be
relevant information for the registration authority, for instance
when determining whether to renew registration.
New section 19JA applies where there are deficiencies identified
in the food safety assessment conducted by a food safety auditor.
The auditor must give written notice to the proprietor of the
premises identifying the deficiencies and advising the time in
which the deficiencies are to be remedied. The food safety
auditor must check, within 14 days of the expiry of the period
specified in the notice, whether the deficiencies have been
remedied. The provisions outline what kind of certificate may
be issued after the auditor conducts this check, depending upon
whether the proprietor has remedied the deficiencies.
This information will be relevant to the registration authority.
11
New section 19K(1) specifies that if a food safety audit is
required to be conducted at a particular premises under a
declaration under section 19C, then the audit must be conducted
as required under section 19H (which relates to frequency and
intervals of audits). The audit must be performed by an approved
food safety auditor whose certificate under section 19P states
they are qualified to conduct an audit for that particular class or
category of food premises. Section 19K(2) provides that a failure
to comply with these requirements may have consequences
relating to the registration of the food premises.
New section 19L provides that where a food safety auditor
conducts a food safety audit and considers that the food safety
requirements have been complied with and the food safety
program is adequate, the auditor must issue a certificate
confirming that opinion. This will be relevant information for
the registration authority, for instance when determining whether
to renew registration.
New section 19M applies where a food safety auditor conducts a
food safety audit and considers that the food safety requirements
have not been met or the food safety program is not adequate.
The auditor must give the proprietor of the food premises a
written notice identifying the deficiencies and advising that the
deficiencies must be remedied within the time specified in the
notice. The food safety auditor must check, within 14 days of
the expiry of the period specified in the notice, whether the
deficiencies have been remedied. A notice, however, is not
required if the food safety audit is conducted by the registration
authority and an order has been made under Part III, as that order
will require the deficiencies to be remedied. In this situation the
auditor must still check within 14 days after the time allowed for
compliance whether the deficiencies have been remedied.
This section also outlines what kind of certificate may be issued
after the auditor conducts this check, depending upon the whether
the proprietor has remedied the deficiencies. This information
will be relevant to the registration authority. If a notice is given
by a registration authority under this section, a failure to comply
with it may be taken into account by the registration authority in
relation to the registration of the food premises.
New section 19N applies where a food safety assessment or
food safety audit is conducted by a food safety auditor who is
not an officer or member of staff of the registration authority.
The section details the information which must be provided by
the food safety auditor to the registration authority. All audit and
assessment certificates must be given to the registration authority.
In addition, where deficiencies identified by an auditor are not
12
remedied by the proprietor, the auditor must notify the
registration authority of that failure. This is to ensure that the
registration authority has all relevant information arising from the
audit or assessment, for the purposes of decision making relating
to registration, or to take immediate action if a deficiency may
lead to a serious risk of food being sold or prepared that is unsafe
or unsuitable.
New section 19NA(1) provides that the registration authority
may request that the proprietor of a food premises provide within
14 days copies of any report prepared by a food safety auditor
within the previous 4 years. Section 19NA(2) provides that a
failure to provide this information may be relevant to the
registration of the food premises.
Division 6--Food Safety Auditors
New section 19O substantially re-enacts the current section 19O.
It provides that it is an offence for a person to conduct a food
safety audit unless he or she is an approved food safety auditor
for the relevant class or category of food premises.
New section 19P sets out the process for the certification of food
safety auditors.
New section 19Q substantially re-enacts the current section 19Q.
It provides that it is an offence for an approved food safety
auditor not to comply with any conditions imposed on their
certification.
New section 19R provides that it is an offence for a person to
impersonate an approved food safety auditor.
New section 19S sets out the circumstances in which a food
safety auditor must not conduct a food safety due to a conflict
of interest.
New section 19T substantially re-enacts the current section 19T.
It sets out the circumstances in which a person's certification as
an approved food safety auditor may be revoked.
New section 19U deals with the circumstances where a food
safety audit is conducted by an officer or member of the staff of
a council (who is personally certified under new section 19P).
Section 19U(1) provides that an officer or member of the staff of
a council can conduct a food safety audit of fixed food premises
within that council's municipal district if the audit is conducted
on behalf of the council. Clauses 16 and 53 insert new provisions
enabling certain mobile food premises or temporary food
premises to operate outside the municipal district in which they
are registered. New section 19U therefore provides that an
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officer or member of the staff of a council may conduct an audit
of temporary food premises or mobile food premises if the audit
is conducted on behalf of any council, as the premises may be
audited whilst in any district.
New section 19U(2) provides that the proprietor of a food
premises must pay the council the reasonable costs of the audit.
Section 19U(3) provides that the council may waive or vary the
costs of the audit if there are special circumstances based on
criteria fixed by the council. Section 19U(4) requires that the
council make available for inspection by the public the method of
determining the reasonable costs of an audit and the criteria for
waiving or varying the costs of an audit. These provisions are
intended to ensure that there is a transparent process in place for
the charging of audit fees by councils. Given that there are also
private auditors certified under the Act, the fees to be charged
when audits are conducted by a council auditor are to be set so as
to recover the reasonable costs associated with conducting the
audit, unless there are special circumstances (for example
waivers or reductions for charitable organisations).
Division 7--Miscellaneous
New section 19UA deals with the charging of fees by councils in
relation to food safety assessments and inspections of food
premises. Sections 19UA(1) and 19UA(2) provide that a council
may charge a fee for--
· a food safety assessment, except where the assessment
is the standard or default assessment required under a
section 19C declaration; and
· an inspection, except where it is required pursuant to
section 38(1)(c) or section 39.
