FOOD ACT 1984 No. 10082 of 1984 Version incorporating amendments as at 1 January 2009 Food Act 1984 - TABLE OF PROVISIONS Section Page PART I-PRELIMINARY 1. Short title 2. Commencement 3. Objects of Act 4. Definitions 4A. Meaning of food 4B. Meaning of food business 4C. Meaning of primary food production 4D. Meaning of unsafe food 4E. Meaning of unsuitable food 4F. Reference to proprietors of premises 4G. Sale of food through food vending machines 5. Orders 6. Act to bind Crown 6A. Application of Act to primary food production 6B. Application of Act to water suppliers and water storage managers 7. Extension to places outside municipal districts PART II-OFFENCES RELATING TO FOOD Division 1-Serious offences relating to food 8. Knowingly handling food in unsafe manner 8A. Handling food in unsafe manner in other circumstances 9. Knowingly selling unsafe food 9A. Sale of unsafe food in other circumstances 10. Knowingly falsely describing food 10A. Falsely describing food in other circumstances Division 2-Other offences relating to food 11. Handling and sale of unsafe food 12. Handling and sale of unsuitable food 13. Misleading conduct relating to sale of food 14. Sale of food not complying with purchaser's demand 15. Sale of unfit equipment or packaging or labelling material 16. Compliance with Food Standards Code 17. Proprietor's name to be affixed to premises 17A. False descriptions of food 17B. Application of provisions outside jurisdiction Division 3-Defences 17C. Defence relating to publication of advertisements 17D. Defence in respect of food for export 17E. Defence of due diligence 17F. Defence of mistaken and reasonable belief not available 17G. Defence in respect of handling food 17H. Defence in respect of sale of unfit equipment or packaging or labelling material PART III-CLEANLINESS OF FOOD PREMISES, ETC. 18. Repealed 19. Powers with respect to unclean food premises PART IIIA-CLEANLINESS OF FOOD HANDLERS ETC. 19A. Repealed 19B. Powers with respect to unclean food handlers etc. PART IIIB-FOOD SAFETY PROGRAMS Division 1-General matters 19BA. Outline of this Part 19C. Declaration that this Part applies to premises 19D. Food safety programs 19DA. Food safety program template 19DB. Registration of food safety program templates 19DC. Standard food safety programs 19E. Declared premises must have food safety program 19F. Directions concerning food safety programs Division 2-Food safety supervisors 19G. Food safety supervisors 19GA. Declared premises must have food safety supervisor 19GB. Name of supervisor to be provided on request Division 3-Inspection of standard food safety programs 19H. Application of this Division 19HA. Registration authority may inspect premises 19HB. Procedure if program not implemented or complied with Division 3A-Audit of non-standard food safety programs 19I. Application of this Division 19IA. Requirement to audit 19J. Food safety program audit 19K. Declarations concerning food safety program audit intervals 19L. Auditor must give certificate if program adequate 19M. Procedure if program not adequate 19N. Audit certificates must be given to the registration authority 19O. Only approved auditors may conduct audits 19P. Appointment of food safety auditors 19Q. Auditor must comply with conditions of certification 19R. Offence to impersonate approved auditor 19S. Conflict of interest to be avoided 19T. Revocation of approval to act as an auditor Division 4-Miscellaneous matters 19U. Restrictions applying to council staff etc. 19V. Exemptions concerning food safety programs 19W. Penalties applying to this Part PART IV-AUTHORIZED OFFICERS 20. Authorized officers 21. Powers of authorized officers 22. Procuring of samples of food 23. Procedures on taking samples 24. Duties of officer upon seizure and detention of article 25. Keeping and storage of certain articles 26. Remedy in respect of articles seized 27. Destruction or other disposal of seized food 28. Liability for costs and expenses of storage or destruction or other disposal of seized article 29. Offences with respect to authorized officers and articles PART V-ANALYSTS 30. Analysts 31. Duties of analysts 32. Councils to submit samples for analysis 33. Copy of certificate of analysis 34. Prohibition on use of analyst's certificate for certain purposes PART VI-REGISTRATION OF FOOD PREMISES 35. Food business premises to be registered with council 35A. Repealed 36. Registration of Crown premises 37. Notification of certain information not required 38. Exemption from registration 38A. Applications must include food safety program 38B. Application must include name of food safety supervisor 39. Requirements for registration 39A. Registration etc. may be made despite minor defects 39B. Offence to fail to comply with registration condition 39C. Contravention of section 34(1) of the Meat Industry Act 1993. 40. Certificates of registration 40A. Certificates must be shown on demand 40B. Minister may specify period of registration 40C. Period for which registration lasts 40D. Revocation or suspension of registration 40E. Secretary may direct council to revoke or suspend a registration 41. Repealed 41A. Registration fees 42. Appeal 43. Register book 43A. Transitional provision PART VII-EMERGENCY POWERS 44. Making of order 44A. Nature of order 44B. Special provisions relating to recall orders 44C. Manner of making orders 44D. Compensation 44E. Failure to comply with emergency order 44F. Person has no right to be heard before order made 44G. Secretary may obtain enforcement order PART VIII-LEGAL PROCEEDINGS 45. Proceedings for offences 45A. Burden of proof as to statements on packages etc. 45B. Prosecutions 46. Right of defendant to have third person before court 46A. Analysis is not necessary to conviction 47. Power of court to order further analysis 48. Power of court to order forfeiture 49. Liability of defendant for certain costs and expenses 50. Evidentiary provisions 50A. Alternative verdicts for serious food offences 51. Offences by bodies corporate 52. Offences by unincorporated bodies, partnerships etc. 52A. Offences by employers 52B. Liability of employees and agents 53. General penalty 53A. Court may order costs and expenses 53B. Court may order corrective advertising PART IX-MISCELLANEOUS PROVISIONS 54. Secrecy 54A. Confidential food information may be given to the Secretary 54B. Confidential food information may be given to the Food Safety Council 54C. Confidential food information may be given to a council 54D. Confidential food information may be given to a public statutory body 55. Mode of service of documents and certain samples 56. Protection against liability 57. Payment of penalties 58. Director of Liquor Licensing to be notified of certain matters 58A. Delegation to council officers 59. Part XX of Health Act 1958 incorporated with this Act PART X-FOOD SAFETY COUNCIL 60. Establishment of the Council 60A. Functions 60B. Powers 60C. Members of the Council 60D. Conditions of office of members 60E. Procedure at meetings 60F. Report on operations 60G. Use of assistants 60H. Members must not disclose confidential information 60I. Council the successor of the Food Standards Committee 61, 62. Repealed PART XI-REGULATIONS 63. Regulations 63A. Prescribed food standards 63B. Limitation on power to make local laws PART XII-TRANSITIONAL PROVISIONS 63C. Existing orders to continue 63D. Extended application of Division 3 of Part IIIA 64, 65. Repealed _________________ 1, 2-Repealed --------------- ENDNOTES 1. General Information 2. Table of Amendments 3. Explanatory Details Food Act 1984 - PART I PART I PRELIMINARY Food Act 1984 - SECT 1 Short title 1. Short title This Act may be cited as the Food Act 1984. Food Act 1984 - SECT 2 Commencement 2. Commencement The several provisions of this Act shall come into operation on a day or on the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette. Food Act 1984 - SECT 3 Objects of Act 3. Objects of Act The objects of this Act include the following- (a) to ensure food for sale is both safe and suitable for human consumption; (b) to prevent misleading conduct in connection with the sale of food; (c) to provide for the application in Victoria of the Food Standards Code. Food Act 1984 - SECT 4 Definitions 4. Definitions (1) In this Act- advertisement means- (a) any words, whether written or spoken; or (b) any pictorial representation or design; or (c) any other representation by any means at all- used or apparently used to promote, directly or indirectly, the sale of food; analysis includes any examination or testing of food or any other thing; analyst means a person authorized under section 30 to carry out analyses for the purposes of this Act; animal includes an amphibian, bird, crustacean, fish, mollusc or reptile; approved food safety auditor means a person holding a current certificate issued under section 19P; article means- (a) any food; or (b) any equipment; or (c) a package; or (d) any labelling or advertising material used or capable of being used in or in connection with the sale of any food; authorized officer means- (a) a person who is authorized by the Secretary under section 20(1) for the purposes of this Act; or (b) a medical officer of health or an environmental health officer appointed under Division 3 of Part II of the Health Act 1958; or (c) for the purposes of enforcing the provisions of this Act in relation to any dairy premises, milk or dairy food within the meaning of the Dairy Act 2000, a person who is an authorised officer appointed under section 43 of the Dairy Act 2000; or (d) a person who, under the Meat Industry Act 1993, is appointed as, or has the powers of, an inspector or is a person authorised to be an inspector by an inspection service approved under section 7 of that Act; or (e) in relation to a food premises- (i) operated by or on behalf of the Crown; or (ii) on land that is not part of a municipal district- the Secretary; or (f) a person to whom, under section 8A of the Health Act 1958, the Secretary delegates any of the functions or powers of an authorized officer under this Act; books includes any register or other record of information and accounts or financial records (within the meaning of the Corporations Act), however compiled, recorded or stored, and also includes any document; corresponding law means a law of another State or a Territory