This is intended to ensure that no fee is charged for the
conducting of the minimum number of assessments or
inspections that ordinarily apply under the Act to the particular
class of premises.
Sections 19UA(3) sets out the factors to be taken into account
by a council in determining the fees that may be charged.
Section 19UA(4) provides that in deciding whether to charge a
fee in a particular case, the council must consider the history of
compliance (or non-compliance) of the proprietor of the food
premises. The main purpose of the provision is to enable fees to
be charged, where appropriate, in relation to businesses that have
repeatedly failed to comply with the Act.
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Section 19UA(5) requires that the council make available for
inspection by the public the method of determining a fee under
subsection (3) and the considerations that apply under
subsection (4). Section 19UA(6) clarifies that the fee charged
must be paid to the council that conducted the assessment or
inspection. Section 19UA(7) provides that failure to pay a fee
charged by a council may be taken into account by the council
when deciding whether to renew the registration of the premises.
New section 19V substantially re-enacts the current section 19V.
It sets out the various exemptions which the Secretary may grant
to the proprietor of a food premises or proprietors of a class of
food premises in relation to food safety.
New section 19W provides the Secretary or the registration
authority with the power to direct the proprietor of a food
premises to comply with a requirement in new Part IIIB, or in
relation to the training of staff. The direction must be in writing
and must allow the proprietor at least 28 days to comply.
Clause 14 subclause (1) substitutes a new section 30(2)(a) into the Act.
This new section 30(2)(a) provides that an authorisation of an
analyst by the Secretary may be subject to any specified
conditions.
Subclause (2) inserts new sections 30(8) and section 30(9) into
the Act. New section 30(8) provides that a person who is
approved under the Safe Drinking Water Act 2003 to analyse
drinking water is also authorised to analyse water for the
purposes of the Food Act 1984.
Clause 15 inserts the heading "Division 1--General" after the heading to
Part VI of the Act as that Part is to be divided into a number of
Divisions..
Clause 16 substitutes new sections 35, 35A, 35B, 36 and 37 for the existing
sections 35, 36 and 37 of the Act.
New section 35 provides a definition for the registration authority
of a food premises.
New section 35A deals with the requirement that a food premises
be registered or its operation notified to the registration authority.
Section 35A(1) provides that it is an offence for the proprietor of
a food business to allow the business to operate without being
registered or whilst its registration is suspended. Under the
existing Act, the maximum penalty for operating a food business
that is not registered is 100 penalty units. This penalty has been
increased to 120 penalty units under new section 35A(1).
Section 35A(2) provides that it is an offence for the proprietor
15
of a food business that is exempt from registration under
section 38(1) or 38(2) to operate the business without notifying
the registration authority of its operation.
Section 35A(3) provides that where a temporary food premises or
mobile food premises is registered with a registration authority in
accordance with Division 3 and 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 the conditions of the original registration.
New section 35B provides a process for the recognition by a
council or the Secretary of the registration by another registration
authority of a specified temporary food premises or mobile food
premises or a specified class of temporary food premises or
mobile food premises or all temporary food premises or mobile
food premises. This section will only operate pending the
commencement of the mandatory state-wide system for
registration of temporary food premises and mobile food
premises introduced by Part 4 of this Bill. It is intended to give
those councils that wish to do so an opportunity to recognise the
registration decisions of other councils in relation to such
premises in the meantime, and to remove the need for those
premises to be registered by the recognising council as well as
the original council.
New section 36 provides that the Secretary may declare the
information required to be given to the registration authority
when a proprietor of a food business applies for registration of
a food premises or gives notification of the operation of a food
premises. Section 36(2) specifies the type of information that
can be the subject of a declaration. This information is to be
specified in a declaration so that it can accord with the classes
declared under section 19C, and reflect the regulatory
requirements that apply based on that classification.
New section 37 provides that the proprietor of a food business is
taken to have complied with the notification requirement under
the Food Standards Code if the proprietor has applied for
registration or made a notification of the intention to operate the
food business and has provided the information required under
section 36.
Clause 17 subclause (1) inserts new sections 38(1) and 38(2) before section
38(3) of the Act. Section 38 deals with exemptions from
registration. New section 38(1) provides the Secretary with the
power to exempt a food premises or class of food premises from
the requirement to be registered. New section 38(2) provides a
16
council with the power to grant exemptions save for a class of
food premises declared under section 19C.
Subclause (2) substitutes new sections 38(3) and 38(4) for the
existing sections 38(3) and 38(4) in the Act. New section 38(3)
imposes a requirement on a council to consult with the Secretary
before granting an exemption under section 38(2) for a class of
premises. This is to ensure that the exemption is appropriate,
bearing in mind the food premises classification system that is
established under new section 19C. New section 38(4) provides
that an exemption may be subject to conditions and amended,
varied or revoked.
Clause 18 inserts new Division 2--"Notification of premises exempt from
registration" after section 38 of the Act.
New section 38AA sets out the procedure for notification by the
proprietor of a food business operating or intending to operate
from a premises that is exempt from the requirement to register
under section 38(1) or 38(2). A notification is only required
once. (Compared with registration under new Division 3, which
generally only operates for 12 months).
New section 38AB sets out the circumstances in which a fee may
be charged by a registration authority for the receipt of a
notification under section 38AA. The process requires the
Secretary to first declare the maximum fee that may be charged
by a registration authority in the particular case.
Clause 19 inserts new heading "Division 3--Registration of food premises"
after section 38A of the Act.
Clause 20 substitutes new sections 38A, 38B, 38C, 38D, 38E, 38F and 39
for the existing sections 38A, 38B and 39 of the Act.
These changes are required to take into account the changes to
the classes of food and the associated requirements under the
new Part IIIB.
These provisions refer to the registration authority. This is
defined in new section 35. Usually the registration authority is a
council.
New section 38A specifies the information that is required to
accompany an application for registration or transfer of
registration of a food premises.
17
New section 38B specifies the process which must be undertaken
by the registration authority prior to registering or transferring the
registration of a food premises.
New section 38C specifies the information that is required to
accompany an application for renewal of registration of a food
premises.
New section 38D specifies the process that must be undertaken
by the registration authority prior to renewing the registration of
a food premises.
New section 38E allows for the registration authority to register a
food premises on a conditional basis. The section specifies the
circumstances in which conditional registration can be granted
and provides that the conditional registration must be for a
specified period not exceeding a prescribed time limit.
New section 38F requires the proprietor of a registered food
premises who knows that, as result of the change to the
operations of the premises, that premises falls within a higher risk
classification, to notify the registration authority of the change
within 14 days. If the classification has changed, the registration
authority must update the certificate of registration and may
require that the proprietor comply with the additional
requirements that apply.
New section 39 requires an annual inspection to be conducted by
a registration authority of food premises registered under the Act,
unless the premises is of a class which, under the declaration
made under new section 19C, is exempt from this requirement.
(For instance, a premises that is required to undergo another form
of independent check, such as a food safety assessment, may be
exempted from the inspection requirement.)
Clause 21 substitutes a reference in section 39A of the Act.
The effect of this amendment is that the provision dealing with
decisions to register despite minor defects will refer to new
sections 38B and 38D.
Clause 22 inserts an additional provision after section 40(1) of the Act.
The additional requirement is that a certificate of registration for
a food premises must specify the class of food premises declared
under new section 19C to which the premises belongs. This is to
ensure that the proprietor knows the nature of any requirements
under Part IIIB that apply to the premises.
18
Clause 23 inserts new provisions into section 40C of the Act. Registration
is normally for 12 months. These changes will enable a
registration authority, at the request of the proprietor, to grant or
renew the 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.
Clause 24 substitutes section 40D(1)(d) of the Act.
Section 40D currently sets out when a registration authority may
suspend or revoke the registration of a food premises. Clause 24
makes amendments to section 40D arising from the new Part IIIB
inserted by clause 13. For instance, it ensures that if there has
been a failure to comply with a food safety program, the
registration authority may take this into acount.
Clause 25 amends section 41A(2) of the Act so that fees relating to the
registration of food premises may--
· be varied according to the class of food premises under
a declaration under section 19C; and
· incorporate, in whole or in part, the costs associated
with the assessment and inspection of the premises.
Clause 26 replaces section 43 of the Act.
The new provision sets out the records that must be maintained
by each registration authority in relation to the registration of
food premises. If a person requests information held in these
records in relation to a particular food premises, the registration
authority must make the information about the premises available
to the person free of charge. This ensures that members of the
public can obtain reliable information from the registering
authority about whether a particular business is entitled, under
the Act, to be in operation.
Clause 27 inserts new Part 8A in the Act "Publication of Convictions".
This Part provides for the establishment of a register of
convictions for offences under the Act. The purpose of the
register is to inform the public about convictions for offences
committed in connection with the conduct of food businesses.
New section 53C provides that an appeal against a conviction
includes an appeal against the conviction and sentence, or
sentence only.
New section 53D(1) requires that the Secretary keep a register.
The register is to contain convictions for offences under the Act
or regulations.
19
New section 53D(2) specifies that the Secretary has discretion as
to the form of the register, however Subsection (3) sets out the
information that must be included in the register. It includes the
name of the person convicted, the name and address of the food
business and a description of the offence, and details of the
conviction such as the decision of the court and the penalty
imposed. This includes all aspects of the sentence.
New section 53D(4) provides that entries in the register are not to
occur until after the time provided in law for an appeal against
the conviction has expired, or if an appeal has been lodged within
time, that appeal has been dealt with by the court.
New section 54(5) specifies that the information to be recorded in
the register is to take into account the outcome of appeal
proceedings.
New section 53E provides that the register must be kept on an
internet website of the department.
New Section 53F specifies the circumstances under which
information is not to be included in the register. This includes
cases where the inclusion (and publication) of the specific
information would--
· contravene a court order suppressing or prohibiting the
publication of information;
· be contrary to the purpose of an order under the Family
Violence Protection Act 2008 or other similar orders;
· be contrary to any other law;
· disclose the address of a private residence, unless the
premises is open to the public for the purpose of selling
food.
Subsections (3) and (4) require the Secretary to consult the
Privacy Commissioner concerning the inclusion of an address in
the register if the inclusion in the register raises privacy issues
not identified in this section.
New Section 53G requires the relevant councils to provide to the
Secretary specified information about prosecutions of offences
under the Act or the regulations, and other relevant information.
This is to enable the register to contain the correct information at
the right time. Usually the relevant council will be the council
which has registered the premises.
20
This section also permits the Secretary to obtain information
from any council or person with knowledge of the particular
proceeding for the purpose of obtaining reliable information to
include in the register of convictions, to verify information or to
determine whether information should be included in the register.
New Section 53H concerns the correction of information in the
register. The Secretary is obliged to correct any error as soon as
practical after becoming aware of such errors. The correction of
errors or omissions can be requested by a person directly affected
by the publication of the information.
New Section 53I sets out when all of the information relating to
a conviction is to be removed from the register.
These circumstances are as follows:
· The information relating to the conviction has been
published on the register for 12 months;
· The Secretary becomes aware that leave to appeal has
been granted;
· The conviction or sentencing order has been stayed by a
court; or
· The removal is otherwise required by this Act or
another law.