which the Governor in Council by Order declares to be a law that makes provision substantially similar to a provision of this Act; council has the same meaning as in the Local Government Act 1989, and the council means the council of the municipal district to which the provision in which the term is used applies; declared premises means a food premises that is of a class that has been declared under section 19C; Department means the Department of Human Services; equipment means the whole or part of- (a) any utensil, machinery, instrument, device, apparatus or appliance that is used, or that is designed or intended for use, in or in connection with the handling of food; or (b) any substance, utensil, machinery, instrument, device, apparatus or appliance that is used, or that is designed or intended for use, in cleaning anything referred to in paragraph (a); examine includes weigh, count, test and measure; food has the meaning given by section 4A; food business has the meaning given by section 4B; food premises means any premises at, on or from which food is sold, or handled with the intention that it be sold, but does not include- (a) any premises used solely for the purposes of a primary food production business, enterprise or activity; or (b) any premises or other place declared by an Order made under section 5(3) not to be a food premises; Food Safety Council means the Food Safety Council established under section 60; food safety program has the meaning given by section 19D; food safety program audit has the meaning given by section 19J; food safety program template has the meaning given by section 19DA; Food Safety Standards means the standards contained in Chapter 3 of the Food Standards Code; food safety supervisor has the meaning given by section 19G; Food Standards Code means the Australia New Zealand Food Standards Code as defined in the Australia New Zealand Food Authority Act 1991 of the Commonwealth; food transport vehicle means a vehicle used for the transport of food for sale; food vending machine means a machine or mechanical device used or capable of being used for selling food without any intervention or attention by or on behalf of the seller at the time of the sale; handling, in relation to food, includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or displaying of food; hazard means a biological, chemical, radiological or physical agent or factor that may adversely affect the health of any person; label includes any tag, brand, mark or statement in writing or any representation or design or other descriptive matter on or attached to or used or displayed in connection with or accompanying any food or package; package includes any container or wrapper in or by which food intended for sale is wholly or partly encased, covered, enclosed, contained or packed and, in the case of food carried or sold or intended to be carried or sold in more than one package, includes every such package; person includes a body or association (corporate or unincorporate) and a partnership; premises includes- (a) land (whether or not vacant); and (b) the whole or any part of a building, tent, stall or other structure (whether of a permanent or temporary nature); and (c) a pontoon; and (d) a vehicle (other than a food transport vehicle while it is engaged in the transport of food); prepare includes manufacture, process and treat; prescribed means prescribed by this Act, the regulations or a prescribed food standard; prescribed food standard has the meaning given by section 63A; primary food production has the meaning given by section 4C; proprietor of a food business means- (a) the person carrying on the food business; or (b) if that person cannot be identified, the person in charge of the food business; public statutory body means any body created by, or under the authority of, an Act of the Commonwealth or of a State or Territory for a public purpose; recall order means an order under Part VII requiring the recall or disposal, or both, of any food; registered medical practitioner means a medical practitioner registered under the Health Professions Registration Act 2005; registration authority means the relevant registration authority, as determined under sections 35 and 36; sample includes part of a sample; Secretary means the Secretary to the Department of Human Services; sell includes- (a) barter, offer or attempt to sell; and (b) receive for sale; and (c) have in possession for sale; and (d) display for sale; and (e) cause or permit to be sold or offered for sale; and (f) send, forward or deliver for sale; and (g) dispose of by any method for valuable consideration; and (h) dispose of to an agent for sale on consignment; and (i) provide under a contract of service; and (j) supply food as a meal or part of a meal to an employee in accordance with a term of an award governing the employment of the employee or a term of the employee's contract of service, for consumption by the employee at the employee's place of work; and (k) dispose of by way of raffle, lottery or other game of chance; and (l) offer as a prize or reward; and (m) give away for the purpose of advertisement or in furtherance of trade or business; and (n) supply food under a contract (whether or not the contract is made with the consumer of the food), together with accommodation, service or entertainment, in consideration of an inclusive charge for the food supplied and the accommodation, service or entertainment; and (o) supply food (whether or not for consideration) in the course of providing services to patients in hospitals or prisoners in prisons; and (p) sell for the purpose of resale; service, in relation to a food vending machine, means stock or replenish that machine with food; standard food safety program has the meaning given by section 19DC; substance includes a mixture or compound; therapeutic good has the same meaning as it has in the Therapeutic Goods Act 1989 of the Commonwealth; this Act includes the regulations; unsafe has the meaning given by section 4D; unsuitable has the meaning given by section 4E; vehicle means any means of transport, whether self-propelled or not, and whether used on land or sea or in the air. (1A) If under the Public Administration Act 2004 the name of the Department of Human Services is changed, a reference in the definition of Department in subsection (1) to that Department must, from the date when the name is changed, be treated as a reference to the Department by its new name. * * * * * (3) For the purposes of this Act- (a) food or equipment that is displayed for the purpose of being offered as a prize or reward or given away for the purpose of advertisement or in the furtherance of trade or business is taken to have been displayed for sale by the owner of the food or equipment; (b) food that is donated to a person who distributes food for a charitable or benevolent purpose is not to be taken to be food that was given away for the purpose of advertisement or in furtherance of trade or business; (c) food which is exposed or deposited in any premises for the purpose of being so offered as a prize or reward or given away is taken to have been exposed for sale by the occupier of the premises. (4) Where a word or phrase is given a particular meaning in this Act, other parts of speech and grammatical forms of that word or phrase have, unless the contrary intention appears, corresponding meanings. (5) Where a provision of this Act is with respect to a particular subject-matter inconsistent with a provision of any other Act, the provision of this Act shall prevail and the provision of that other Act is, to the extent of the inconsistency, of no force or effect. (6) Where a provision of a regulation made under this Act is with respect to a particular subject-matter inconsistent with a provision of a regulation, rule or by-law made under any other Act, the provision of the regulation made under this Act shall prevail and that other provision is, to the extent of the inconsistency, of no force or effect. Food Act 1984 - SECT 4A Meaning of food 4A. Meaning of food (1) In this Act, food includes- (a) any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); (b) any substance or thing of a kind used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a); (c) any substance used in preparing a substance or thing referred to in paragraph (a) (other than a substance used in preparing a living thing) if it comes into direct contact with the substance or thing referred to in that paragraph, such as a processing aid; (d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; (e) any substance or thing declared to be a food under a declaration in force under section 3B of the Australia New Zealand Food Authority Act 1991 of the Commonwealth. (2) A substance, thing, chewing gum or ingredient or additive in chewing gum described in subsection (1) is food regardless of whether or not it is in a condition fit for human consumption. (3) However, food does not include a therapeutic good. (4) To avoid doubt, food may include live animals and plants. Food Act 1984 - SECT 4B Meaning of food business 4B. Meaning of food business In this Act, food business means a business, enterprise or activity (other than a business, enterprise or activity that is primary food production) that involves- (a) the handling of food intended for sale; or (b) the sale of food, regardless of whether the business, enterprise or activity concerned is of a commercial, charitable or community nature or whether it involves the handling or sale of food on one occasion only. Food Act 1984 - SECT 4C Meaning of primary food production 4C. Meaning of primary food production (1) In this Act, primary food production means the growing, raising, cultivation, picking, harvesting, collection or catching of food, and includes the following- (a) the transportation or delivery of food on, from or between the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught; (b) the packing, treating (for example, washing) or storing of food on the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught; (c) the storage of food in a silo that is not connected with a food processing operation and the transportation or delivery of food from, between or to such silos; (d) the sale of livestock at saleyards and the transportation of livestock to and from