Section 53I(2) requires information to be re-entered if any appeal
against the conviction is abandoned or dismissed or leave to
appeal against the conviction is refused.
Section 53I(3) specifies that where the outcome of an appeal is to
confirm or impose a conviction for an offence against the Act or
regulations the information must be re-entered on the register and
updated to include the outcome of the appeal.
New Section 53J applies if--
· a food premises is identified in the register as the
premises at which an offence has been committed; and
· the registration of that premises has been transferred to
a different proprietor since the offence was committed.
In such a case, either at the Secretary's initiative, or at the request
of the proprietor of the premises, the Secretary may add
information to the register to indicate that the registration of the
premises has been transferred.
21
Clause 28 amends section 54 of the Act. Section 54 regulates when an
authorised officer may disclose information or publish a
document obtained in connection with the administration of the
Act. Currently disclosures or publications can be made in
circumstances such as in connection with the administration of
the Act under section 54(1)(b). This clause 28 replaces this
paragraph with new paragraphs that enable disclosure or
publication in the following circumstances:
· in connection with the administration of the Act or
another Victorian Act that regulates the food premises
or activities at the food premises to which the disclosure
relates. (For example, the Seafood Safety Act 2003,
the Meat Industry Act 1993, the Dairy Act 2000, or
the Health Services Act 1988 to the extent that it
applies to hospitals); or
· for the administration of the Aged Care Act 1997
(Commonwealth), or an Act equivalent to the Food Act
in another State or Territory; and
· to prevent or lessen a serious threat to public health.
This clause also provides that a person does not commit an
offence under this section if the information was publicly
available before, or at the time, the information was disclosed.
Clause 29 substitutes section 58A of the Act and concerns delegations by
councils.
New section 58(1) permits councils to delegate to officers and
members of staff powers and discretions under Part III of the Act.
Part III concerns powers in respect of unclean food premises.
The only power under this Part that a council cannot delegate is
the power to temporarily close a food premises or prohibit the
premise from being used for a specified purpose. Given the
gravity of such a decision, under new section 19 as inserted by
clause 9 of the Bill, generally this power is only to be able to be
exercised by the council itself or the chief executive officer
(CEO) of a council.
The provision also allows councils to delegate to officers and
members of staff powers under new Part IIIB regarding food
safety programs and related regulatory requirements, and new
Part VI--regarding the registration of food premises.
(Currently councils may delegate these powers in relation to the
existing provisions in these Parts.) This section also maintains the
power to delegate with respect to prosecution decisions under
section 46(5).
22
New section 58A(2) provides that a decision by a council officer
or member of staff to refuse to grant, renew or transfer
registration of a food premises is of no effect until ratified by
the council or CEO of the council.
Clause 30 inserts a new section 58B concerning matters occurring outside a
registration area.
The provision provides that in the case of temporary food
premises or mobile food premises a registration authority may
take action in relation to a thing done or omitted to be done at the
food premises regardless of the place where the thing was done
or omitted to be done.
This section also permits a registration authority to take into
account inspections, assessments and audits undertaken by
another registration authority that concern temporary food
premises or mobile food premises.
Clauses 16 and 53 insert new provisions ensuring that mobile
food premises or temporary food premises will, for the first time,
be able to operate lawfully in multiple districts without
registering separately in each district. To date, councils have
registered premises in their own district and generally only had
regard to information derived from their own district. This clause
makes it clear that a registering council can also take into
account, and act upon, inspections, assessments and audits
undertaken by another council (as the business may be assessed
whilst trading in that other council's district) and things done by
the business whilst in that other district. This will ensure that the
regulatory regime established in the Act can apply effectively to
these premises even though they operate across municipal
boundaries.
Clause 31 updates the references in section 59C(1)(a) of the Act by
substituting "Part III" for the words "19 or 19B".
Clause 32 substitutes a new heading for Part XII of the Act.
The heading for "Transitional Provisions" is removed and
substituted with the heading "Part XII--Transitional Provisions
for Food (Amendment) Act 2001". This clarifies that the
transitional provisions in that Part relate to that 2001 Act.
They are not relevant to the transitional arrangements for this
Bill. The new transitional arrangements that will apply when
Parts 2 and 4 of this Bill come into effect are outlined in
clauses 33 and 56 respectively.
23
Clause 33 inserts a new Part XIII in the Act.
The title of the new Part is "Part XIII--Transitional and savings
provision for Part 2 of the Food Amendment (Regulation
Reform) Act 2009".
New section 64 contains two defined terms. The term
commencement date means, unless stated otherwise, the date on
which clause 13 of this Bill comes into force. This is because
clause 13 inserts the new Part IIIB into the Act relating to food
safety, which sets out provisions such as the declarations of
classes of food premises and associated regulatory requirements.
The transitional provisions in this clause mainly relate to the new
Part IIIB. Accordingly the relevant date for the transitional
provisions must be the date Part IIIB commences operation.
The term unamended Act is defined to mean the Act in force
immediately before the commencement date.
The main purpose of these transitional provisions is to ensure that
in most situations--where outlined--things done under the
unamended Act may continue after the commencement date.
These provisions are not exhaustive. Where applicable, the
Interpretation of Legislation Act 1984 will still apply (for
example, to preserve proceedings or other actions already
commenced under the unamended Act before the commencement
date, and any appeal rights).
New section 65 provides that where a food premises meets (and
continues to meet) the requirements of 19E of the unamended
Act (concerning food safety programs) the proprietor is taken to
have complied with any obligation under section 19CB where
obligations for minimum records are specified. In such a case if
a proprietor is, after the commencement date, obliged to keep
minimum records instead of a food safety program, they do not
need to change their record keeping procedures during the current
registration period, but may continue to use the food safety
program instead, if they wish.
New section 66 concerns registration of food safety templates
registered by the Secretary under section 19DB.
Under section 19DB the Secretary has the discretion to register a
food safety program template by publishing a notice in the
Government Gazette. Notices registered under the unamended
Act are taken to be registered under new section 19DB.
These templates will continue to be registered, unless registration
is revoked under the amended Act.
24
New section 67 provides certain inspections of premises that
occurred within 12 months before a renewal of registration are
deemed to be assessments conducted under Part IIIB.
New section 68 concerns audits and contains deeming provisions
concerning the unamended Act concerning--
· food safety program audits for Part IIIB;
· section 19L certificates;
· section 19M certificates;
· advice given under 19M(1); and
· notices given under 19M.
This ensures that any audits undertaken under the unamended Act
can be counted as audits after commencement, for the purposes
of the amended Act.
New section 69 concerns food safety auditors. It ensures that
certification of auditors under the current section 19P is
preserved and will continue after commencement under the
amended Act.
New section 70 provides that premises registered under Part VI
of the unamended Act are taken to be registered under Part VI.
Such a registration will continue after the commencement date,
and will expire in accordance with its original expiry date. On
the expiry date--
· those premises that continue to require registration
under the amended Act will be able to apply for renewal
of registration; and
· those premises which do not require registration under
the amended Act will be subject to the new requirement
to notify the registration authority about their operations
under new section 35A(2) which is inserted by
clause 16.
New section 71 grants registration authorities discretion to
revoke or suspend the registration of food premises or give
directions if immediately before commencement a ground for
revocation or suspension existed under Part IIIB or section 40D
of the unamended Act.
25
New section 72 provides that regulation 10 of the Food (Forms
and Registration) Regulations 2005 which specifies the
particulars that must be set out in a register book kept under
current section 43, will apply to new section 43 after the
commencement date under the amended Act. A reference in the
regulation to "register book" is to refer to a reference to records
required to be kept in new section 43.
New section 73 provides that the Secretary must include in the
register of convictions required to be kept under section 53D a
conviction that was committed before the commencement of
clause 27 of this Bill, but only if the conviction for the offence is
recorded by the court after that date. (Clause 27 inserts into the
Act the provisions regarding the register).
New section 74 provides that the requirement for the Secretary
to provide a notice of intention in the Government Gazette
concerning the making of a declaration of classes of food
premises under new section 19C does not apply to the first
declaration made under that provision. This new section also
specifies that the first declaration takes effect on the date
specified in the notice under section 19C.
New section 75 provides that upon the commencement date,
declarations made under the current section 19C and exemptions
under the current section 19V cease to have effect. This is
because the new food premises classification system that is to be
established under new sections 19C and 19H will replace the
requirements in place under the current (and to be repealed)
Part IIIB and supersede the declarations and exemptions made
under that Part.
All food premises, including those registered prior to the
commencement date, will be subject to the new Part IIIB on
that date, subject to special arrangements as provided for in
the transitional provisions in new Part XIII.
However, section 75(2) provides that exemptions granted under
section 38(3) remain in force for 4 months unless revoked earlier.
This will ensure that there is sufficient time for the Secretary and
councils to consider whether any of these exemptions should be
continued under the new section 38 after taking into account the
new food premises classification system established under new
Part IIIB.
Section 76 empowers the Governor in Council to make
regulations containing transitional or saving provisions.
26
PART 3--AMENDMENTS RELATING TO ENFORCEABLE
UNDERTAKINGS, SAMPLING REQUIREMENTS AND
INFRINGEMENT OFFENCES
Clause 34 inserts a new provision PART 111A--"UNDERTAKINGS" into
the Act.
New section 19BB provides that in the case of contraventions of
sections 13, 16(3) and 16(4), the Secretary may accept a written
undertaking from a person.
Section 19BB(2) provides that undertakings must name the
premises or business, set out the action proposed to be taken, the
timeframe in which the action is to be taken and any other
relevant matters.
Section 19BB(3) provides that undertakings can be varied or
withdrawn with the consent of the Secretary at any time.
Section 19BB(4) provides that while an undertaking is in force,
proceedings may not be brought for an offence relating to the
matter referred to in the undertaking.
Sections 19BB(5) and (6) permits the Secretary to authorise the
Director of Consumer Affairs and councils to accept
undertakings.
New section 19BC(1) concerns consent orders and enforcement
of undertakings. With the consent of the person who gave the
undertaking the Secretary may apply to the Magistrates' court
for an order directing the person to comply with the undertaking.
On application under subsection (1), the Magistrates' Court may
by order direct the person who gave the undertaking to comply
with it.
Sections 19BC(3) and (4) are concerned with an application
made without the consent of the person who gave the
undertaking. They enable an application to be made to the
Magistrates' Court where the secretary considers that a person
has breached any of the terms of the undertaking. The Court
may make orders requiring compliance with the undertaking.
Section 19BC(5) permits persons who are authorised to accept
undertakings under this section to exercise the powers and
discretions set out in this section. This includes enforcing an
undertaking that the person has accepted.
27
Clause 35 inserts a new provision after section 31(a) of the Act.
Section 31 of the Act requires an analyst to make an analysis of
any article submitted for analysis. The addition to this provision
requires analysts to submit reports about samples obtained for
analysis under new section 32(1) in accordance with new
section 32(2).
Clause 36 inserts new section 31A after section 31 of the Act.
New section 31A provides that interstate analysts are taken to be
authorised under section 30 to carry out analyses for the purposes
of the Act. This applies to analysts who are authorised under a
corresponding law of another State or Territory to carry out
analysis. Section 31A(3) is required because an interstate analyst
is not subject to the duties of an analyst that otherwise apply to a
Victorian analyst by virtue of section 31.