saleyards; (e) any other food production activity that is regulated by or under an Act prescribed by the regulations for the purposes of this subsection. (2) However, primary food production does not include- (a) any process involving the substantial transformation of food (for example, manufacturing or canning), regardless of whether the process is carried out on the premises on which the food was grown, cultivated, picked, harvested, collected or caught; or (b) the sale or service of food directly to the public; or (c) any other food production activity that is prescribed by the regulations for the purposes of this subsection. Note Section 4C(2)(c) enables regulations to be made prescribing food production activities that are not included in the definition of primary food production. Such a regulation might be made, for example, to prescribe a food production activity in relation to which significant and unmanaged food safety hazards have been identified. Food Act 1984 - SECT 4D Meaning of unsafe food 4D. Meaning of unsafe food (1) For the purposes of this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming- (a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and (b) nothing happened to it after that particular time and before being consumed by the person that would prevent it being used for its reasonable intended use; and (c) it was consumed by the person according to its reasonable intended use. (2) However, food is not unsafe for the purposes of this Act merely because its inherent nutritional or chemical properties cause, or its inherent nature causes, adverse reactions only in persons with allergies or sensitivities that are not common to the majority of persons. (3) In subsection (1), processes include processes involving storage and preparation. Food Act 1984 - SECT 4E Meaning of unsuitable food 4E. Meaning of unsuitable food (1) For the purposes of this Act, food is unsuitable if it is food that- (a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use; or (b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use; or (c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption; or (d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food. (2) However, food is not unsuitable for the purposes of this Act merely because- (a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical; or (b) when it is sold for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code; or (c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code; or (d) it contains any matter or substance that is permitted by the Food Standards Code. (3) In this section, slaughter of an animal includes the killing of an animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food. Food Act 1984 - SECT 4F Reference to proprietors of premises 4F. Reference to proprietors of premises A reference to the proprietor of a declared premises, food premises or premises is a reference to the proprietor of the food business that operates at, on or from the premises. Food Act 1984 - SECT 4G Sale of food through food vending machines 4G. Sale of food through food vending machines For the purposes of this Act, any food that is sold through a food vending machine is to be taken to be sold- (a) by the proprietor of the premises on which the machine is located; and (b) on the day when, and at the place where, the food is received by the purchaser. Food Act 1984 - SECT 5 Orders 5. Orders (1) The Governor in Council may by Order published in the Government Gazette- (a) declare a law of a State or Territory of the Commonwealth of Australia to be a corresponding law for the purposes of this Act; and * * * * * (2) An Order made by the Governor in Council under subsection (1) may by like Order be amended, varied or revoked. (3) The Minister may make an order declaring- (a) any premises or part of a premises or any other place not to be a food premises for the purposes of this Act. * * * * * (3A) The Minister may, by order published in the Government Gazette, exempt from this Act or any provision of this Act- (a) any food premises or class of food premises. * * * * * (4) An order made by the Minister under subsection (3) or (3A)- (a) may be made so as to be limited in respect of time or circumstances; and (b) may by like order be amended, varied or revoked. Food Act 1984 - SECT 6 Act to bind Crown 6. Act to bind Crown This Act binds the Crown, not only in right of the State of Victoria, but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. Food Act 1984 - SECT 6A Application of Act to primary food production 6A. Application of Act to primary food production (1) Parts IV and VI do not apply to or in respect of primary food production. (2) The functions conferred on authorized officers by sections 19 and 19B and Part IIIB may only be exercised in respect of primary food production- (a) to enable the investigation and prosecution of offences against this Act or the regulations; or (b) in connection with the making or enforcement of emergency orders under Part VII. Note The definition of food business excludes primary food production. Food Act 1984 - SECT 6B Application of Act to water suppliers and water storage managers 6B. Application of Act to water suppliers and water storage managers (1) The following provisions of this Act do not apply to, or in relation to, a water supplier or water storage manager in respect of the supply of water for human consumption through a reticulated water system- (a) sections 8, 8A, 10, 10A, 11(1), 12(1), 13, 14 and 15; (b) section 16 to the extent to which it requires compliance with the requirements of the Food Safety Standards; (c) Parts III, IIIA, IIIB, IV and VI. (2) In this section- water storage manager means- (a) a water storage manager within the meaning of section 3 of the Safe Drinking Water Act 2003; or (b) a person that is employed or engaged by such a body to supply water for human consumption; water supplier means- (a) a water supplier within the meaning of section 3 of the Safe Drinking Water Act 2003; or (b) a body that is constituted by or under an Act and that has as one of its functions the supply of water for human consumption; or (c) a person that is employed or engaged by such a water supplier or body to supply water for human consumption; or (d) any body or person prescribed by the regulations for the purposes of this section. Food Act 1984 - SECT 7 Extension to places outside municipal districts 7. Extension to places outside municipal districts (1) All or any of the provisions of this Act may be extended by proclamation of the Governor in Council to any place not situated in a municipal district and in every such case the Secretary shall have and may exercise in respect of such place all the powers duties and authorities of councils under this Act. (2) A proclamation made by the Governor in Council under subsection (1) may by like proclamation be amended, varied or revoked. __________________ Food Act 1984 - PART II PART II OFFENCES RELATING TO FOOD Division 1-Serious offences relating to food Food Act 1984 - SECT 8 Knowingly handling food in unsafe manner 8. Knowingly handling food in unsafe manner (1) A person must not handle food intended for sale in a manner that the person knows will render, or is likely to render, the food unsafe. (2) A person who contravenes subsection (1) is guilty of an indictable offence and is liable to a penalty not exceeding- (a) in the case of an individual, $100 000 or imprisonment for 2 years, or both; (b) in the case of a corporation, $500 000. Food Act 1984 - SECT 8A Handling food in unsafe manner in other circumstances 8A. Handling food in unsafe manner in other circumstances (1) A person must not handle food intended for sale in a manner that the person ought reasonably to know is likely to render the food unsafe. (2) A person who contravenes subsection (1) is guilty of an indictable offence and is liable to a penalty not exceeding- (a) in the case of an individual, $75 000; (b) in the case of a corporation, $375 000. Food Act 1984 - SECT 9 Knowingly selling unsafe food 9. Knowingly selling unsafe food (1) A person must not sell food that the person knows is unsafe. (2) A person who contravenes subsection (1) is guilty of an indictable offence and is liable to a penalty not exceeding- (a) in the case of an individual, $100 000 or imprisonment for 2 years, or both; (b) in the case of a corporation, $500 000. Food Act 1984 - SECT 9A Sale of unsafe food in other circumstances 9A. Sale of unsafe food in other circumstances (1) A person must not sell food that the person ought reasonably to know is unsafe. (2) A person who contravenes subsection (1) is guilty of an indictable offence and is liable to a penalty not exceeding- (a) in the case of an individual, $75 000; (b) in the case of a corporation, $375 000. Food Act 1984 - SECT 10 Knowingly falsely describing food 10. Knowingly falsely describing food (1) A person must not cause food intended for sale to be falsely described if the person knows that a consumer of the food who relies on the description will, or is likely to, suffer physical harm. Note Examples of food that is falsely described are contained in section 17A. (2) A person must not sell food that the person knows is falsely described and will, or is likely to, cause physical harm to a consumer of the food who relies on the description. Note Examples of food that is falsely described are contained in section 17A. (3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and is liable to a penalty not exceeding- (a) in the case of an individual, $100 000 or imprisonment for 2 years, or both; (b) in the case of a corporation, $500 000. Food Act 1984 - SECT 10A Falsely describing food in other circumstances 10A. Falsely describing food in other circumstances (1) A person must not cause food intended for sale to be falsely described if the person ought reasonably to know that a consumer of the food who relies on the description is likely to suffer physical harm. Note Examples of food that is falsely described are contained in section 17A. (2) A person must not sell food that the person ought reasonably to know is falsely described and is likely to cause physical harm to a consumer of the food who relies on the description. Note Examples of food that is falsely described are contained in section 17A. (3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and is liable to a penalty not exceeding- (a) in the case of an individual, $75 000; (b) in the case of a corporation, $375 000. Division 2-Other offences relating to food Food Act 1984 - SECT 11 Handling and sale of unsafe food 11. Handling and sale of unsafe food (1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsafe. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (2) A person must not sell food that is unsafe. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. Food Act 1984 - SECT 12 Handling and sale of unsuitable food 12. Handling and sale of unsuitable food (1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsuitable. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (2) A person must not sell food that is unsuitable. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (3) For the purposes of this section, it is immaterial whether the food concerned is safe. Food Act 1984 - SECT 13 Misleading conduct relating to sale of food 13. Misleading conduct relating to sale of food (1) A person must not, in the course of carrying on a food business, engage in conduct that is misleading or deceptive or is likely to mislead or deceive in relation to the advertising, packaging or labelling of food intended for sale or the sale of food. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (2) A person must not, for the purpose of effecting or promoting the sale of any food in the course of carrying on a food business, cause the food to be advertised, packaged or labelled in a way that falsely describes the food. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. Note Examples of food that is falsely described are contained in section 17A. (3) A person must not, in the course of carrying on a food business, sell food that is packaged or labelled in a way that falsely describes the food. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. Note Examples of food that is falsely described are contained in section 17A. (4) Nothing in subsection (2) or (3) limits the generality of subsection (1). Food Act 1984 - SECT 14 Sale of food not complying with purchaser's demand 14. Sale of food not complying with purchaser's demand (1) A person must not, in the course of carrying on a food business, supply food by way of sale if the food is not of the nature or substance demanded by the purchaser. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (2) For the purposes of this section, it is immaterial whether the food concerned is safe. Food Act 1984 - SECT 15 Sale of unfit equipment or packaging or labelling material 15. Sale of unfit equipment or packaging or labelling material (1) A person must not sell equipment that if used for the purposes for which it was designed or intended to be used- (a) would render or be likely to render food unsafe; or (b) would put other equipment, or would be likely to put other equipment, in such a condition that, if the other equipment were used for the purposes for which it was designed or intended to be used, it would render, or be likely to render, food unsafe. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (2) A person must not sell packaging or labelling material that if used for the purposes for which it was designed or intended to be used would render or be likely to render food unsafe. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. Food Act 1984 - SECT 16 Compliance with Food Standards Code 16. Compliance with Food Standards Code (1) A person must comply with any requirement imposed on the person by a provision of the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (2) A person must not sell any food that does not comply with any requirement of the Food Standards Code that relates to the food. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (3) A person must not sell or advertise any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. (4) A person must not sell or advertise for sale any food in a manner that contravenes a provision of the Food Standards Code. Penalty: $40 000 in the case of an individual and $200 000 in the case of a corporation. Food Act 1984 - SECT 17 Proprietor's name to be affixed to premises 17. Proprietor's name to be affixed to premises (1) The proprietor of a food business must ensure that his, her or its name is prominently displayed on any food premises used in connection with the food business. Penalty: 10 penalty units. (2) A person who sells any food from any premises on which the name of any other person appears under subsection (1) must be taken to have sold the food as the agent of that other person, unless the contrary is proved. Food Act 1984 - SECT 17A False descriptions of food 17A. False descriptions of food (1) For the purposes of this Part, food that is falsely described includes food to which any one or more of the following paragraphs applies- (a) the food is represented as being of a particular nature or substance for which there is a prescribed standard under the Food Standards Code and the food does not comply with that prescribed standard; (b) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance in a quantity or proportion that significantly diminishes its food value or nutritive properties as compared with food of the represented nature or substance; (c) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance of lower commercial value than food of the represented nature or substance; (d) the food is represented as being of a particular nature or substance and a constituent of the food has been wholly or partly removed so that its properties are diminished as compared with food of the represented nature or substance; (e) any word, statement, device or design used in the packaging or labelling of the food, or in an advertisement for the food, would create a false impression as to the nature or substance of the food, or the commercial value of the food, in the mind of a reasonable person; (f) the food is not of the nature or substance represented by the manner in which it is packaged, labelled or offered for sale. (2) Without limiting the application of subsection (1) of this section to sections 10(2) and 10A(2), food is falsely described for the purposes of sections 10(2) and 10A(2) if it is supplied in response to a purchaser's request for a particular type of food, or a food that does not contain a particular ingredient, and the food is not of that type or contains that ingredient. Food Act 1984 - SECT 17B Application of provisions outside jurisdiction 17B. Application of provisions outside jurisdiction Except as provided in section 17D, for the purposes of a provision of this Part, it does not matter that the food concerned was sold or intended for sale outside Victoria. Note See section 17D for a defence in relation to food intended for export. Division 3-Defences Food Act 1984 - SECT 17C Defence relating to publication of advertisements 17C. Defence relating to publication of advertisements (1) In any proceedings for an offence under this Part in relation to the publication of an advertisement, it is a defence for a person to prove that the person carried on the business of publishing or arranging for the publication of advertisements and that the person published or arranged for the publication of the advertisement in question in the ordinary course of that business. (2) Subsection (1) does not apply if the person- (a) should reasonably have known that the publication of the advertisement was an offence; or (b) had previously been informed in writing by the Secretary that publication of such an advertisement would constitute an offence; or (c) is the proprietor of a food business or is otherwise engaged in the conduct of a food business for which the advertisements concerned were published. Food Act 1984 - SECT 17D Defence in respect of food for export 17D. Defence in respect of food for export (1) In any proceedings for an offence under this Part involving a contravention of or failure to comply with a provision of the Food Standards Code in relation to food, it is a defence for a person to prove that- (a) the food in question is to be exported to another country; and (b) the food complies with the laws (if any) in force at the time of the alleged offence in the place to which the food is to be exported, being laws that deal with the same subject-matter as the provision of the Food Standards Code concerned. (2) This section does not apply to food that was originally intended for export but was sold in Victoria. Food Act 1984 - SECT 17E Defence of due diligence 17E. Defence of due diligence (1) In any proceedings for an offence under this Part, it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence by the person or by another person under the person's control. (2) Without limiting the ways in which a person may satisfy the requirements of subsection (1), a person satisfies those requirements if it is proved- (a) that the commission of the offence was due to- (i) an act or default of another person; or (ii) reliance on information supplied by another person; and (b) that- (i) the person carried out all such checks of the food concerned as were reasonable in all the circumstances; or (ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the person; and (c) that the person did not import the food into the jurisdiction from another country; and (d) in the case of an offence involving the sale of food, that- (i) the person sold the food in the same condition as when the person purchased it; or (ii) the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act; and (e) that the person did not know and had no reason to suspect at the time of commission of the alleged offence that the person's act or omission would constitute an offence under the relevant section. (3) In subsection (2)(a), another person does not include a person who was- (a) an employee or agent of the defendant; or (b) in the case of a defendant that is a body corporate, a director, employee or agent of the defendant. (4) Without limiting the ways in which a person may satisfy the requirements of subsection (1) or (2)(b)(i), a person may satisfy those requirements by proving that- (a) in the case of an offence relating to a food business for which a food safety program is required, the person complied with a food safety program for the food business; or (b) in any other case, the person