Clause 37 substitutes section 32 of the Act.
The new provision requires each council to submit food samples
in compliance with the food sampling declaration made by the
Secretary under new section 32A. This enables the council to
arrange for testing for bacteria or other micro-organisms to assess
whether food prepared and sold in its municipal district is
generally safe for human consumption.
The provision also requires an analyst to prepare and provide
reports concerning the number of analyses made and the results
to the council and the Secretary.
Subsection (6) requires food samples submitted for analysis to
be purchased (under current section 22) from premises that are
registered by the council or have notified the council about their
operations.
The samples are not taken for the purposes of prosecuting a
particular business. They are to obtain more reliable picture
about food handling in the municipal district, to develop policy
and assess the effectiveness of food regulation, and to inform
council's general approaches to administering the Act.
Subsection (7) therefore disapplies various provisions in the Act
that are relevant to prosecutions, as the sample is not taken for
the purpose of a prosecution. It also provides that the results of
analysis is generally not admissible against a business in any
criminal or civil proceeding.
28
However, the sample would be admissible in proceedings arising
in relation to an order made under the current Part 7 of the Act.
Part 7 contains emergency powers in relation to food to enable
the Secretary to prevent or reduce a serious danger to public
health.
The sampling regime under new section 32 is not designed to
monitor immediate health risks from food businesses.
However, if the Secretary becomes aware that there is a serious
danger to public health arising from the food or the food handling
practices of the food business, the Secretary would need to
consider whether to exercise an emergency power under Part 7.
An order under Part 7 can include recalling food that is
contaminated or is otherwise dangerous. If the delay in obtaining
further testing of the food samples from the business in question
may take too long, given the nature of the risk, it may be
necessary to rely on the test results received under the routine
sampling regime under new sections 32 and 32A. Were this to be
done, the results of the evidence would need to be admissible in
any legal proceedings that may arise as a result of the making of
the order, where relevant, given that the sample was taken into
account in the making of the order.
Clause 38 This clause inserts a new provision, 32A after section 32 of the
Act.
New provision 32A sets out the requirements for sampling
requirement declarations published in the Government Gazette
by the Secretary.
The declaration may specify the number and type of food
samples to be obtained and submitted for analysis by each
council for each period or for a particular survey.
The declaration may specify if a particular food premises or
type or class of food premises is to be sampled, the manner of
analysis, information to be provided with the sample to the
analyst, other matters relevant to the samples, and the
information that must be included in the report of the results of
the analyst given under section 32(2).
Clause 39 This clause inserts a new section 56A after section 56 of the Act.
New section 56A concerns infringements offences.
Subsection 1 empowers an authorised officer under the Act to
serve an infringement notice on a person who has committed an
offence specified in column 2 of Schedule 1 (to be inserted by
clause 42) or any other offence specified in regulations.
29
Subsection 2 provides that these offences are infringement
offences for the purposes of the Infringements Act 2006.
That Act will apply to these offences.
Infringement notices must be in the form required in section 13
of the Infringements Act 2006 and may contain other prescribed
details. The penalty for an infringement offence is specified in
Schedule 1, and in the case of prescribed offences, would be the
prescribed amount.
Clause 40 This clause inserts new subsections (2) and (3) into section 57 of
the Act.
The main effect of this provision is that where an authorised
officer of a councils issues an infringement notice, the
infringement penalty recovered in relation to that notice is
payable to the council.
Clause 41 This clause substitutes a new section 63B(1) of the Act.
The main change to the current Act in this provision is that it
prohibits a council from making a local law for, or with respect
to, food safety. A local law will not be needed to enable an
infringement notice to be issued, as the new section 56A (inserted
by clause 40 of this Bill) will enable authorised officers of
councils to issue infringement notices. This amendment will also
ensure that the requirements in the Act, including any relating to
the food premises classification scheme established under new
Part IIIB, can operate in a consistent manner throughout the
State.
Clause 42 inserts a new Schedule 1 after Part 12 of the Act.
Schedule 1 contains a table of infringement offences and the
penalty for each such offence. For instance, it lists certain
clauses in Standards 3.2.2 and 3.2.3 of the Code. The clauses
listed relate to certain requirements such as avoiding
contamination of food, ensuring temperature control to prevent
the growth of pathogens, and hygiene.
PART 4--AMENDMENTS RELATING TO SINGLE
NOTIFICATION OR REGISTRATION SCHEME
Clause 43 inserts and modifies defined terms in section 4(1) of the Act.
The effect of the changes to the definition of food transport
vehicle, read together with the inserted definition of water
transport vehicle is that private water carters transporting water
that is intended for human consumption will fall within the
definition of mobile food premises. This means that they will
30
be required to register under the new Division 4 of Part VI of the
Act inserted by Part 4 of the Bill.
Other terms inserted by this clause are relevant to the state-wide
system of registration and notification that applies to temporary
food premises, mobile food premises, and food vending machines
under the new Division 4 of Part VI of the Act.
Clause 44 inserts a new provision 4G, in the place of section 4G of the Act.
The provision deems food vending machines to be food premises
for the purposes of the Act.
Clause 45 inserts a new subsection after section 7A(d) into the new
section 7A of the Act. (Section 7A is inserted by clause 7 of
the Bill.)
The amended section 7A will provide that one of the roles of
councils is to participate in the state-wide system for the single
notification or registration of temporary food premises, mobile
food premises or food vending machines.
Clause 46 inserts a new provision after section 7C(2)(a) of the Act.
(Section 7C is inserted by clause 7 of the Bill.)