complied with a scheme (for example, a quality assurance program or an industry code of practice) that was- (i) designed to manage food safety hazards and was based on Australian national or international standards, codes or guidelines designed for that purpose; and (ii) documented in some manner. Food Act 1984 - SECT 17F Defence of mistaken and reasonable belief not available 17F. Defence of mistaken and reasonable belief not available In any proceedings for an offence under Division 2, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence. Food Act 1984 - SECT 17G Defence in respect of handling food 17G. Defence in respect of handling food In any proceedings for an offence under section 8, 8A, 11(1) or 12(1), it is a defence if it is proved that the person caused the food to which the offence relates to be destroyed or otherwise disposed of immediately after the food was handled in the manner that was likely to render it unsafe or unsuitable. Food Act 1984 - SECT 17H Defence in respect of sale of unfit equipment or packaging or labelling material 17H. Defence in respect of sale of unfit equipment or packaging or labelling material In any proceedings for an offence under section 15(1) or (2), it is a defence if the person proves that the person reasonably believed that the equipment or material concerned was not intended for use in connection with the handling of food. _______________ Food Act 1984 - PART III PART III CLEANLINESS OF FOOD PREMISES, ETC. * * * * * Food Act 1984 - SECT 19 Powers with respect to unclean food premises 19. Powers with respect to unclean food premises (1) If the Secretary or the registration authority is satisfied from the report of an authorised officer that- (a) food premises are in an unclean or unsanitary condition or in a state of disrepair; or (b) food being prepared at food premises is unsafe or unsuitable- the Secretary or the registration authority may direct that, within a time specified in the direction, all or any of the following things must be done- (c) the food premises must be put into a clean and sanitary condition or be altered or improved to the satisfaction of an authorised officer; (d) specified steps must be taken to ensure that food prepared at the food premises is safe and suitable. (2) The Secretary may in an order made under subsection (1) or in a subsequent order in writing direct that- (a) the food premises shall not be kept or used for the sale or the handling for sale of any food; or (aa) the food premises must not be kept or used for the preparation of food- * * * * * * * * * * until the food premises have been put into a clean and sanitary condition or been altered or improved or that specified steps have been taken to ensure that food prepared at those premises is safe and suitable. (3) Where an authorized officer is satisfied that any food vending machine or other equipment is in an unclean or unsanitary condition, or in a state of disrepair he may by order in writing direct that the food vending machine or other equipment be put into a clean and sanitary condition or be altered or improved to his satisfaction within such time as is specified in the order. (4) An authorized officer may in an order made under subsection (3) or in a subsequent order in writing direct that- (a) the food vending machine shall not be kept or used for the sale or the storing, serving or supplying for sale of any food; or (b) the equipment shall not be used in or in connexion with the sale or the handling for sale of any food or in connexion with the cleaning of any other equipment- until the food vending machine or other equipment has been put into a clean and sanitary condition or has been altered or improved. (5) An order under this section shall take effect- (a) in the case of any food premises, food vending machine or equipment, when it is given to or served on the proprietor thereof; or (b) in any case where the name and address of the proprietor of the food premises, food vending machine or equipment is not known, when it is affixed on some conspicuous part of the premises, equipment or machine. (6) Where any food premises the subject of an order under this section have or any food vending machine or other equipment the subject of such an order has been put into a clean and sanitary condition or been altered or improved or specified steps have been taken to ensure that food prepared at the premises is safe and suitable, the Secretary, registration authority or authorized officer (as the case requires) shall- (a) forthwith revoke any order made under this section with respect to those premises or that machine or equipment; and (b) give written notice of the revocation of the order in the same manner in which the order was given or served under this section. (7) Any person who is aggrieved by an order made by the Secretary, registration authority or authorized officer under this section may within 21 days after the order is made, appeal to the Magistrates' Court. (8) Upon any appeal under subsection (7) the court shall- (a) reconsider the decision of the Secretary, registration authority or authorized officer; and (b) hear any relevant evidence tendered whether by the person aggrieved or by the Secretary, registration authority or relevant authorized officer. (9) The costs of and incidental to an appeal under subsection (7) shall be in the discretion of the court. (10) Any person who contravenes or fails to comply with an order made by the Secretary or the registration authority under this section is guilty of an offence. Penalty: For a first offence 50 penalty units, and for a second or subsequent offence 100 penalty units. (11) Any person who contravenes or fails to comply with an order made by an authorized officer under this section is guilty of an offence. Penalty: For a first offence 25 penalty units, and for a second or subsequent offence 50 penalty units. --------- Food Act 1984 - PART IIIA PART IIIA CLEANLINESS OF FOOD HANDLERS ETC. * * * * * Food Act 1984 - SECT 19B Powers with respect to unclean food handlers etc. 19B. Powers with respect to unclean food handlers etc. (1) If an authorised officer is satisfied that there has been a contravention of this Act in relation to a person employed or engaged to handle unpackaged food, he or she may by order in writing direct that specified steps be taken- (a) to ensure that that person or his or her clothing is put in a clean and sanitary condition; or (b) to alter or improve the method of handling of unpackaged food by that person; or (c) to ensure that that person ceases to handle unpackaged food until diagnosed by a registered medical practitioner as not suffering from a condition that is liable to render unpackaged food unsafe or unsuitable. (2) An order under this section takes effect when it is given to or served on the proprietor of the food premises or food vending machine. (3) If the authorised officer is satisfied that an order made under this section with respect to a person has been complied with, he or she must- (a) forthwith 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 under this section. (4) Any person who is aggrieved by an order made by an authorised officer under this section may, within 21 days after the order is made, appeal to the Magistrates' Court. (5) On an appeal under subsection (4) the court must- (a) reconsider the decision of the authorised officer; and (b) hear any relevant evidence tendered whether by the person aggrieved or by the relevant authorised officer. (6) The costs of, and incidental to, an appeal under subsection (4) are in the discretion of the court. (7) A person must not contravene an order made by an authorised officer under this section. Penalty: For a first offence 25 penalty units, and for a second or subsequent offence 50 penalty units. --------- Food Act 1984 - PART IIIB PART IIIB FOOD SAFETY PROGRAMS Division 1-General matters Food Act 1984 - SECT 19BA Outline of this Part 19BA. Outline of this Part (1) In outline this Part- * requires the proprietors of declared food businesses to have a food safety program to assist in preventing and controlling dangerous incidents arising from the sale and handling of food; * provides for proprietors to choose to create their own food safety program, or, in most cases, to choose to use a standard food safety program (which is a food safety program developed by individual proprietors from a set of instructions known as a food safety program template); * provides for proprietors who choose, or who are required, to create their own food safety program to have the program independently audited at certain intervals in accordance with this Part; * provides for proprietors who choose to use a standard food safety program to not have to have the program audited, but to be liable to have their compliance with the food safety program checked by the registration authority at certain intervals; * requires proprietors to ensure that there is a food safety supervisor for their food premises. (2) This section is intended only as a guide to readers as to the general scheme and effect of this Part. Food Act 1984 - SECT 19C Declaration that this Part applies to premises 19C. Declaration that this Part applies to premises (1) The Secretary may, by notice published in the Government Gazette, declare that food premises of a particular class are to have food safety programs. (2) In making a declaration, the Secretary must specify that the declaration is to take effect on a specified date on or after the making of the declaration. (3) The registration authority must not register, renew the registration or grant the transfer of registration of any premises on or after the date it becomes a declared premises unless it is satisfied that a food safety program exists for the premises. Food Act 1984 - SECT 19D Food safety programs 19D. Food safety programs A food safety program for a food premises is a written document that- (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; and (b) identifies where, in a food handling operation, each hazard identified under paragraph (a) can be controlled and the means of control; and (c) provides for the systematic monitoring of those controls; and (d) provides for appropriate corrective action when that hazard, or each of those hazards, is found not to be under control; and (e) provides for the regular review of the program by the proprietor of the food premises; and (f) provides for appropriate records to be made and kept by the proprietor of the food premises demonstrating action taken in relation to, or in compliance with, the program. Food Act 1984 - SECT 19DA Food safety program template 19DA. Food safety program template A food safety program template is a written document that- (a) contains a set of instructions to enable the proprietor of a food business to create a food safety program that complies with section 19D; and (b) that has been registered by the Secretary for the purposes of this Part under section 19DB. Food Act 1984 - SECT 19DB Registration of food safety program templates 19DB. Registration of food safety program templates (1) The Secretary may register a food safety program template if the Secretary is satisfied that the template appears to be suitable for use by the proprietors of food businesses. (2) The Secretary registers a food safety program template by publishing a notice in the Government Gazette stating that the template is registered for use and specifying the classes of food businesses in respect of which the template is suitable for use. (3) The Secretary may revoke the registration of a food safety program template by publishing a notice in the Government Gazette stating that the registration of the template is revoked. (4) The notice required by subsection (2) or (3) must contain sufficient detail to enable the food safety program template to which it refers to be readily identified. (5) If the Secretary revokes the registration of a food safety program template, any standard food safety program that was created using 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 program relates. Food Act 1984 - SECT 19DC Standard food safety programs 19DC. Standard food safety programs A standard food safety program is a food safety program for a food premises that complies with the following conditions- (a) it has been created using a food safety program template in accordance with the instructions set out in the food safety program template; and (b) the food safety program template is specified as suitable for use under section 19DB for a food business of the class that is being carried out at, on or from the food premises. Food Act 1984 - SECT 19E Declared premises must have food safety program 19E. Declared premises must have food safety program (1) The proprietor of a declared premises must- (a) ensure that there is a food safety program for the premises that complies with section 19D; and (b) comply with the requirements set out in the food safety program; and (c) ensure that if there is a change in the activities carried out at the premises, that the food safety program is reviewed and, if necessary, revised to enable it to continue to comply with section 19D; and (d) give the registration authority a copy of any revision that is made to the food safety program within 14 days after the revision is made. (2) The proprietor of a declared premises complies with subsection (1)(a) if the proprietor uses a standard food safety program for the premises. (3) If an audit certificate given under section 19L or 19M states that a food safety program for a premises was adequate at the date of the audit, the proprietor of the premises is to be taken to be complying with subsection (1)(a) on that date. (4) Subsection (1) does not apply until the premises is first registered, or has its registration renewed or transferred for the first time, after it becomes a declared premises. (5) A failure to comply with subsection (1) is a ground for- (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. Food Act 1984 - SECT 19F Directions concerning food safety programs 19F. Directions concerning food safety programs (1) The Secretary or the registration authority may direct the proprietor of a food business that uses a declared premises in connection with the business- (a) to comply with any specified requirement in the food safety program for the premises; or (b) if Division 3A applies to the premises, to have the food safety program for the premises audited in accordance with this Act. (2) A direction must be in writing and must allow the proprietor at least 28 days to comply with the direction. (3) A failure to comply with a direction within the time allowed is a ground for- (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. Division 2-Food safety supervisors Food Act 1984 - SECT 19G Food safety supervisors 19G. Food safety supervisors (1) A food safety supervisor is a person who, in relation to a declared premises- (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 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 ensure that that handling is done safely. (2) In this section, food safety competency standard means a food safety competency standard approved by a relevant State, national or international statutory or regulatory body. (3) The regulations may specify who the relevant body is in a particular case or set of circumstances. Food Act 1984 - SECT 19GA Declared premises must have food safety supervisor 19GA. Declared premises must have food safety supervisor (1) The proprietor of a food business must, in relation to any declared premises used in connection with the business, ensure that there is a food safety supervisor for the premises. (2) The food safety supervisor for a premises may be the proprietor of the premises. (3) A failure to comply with this section is a ground for- (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. Food Act 1984 - SECT 19GB Name of supervisor to be provided on request 19GB. Name of supervisor to be provided on request The proprietor of a declared premises must give the registration authority written details of the name and of the qualifications or experience of the current food safety supervisor for the premises within 7 days of being asked to do so by the registration authority. Division 3-Inspection of standard food safety programs Food Act 1984 - SECT 19H Application of this Division 19H. Application of this Division This Division only applies to a food premises if- (a) the food safety program for the premises is a standard food safety program; and (b) the proprietor of the premises has advised the registration authority under section 38A(3) that that program is a standard food safety program. Food Act 1984 - SECT 19HA Registration authority may inspect premises 19HA. Registration authority may inspect premises The registration authority may inspect a food premises at any time to determine whether the food business carried out at the premises is operating in accordance with the food safety program for the premises. Food Act 1984 - SECT 19HB Procedure if program not implemented or complied with 19HB. Procedure if program not implemented or complied with (1) If the registration authority is of the opinion, after an inspection of a food premises has been conducted, that the food safety program for the premises has not been implemented, or has not been complied with, the registration authority must advise the proprietor of the food premises in writing- (a) of that opinion and the reasons for that opinion; and (b) of what needs to be remedied to ensure that the food safety program is implemented or fully complied with; and (c) that the matters referred to in paragraph (b) must be remedied- (i) as soon as is practicable, if the registration authority is of the opinion that a serious threat to public health exists on the food premises; or (ii) in any other case, within a specified period of 21 days or more. (2) A failure to comply with a notice under subsection (1) is a ground for- (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. Division 3A-Audit of non-standard food safety programs Food Act 1984 - SECT 19I Application of this Division 19I. Application of this Division This Division applies to any declared premises in respect of which Division 3 does not apply. Food Act 1984 - SECT 19IA Requirement to audit 19IA. Requirement to audit (1) The proprietor of a food business must, in relation to any declared premises used in connection with the business, ensure that a food safety program audit is conducted in relation to that program at the intervals required by section 19K if a declaration applying to the premises has been made under that section. (2) A failure to comply with subsection (1) is a ground for- (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. Food Act 1984 - SECT 19J Food safety program audit 19J. Food safety program audit (1) A food safety program audit is an audit that is conducted for the purposes of this Part to determine whether a food safety program- (a) has been complied with during the period covered by the audit; and (b) is still adequate at the date of the audit. (2) A food safety program audit of the food safety program of a premises must be conducted by an approved food safety auditor whose certificate under section 19P states that he or she is competent to conduct the audit of such a premises. Food Act 1984 - SECT 19K Declarations concerning food safety program audit intervals 19K. Declarations concerning food safety program audit intervals (1) The Secretary may, by notice published in the Government Gazette, declare when and how often a food safety program audit is to be conducted in relation to- (a) the food safety program of a particular declared premises; (b) the food safety programs of a class of declared premises; (c) the food safety programs of a class of premises that is the subject of a declaration under section 19C. (2) In making a declaration, the Secretary may provide for different audit intervals for premises within a class of premises to take account of differences in potential risks and hazards caused by- (a) the nature of the relevant food handled at the premises; (b) the size or nature of the activities carried out on or from the premises; (c) any relevant environmental, geographical, historical, logistical, biological or other circumstances; (d) a failure to comply with food safety programs or any other requirements of this Act, any other Act or the regulations under any other Act in the past. Food Act 1984 - SECT 19L Auditor must give certificate if program adequate 19L. Auditor must give certificate if program adequate If a food safety auditor is of