Section 7C concerns the preparation of an annual report on food
regulation by the department. This clause amends section 7C
by requiring that the report include statistics concerning the
registration of temporary food premises, mobile food premises
and food vending machines.
Clause 47 modifies section 19U(1)(b) of the Act.
New section 19U (as inserted by clause 13 of the Bill) provides
that an officer or member of the staff of a council may conduct an
audit of temporary food premises or mobile food premises if the
audit is conducted on behalf of any council, as the premises may
be audited whilst in any district. Clause 47 extends this provision
to food vending machines as these are also to be registered or
notified under the Act on a state-wide basis under Division 4 of
Part VI.
Clause 48 modifies section 35 of the Act.
The new section 35 (as inserted by clause 16 of the Bill) specifies
that the registration authority for a food premises is the council of
the municipal district in which the premises is located, or if
located on land that is not part of a municipal district, the
Secretary.
31
The new provision specifies that the registration authority for
temporary food premises, mobile food premises or food vending
machines is determined by the location of the "principal
premises" of the food business operating the premises or
machine. The "principal premises" is determined under the new
section 43D inserted by clause 53.
Clause 49 substitutes the section 35A of the Act that is inserted by
clause 16.
The new section 35A substituted by clause 49 sets out the
requirement to be registered or notify the registration authority.
The proprietor of a food business must not allow the business to
operate from any food premises not registered with a registration
authority or while registration is suspended.
The main change arising from this new section is that--
· in the case of a temporary food premises, mobile food
premises or food vending machine the premises must be
registered or notified in accordance with Division 4 of
Part VI of the Act; and
· in the case of a fixed premises that is the principal
premises in relation to such a temporary food premises,
mobile food premises or food vending machine, it must
be registered in accordance with Division 3 or 4 of
Part VI of the Act. (This will be a "component" of the
food business operating such premises. For instance, a
proprietor that operates a restaurant and also a market
stall that sells food that is routinely prepared at the
restaurant may choose to register both premises under
Division 4 in the one application and have both
premises on the same registration certificate.
However, if this is not feasible, perhaps because the
restaurant has been registered under Division 3, and the
market stall is added subsequently, the proprietor may
choose to register the stall separately under Division 4.)
Clause 50 repeals section 35B of the Act.
New section 35B inserted by clause 16 of the Bill permits
councils to recognise the registration of another registration
authority for a temporary food premises or mobile food premises.
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As new provisions concerning the state-wide registration of
temporary food premises, mobile food premises and vending
machines are contained in Part 4 of the Bill, this provision is
redundant.
Clause 51 amends section 39A of the Act.
The section adds an additional reference in section 39A so that
the provision also refers to section 43F, which arises
consequentially as a result of the inclusion of Division 4 into
Part VI of the Bill by clause 53.
Clause 52 amends section 41A(2)(ac) of the Act.
Section 41A contains the power for registration authorities to
set fees for registration, renewal of registration and transfer of
registration. It allows fees to vary. The amendment by this
clause will allow fees to also be varied according to the number
and nature of temporary food premises, mobile food premises
and food vending machines for which registration is sought in an
application, as this will be relevant to the cost of assessing the
application.
Clause 53 inserts a new Division 4--"Single Notification or Registration
Scheme" after section 43A of the Act.
Clause 3 of the Bill inserts into the Act definitions of temporary
food premises and mobile food premises. A temporary food
premises will include a market tent or stall, and a mobile food
premises will include what is commonly known as a "food van".
These food premises are portable. They can operate in multiple
localities, and in different municipalities. New Division 4 is to
apply to these premises. The effect of the amendments is that
each stall or vehicle will no longer be required to separately
register with each municipality in which it operates.
New Division 4 therefore includes provisions to create a single
registration and notification system for these kinds of food
premises, and also for food vending machines. The registration
or, in the case of a premises that is exempt from the requirement
to be registered, the notification would apply throughout the
State.
A food business may operate one, or a number, of mobile or
temporary food premises, or food vending machines. If more
than one is operated, the Division generally provides for the one
application for registration, or notification, to apply to all of these
components of the food business.
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The components a food business, in this context, may therefore
comprise one or more temporary food premises, mobile food
premises or food vending machines operated by the food
business, together with a fixed food premises where food is
prepared by the food business for sale at the temporary or mobile
food premises, or food vending machines.
New Section 43B specifies how new Division 4 applies to
areas of land which are not located within a municipal district.
The Act generally confers the function of registration on the
Secretary in relation to premises not within a municipal district.
To avoid repetitious references to the Secretary, this new section
provides that in the case of such land (for example some alpine
regions) a reference to a council in Division 4 applies as if it
were a reference to the Secretary. Also, certain references to a
municipal district are to be read as a reference to an area of land.
New Section 43C provides that--
· the purpose of Division 4 is to provide for the
notification or registration of temporary food premises,
mobile food premises and food vending machines;
· 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 Division 4 allows each of those
components to 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 council;
· Division 2 of Part VI generally applies to a component
of a food business notified under Division 4 as if it were
notified individually under Division 2. This is subject
to any differences arising from Division 4; and
· Division 3 of Part VI generally applies to a component
of a food business registered under Division 4 as if it
were registered individually under Division 3.
Division 3 is inserted by clause 13 of the Bill.
It consists of new sections, and also incorporates some
sections currently contained in the Act (sections 39A
to section 43). Division 3 sets out the general
requirements regarding applications for registration, and
the granting or refusal of registration. It also contains
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provisions of a more general nature such as the length of
time for which registration lasts, the power to revoke or
suspend registration, the fixing of registration fees,
appeals, and creates an offence of failing to comply with
a condition of registration. New section 43C ensures
that Division 3 generally applies to a registration under
Division 4 making it unnecessary to repeat all of these
provisions. However, Division 4 includes additional
provisions which are necessary to apply specifically
where components of a food business are being
registered together, by one council, on a state-wide
basis.