the opinion, after conducting a food safety program audit, that the program has been complied with during the period covered by the audit and is still adequate, the auditor must give the proprietor of the premises to which the program relates a certificate confirming that opinion. $$T Food Act 1984 - SECT 19M Procedure if program not adequate 19M. Procedure if program not adequate (1) If a food safety auditor is of the opinion, after conducting a food safety program audit, that the program has not been complied with or is not adequate, the auditor must advise the proprietor of the premises to which the program relates in writing- (a) of that opinion and the reasons for that opinion; and (b) of what needs to be remedied to ensure that the food safety program is fully complied with or to make the program adequate; and (c) of the period within which the matters referred to in paragraph (b) should be remedied. (2) If the failure to comply with the food safety program, or any inadequacy of the program, may lead to a serious risk of food being sold or produced that is unsafe or unsuitable, the auditor must also notify the registration authority of the risk as soon as is practicable, together with details of the advice given by the auditor under subsection (1) in relation to the failure or inadequacy. (3) Within 14 days of the expiry of the period referred to in subsection (1)(c), the auditor must check to see whether the matters referred to in subsection (1)(b) have been remedied. (4) If the matters have been remedied, the auditor must give the proprietor a certificate stating- (a) that, in the opinion of the auditor, the food safety program for the premises is adequate; and (b) that while- (i) there was a failure to comply with certain requirements of the program during the audit period, each failure that could be remedied has now been remedied; or (ii) the program became inadequate during the audit period, each inadequacy has now been remedied. (5) The auditor must describe each failure or inadequacy that has been remedied in the certificate. (6) If not all of the matters that could be remedied have been remedied- (a) if the failure to remedy any of those matters may lead to a serious risk of food being sold or produced that is unsafe or unsuitable, the auditor must notify the registration authority of the risk as soon as is practicable; or (b) in any other case, the auditor must notify the registration authority of the failure of the proprietor to comply with the food safety program, or of the inadequacy of the program, within 14 days after conducting the check. (7) If, in the opinion of the auditor, there has been a failure to comply with a requirement of the food safety program and it is no longer possible to remedy that failure, the auditor- (a) need not comply with subsections (1)(b) and (c) in relation to that failure, but must still comply with subsection (2) if it is relevant to the failure; and (b) if failures of that nature are the only compliance failures in relation to the program and the program is adequate, must give the proprietor a certificate describing the failures and stating that the program is adequate and has otherwise been complied with; and (c) in any other case, must ensure that those failures are described in any certificate given to the proprietor under subsection (4) or in any notice given to the registration authority under subsection (6)(b). Food Act 1984 - SECT 19N Audit certificates must be given to the registration authority 19N. Audit certificates must be given to the registration authority (1) The proprietor of a declared premises must give a copy of any audit certificate the proprietor is given under section 19L or 19M to the registration authority within 14 days after being given the certificate. (2) A failure to comply with this section is a ground for- (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. Food Act 1984 - SECT 19O Only approved auditors may conduct audits 19O. Only approved auditors may conduct audits A person must not conduct a food safety program audit unless he or she is an approved food safety auditor in respect of the class of food premises to which the food safety program relates. Penalty: 20 penalty units for a first offence and 40 penalty units for a second or subsequent offence. Food Act 1984 - SECT 19P Appointment of food safety auditors 19P. Appointment of food safety auditors (1) In this section and in sections 19Q and 19T, certifying body means the Secretary or any person who the regulations state is to be able to make certifications for the purposes of this section. (2) A certifying body may certify in writing that a natural person is competent to conduct a food safety program audit. (3) In certifying a person, the certifying body- (a) may specify on the certificate that the certification applies with respect to all, or only certain, classes of food premises; and (b) may impose any conditions on the certification that the certifying body considers to be appropriate; and (c) may specify for how long the certificate remains current. (4) If the regulations provide for the payment of any fee in relation to a certification, the certifying body must not certify a person until the person has paid the fee. Food Act 1984 - SECT 19Q Auditor must comply with conditions of certification 19Q. Auditor must comply with conditions of certification An approved food safety auditor must comply with any condition imposed by the certifying body in certifying him or her to be a food safety auditor. Penalty: 20 penalty units for a first offence and 40 penalty units for a second or subsequent offence. Food Act 1984 - SECT 19R Offence to impersonate approved auditor 19R. Offence to impersonate approved auditor A person must not- (a) use or take the title "approved food safety auditor"; or (b) directly or indirectly represent that he or she is an approved food safety auditor or is authorised to conduct a food safety program audit- unless the person is an approved food safety auditor. Penalty: 20 penalty units for a first offence and 40 penalty units for a second or subsequent offence. Food Act 1984 - SECT 19S Conflict of interest to be avoided 19S. Conflict of interest to be avoided (1) A person must not conduct a food safety program audit of a food safety program that the person has written or that the person has assisted in preparing. Penalty: 20 penalty units for a first offence and 40 penalty units for a second or subsequent offence. (2) A person must not conduct a food safety program audit of the food safety program of a premises if the person is the proprietor, or an employee or officer of the proprietor, of the premises. Penalty: 20 penalty units for a first offence and 40 penalty units for a second or subsequent offence. (3) A person must not conduct a food safety program audit of a food safety program as an employee of another person if any other employee of that other person has written, or has assisted in preparing, that program. Penalty: 20 penalty units for a first offence and 40 penalty units for a second or subsequent offence. Food Act 1984 - SECT 19T Revocation of approval to act as an auditor 19T. Revocation of approval to act as an auditor (1) A certifying body may, after giving a person a chance to be heard, revoke that person's certification as an approved food safety auditor if the certifying body is satisfied that- (a) the certification was granted on the basis of fraud, misrepresentation or the concealment of facts; or (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 carry out food safety program audits; or (d) the person has been guilty of any fraudulent conduct in carrying out an audit; or (e) the person has not satisfactorily carried out 2 or more food safety program audits. (2) Despite subsection (1), only the Secretary may revoke the certification of a person who was certified by the Secretary. Division 4-Miscellaneous matters Food Act 1984 - SECT 19U Restrictions applying to council staff etc. 19U. Restrictions applying to council staff etc. (1) This section applies to a person who- (a) is a member of a council's staff; or (b) is employed, or has been delegated, to do any work on behalf of a council involving food premises or food safety programs. * * * * * (4) The person must not conduct, or assist in conducting, a food safety program audit of a food safety program for- (a) any food premises that is within the council's municipal district; or * * * * * Penalty: 20 penalty units for a first offence and 40 penalty units for a second or subsequent offence. (5) The regulations may exempt a class of person from subsection (4) in specified circumstances. Food Act 1984 - SECT 19V Exemptions concerning food safety programs 19V. Exemptions concerning food safety programs (1) The Secretary may exempt a proprietor of a declared premises, or the proprietors of a class of declared premises, from- (a) the need to have a food safety program, or for a food safety program that fully complies with this Act; or (b) the need to comply with any requirement in a food safety program; or (c) the need to have a food safety program audited in accordance with this Act; or (ca) the need to have a food safety supervisor in relation to a premises; or (d) the need to comply with any other requirement imposed on proprietors by this Part. (2) In granting an exemption, the Secretary- (a) must issue the exemption in writing; and (b) must specify the period for which it is to apply; and (c) may impose any condition that the Secretary considers to be appropriate. (3) The Secretary may vary or revoke an exemption at any time by giving the proprietor written notice of the variation or revocation. (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 of the premises; (b) the revocation or suspension of registration of the premises. Food Act 1984 - SECT 19W Penalties applying to this Part 19W. Penalties applying to this Part No penalties other than those expressly provided for in this Part apply to any failure to comply with this Part. _______________ Food Act 1984 - PART IV PART IV AUTHORIZED OFFICERS Food Act 1984 - SECT 20 Authorized officers 20. Authorized officers (1) The Secretary may authorise in writing- (a) specific people who are officers or employees of the public service or of a public statutory body; (b) a class of employees in the public