New section 43D:
A registration authority is the council that must receive a
notification or an application for registration. New section 35(2)
inserted by clause 48 provides that in the case of temporary or
mobile food premises, or a food vending machine, the
registration authority is the municipal district in which the
"principal premises" of the food business operating those
premises or machines is located.
New section 43D determines what place is the principal premises
for such a food business. The provision deals with the range of
situations that may apply, depending on how the food business is
run. For instance, the principal premises may be the place where,
prior to its sale, the food that is to be sold at the market stall or
food van is prepared. In other cases, it may be where the place in
which the equipment for the stall is usually stored, or where a
food van is garaged.
New section 43E permits the Secretary to publish, by notice in
the Government Gazette, a declaration setting out the
requirements applying to the notification or registration of the
components of a food business under Division 4. Given that the
registration application relates to a range of activities conducted
by the food business, and may apply to more than one temporary
or mobile food premises or food vending machine, this section
provides that the declaration may--
· exempt from, or modify the way in which, certain
relevant requirements in Division 2 apply in this
context;
· specify the inspection, assessment or audit requirements
that will apply.
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New section 43F requires proprietors of food business that
operate one or more temporary food premises, mobile food
premises or food vending machines to register or notify the
components under Division 4. It contains provisions applicable
to a registration or notification under Division 4 additional to
those that apply under Division 2 to a notification and under
Division 3 to a registration.
This section also deals with situations where a food business is
broken up into separate divisions which operate autonomously.
This is the case if food sold by a division of a food business is not
ordinarily prepared, stored or handled by any other division of
the food business. In such a case, the proprietor may register or
give notification of the temporary or mobile food premises, or
vending machines operated by the food business in--
· the one application or notification; or
· separate applications or notifications for each such
division.
New section 43G sets out requirement of certificates of
registration issued to proprietors of food business under this
Division. Certificates must be endorsed with the address of the
principal premises of the business and specify details for each
component (i.e. van, stall or machine) covered by the registration.
New section 43H provides that the Secretary may, by notice
published in the Government Gazette, declare the requirements
that apply to a statement of trade. This includes the time frame in
which a statement of trade must be lodged and the information to
be included. The declaration may vary the requirements of what
must be included in a statement of trade, to take into account
different circumstances, including the nature of the food
premises.
New section 43I creates an obligation on proprietors not to allow
a business to operate from a temporary food premises, mobile
food premises or food vending machine unless a statement of
trade has been lodged with the council of the municipal district in
which the premises or machine is being operated. The provision
also permits exemptions and contains further requirements for
statements of trade.
The scheme as a whole, as established in Division 4, ensures that
temporary food premises, mobile food premises, and food
vending machines must either--
· be registered annually with the council in which they
are based, if the Act requires them to be registered; or
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· if the premises are exempt from registration, notify the
council in which the premises are based, on a once off
basis (as notification under the Act is not annual).
This will ensure that the relevant council will determine whether
the premises are fit to operate (in the case of registration), and be
satisfied that any premises that notify are in fact exempt from the
requirement to register. This involves being informed about who
operates the business, and what kind of food handling activities
are undertaken by the premises in question.
The lodgement of a statement of trade ensures that a non-
registering council is informed that the food premises will be
operating in its district.
Clause 54 amends the Act by inserting a new provision after new
section 58A(1).
The new provision enables a council to delegate powers under
new Part III in relation to temporary food premises or mobile
food premises.
Clause 55 is a consequential amendment to new section 58B(1) and 58B(2)
of the Act. It ensures that those provisions apply expressly to
food vending machines.
Clause 56 inserts after section 76 of the Act a new Part XIV regarding
transitional and savings provisions for Part 4 of the Food
Amendment (Regulation Reform) Act 2009.
The provisions are to ensure appropriate transitional
arrangements are in place when Part 4 of the Bill comes into
operation. They all relate to the creation of the state-wide system
for single registration or notification of temporary food premises,
mobile food premises and food vending machines.
This clause takes into account the fact that Part 2 of the Bill--
which includes new provisions regarding the registration or
notification of food premises--will have commenced operation
before this Part. Temporary food premises, mobile food
premises, and food vending machines will have been registered,
or notified, under those new provisions. Those premises will
then be subject to the transitional provisions in this clause when
Part 4 of this Bill comes into effect.
New provision 77 defines commencement date as the date that
Part 4 of the Bill comes into operation.
Unamended Act means the Act as in force immediately before
the commencement date.
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New provision 78 applies to a temporary food premises, mobile
food premises or food vending machine that is registered under
Division 3 of Part VI of the unamended Act immediately before
the commencement date.
Until that registration expires, the premises are taken to be
registered under Division 4 of Part VI. This means that the
premises can operate anywhere in Victoria, subject to the
requirements of Division 4 (such as any regarding a statement
of trade).
New provision 79 applies if the operation of a temporary food
premises, mobile food premises or food vending machine has
been notified under Division 2 of Part VI the unamended Act
immediately before the commencement date. In such a case,
notification is taken to have been given under Division 4 of
Part VI. This means that the premises can operate anywhere in
Victoria, subject to the requirements of Division 4 (such as any
regarding a statement of trade).
Clause 57 amends Schedule 1 to the Act.
Schedule 1 contains a table of infringements. The original table
is inserted by clause 42 of the Bill. This clause makes
amendments to the table consequential on new Division 4.
It inserts a new infringement offence of failing to lodge a
statement of trade.
Clause 58 repeals this amending Act on 1 July 2012.
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