service; (c) a class of officers or employees of a public statutory body; (d) people (either specifically or as a class) who are appointed to be inspectors or authorised officers or people having similar functions under any other Act- to be authorised officers for the purposes of this Act. (2) In granting such an authority, the Secretary may- (a) limit the authority- (i) to specified premises or vehicles or specified classes of premises or vehicles; (ii) to a specified period of time; (iii) to a particular investigation or for a particular purpose; (b) specify that the authority is only to apply to particular powers, authorities, functions or duties of an authorised officer; (c) impose conditions on the authority (including a requirement to comply with any directions of the Secretary). (3) Every authorized officer shall be furnished by the Secretary or the council (as the case requires) with a certificate of his authorization bearing on it a photograph of the authorized officer. (3A) If the Secretary imposes any restriction on an authorisation, the Secretary must ensure that the restriction is stated on the certificate of authorisation. (4) An authorized officer shall carry the certificate furnished to him under subsection (3) on his person at all times while he is exercising the powers and authorities or discharging the functions and duties conferred or imposed upon him by or under this Act and shall produce that certificate to any person on demand. (5) Unless acting in accordance with a delegation from the Secretary under section 8A of the Health Act 1958, an authorized officer (being a medical officer of health or an environmental health officer) shall not exercise the powers and authorities or discharge the functions and duties conferred or imposed upon him by or under this Act in or with respect to any food premises being operated by or on behalf of the Crown or on land that is not part of a municipal district. * * * * * Food Act 1984 - SECT 21 Powers of authorized officers 21. Powers of authorized officers (1) In the execution of this Act an authorized officer with such assistants as he thinks necessary may- (a) at any reasonable time enter any premises or other place in or at which he believes on reasonable grounds that any article is sold or handled for sale and therein may- (i) make such investigation and enquiry as are necessary to ascertain whether the provisions of this Act are being complied with; (ii) inspect the premises or other place (as the case may be) and examine any fittings, fixtures, documents or articles contained therein including anything that he believes on reasonable grounds to be an article; (iii) open and examine any package that he believes on reasonable grounds contains an article; (iv) subject to this Act, take samples of any article; (v) seize any article by means of or in relation to which he believes on reasonable grounds that any provision of this Act has been contravened or not complied with and detain or remove to some suitable place any article so seized; (vi) mark, fasten, secure or seal any article or, where it is reasonably necessary to do so, mark, fasten, secure or seal any door, gate or opening that he believes on reasonable grounds affords access to an article; (vii) seize or take samples of any thing or matter (apart from any article of which a sample may be taken pursuant to subparagraph (iv) or which may be seized pursuant to subparagraph (v)) that he believes on reasonable grounds may be used as evidence in a proceeding under this Act and detain or remove to some suitable place any samples so taken or thing or matter so seized; and (viii) take such photographs or audio or visual recordings as he considers necessary; (b) stop, detain and search any vehicle used or that he believes on reasonable grounds is being or is likely to be used for the conveyance of any article or in or on which he believes on reasonable grounds any article is sold or handled for sale and exercise in relation to that vehicle any of the powers or authorities conferred upon him by paragraph (a) in relation to any premises or other place; (c) require a person found by him committing an offence against this Act or who he believes on reasonable grounds has committed an offence against this Act or whose name and address are in his opinion reasonably required to state his full name and the address of his usual place of residence and, if he suspects on reasonable grounds that a name or address so stated is false, may require him to produce evidence of the correctness thereof; (d) in a case where he is obstructed or believes on reasonable grounds that he may be obstructed in the exercise of the powers or authorities or the discharge of the functions or duties conferred or imposed upon him by or under this Act, call to his aid a member of the police force, whereupon it shall be the duty of a member of the police force so called to assist him as required and a member so assisting shall have the same powers and authorities as are conferred upon an authorized officer by this Act; and (e) exercise such other powers or authorities and discharge such other functions or duties as are prescribed. (2) Where the Secretary certifies that the sale or the handling for sale of any food having any particular physical characteristics is likely to involve a contravention of or a failure to comply with this Act, the finding of any food having those physical characteristics and appearing to have been sold or handled for sale shall, for the purposes of subsection (1), constitute reasonable grounds for believing that there has been a contravention of or a failure to comply with this Act with respect to that food. (3) If in the opinion of the Secretary there are reasonable grounds for suspecting that any person is (for the purposes of the sale or the preparing for sale of food) in possession of any article by means of which or in relation to which any provision of this Act has been contravened or not complied with, the Secretary may require such person to produce for the Secretary's inspection or to produce to an authorized officer any relevant books and the Secretary or the authorized officer may inspect, examine and make copies of or extracts from any book so produced or remove it for the purpose of making a copy thereof or extracts therefrom. Food Act 1984 - SECT 22 Procuring of samples of food 22. Procuring of samples of food (1) An authorized officer may, on payment or tender to the person in whose possession the food is or to his servant or agent of the current market value thereof or of the rate prescribed, demand and procure such samples of the food as are required for the purposes of this Act. (2) Where any food is kept for retail sale in an unopened package, a person shall not be required by an authorized officer to sell less than the whole of that package. (3) If a rate has been prescribed for the payment for a sample it shall not be necessary for an authorized officer to tender any higher price for that sample. (4) The procuring of a sample pursuant to this section and the payment or tender of the current market value thereof or of the rate prescribed (as the case requires) shall for the purposes of this Act be deemed to be a sale by the person from whom the sample was obtained to the authorized officer of the food contained in the sample. (5) In the case of a vending machine, it is sufficient compliance with subsection (1) if the authorized officer obtains the sample by making proper payment for it. Food Act 1984 - SECT 23 Procedures on taking samples 23. Procedures on taking samples (1) Where an authorized officer obtains a sample of any food with the intention that it be submitted for analysis, he shall, before or as soon as practicable after obtaining the sample, inform the person from whom the sample was obtained or the person having charge of that food of his intention to have the sample analysed. (2) If a prescribed food standard does not otherwise prescribe in relation to the class or description of food concerned or the analysis proposed to be carried out and an authorized officer obtains a sample of any food with the intention that the sample be submitted for analysis, he shall- (a) subject to subsection (3), divide the sample into three separate parts and mark and seal or fasten each part in such manner as its nature will permit; (b) leave one part with the person from whom the sample was obtained or a person appearing to be the servant or agent of that person; (c) submit one of the remaining parts for analysis; and (d) retain the other remaining part for future comparison. (3) If the division of a sample into three separate parts in accordance with paragraph (a) of subsection (2) would in the opinion of the authorized officer- (a) so affect or impair the composition or quality of the sample as to render the separate parts unsuitable for accurate analysis; (b) furnish parts insufficient for accurate analysis; or (c) render the sample in any other way unsuitable for analysis including a method of analysis prescribed in relation to the food from which the sample was taken- the authorized officer shall deal with the sample in such manner as is appropriate in the circumstances having regard to this Act. (4) Where a sample of any food is obtained by an authorized officer in the form of separate or severable objects it shall not be necessary for him in dividing that sample into parts in accordance with this section to divide any one of those objects and it shall be sufficient compliance with this section if he- (a) obtains a number of those objects; (b) divides the number so obtained into the requisite number of parts so that each part consists of one or more than one of such separate or severable objects; and (c) deals with those parts in accordance with a prescribed food standard or subsection (2) or (3), as the case requires. (5) An authorized officer shall be deemed to have complied with the provisions of this section notwithstanding the failure by a person specified in subsection (2)(b) to accept any part or parts required to be delivered to him in accordance with this section. Food Act 1984 - SECT 24 Duties of officer upon seizure and detention of article 24. Duties of officer upon seizure and detention of article An authorized officer, upon the seizure and detention by him of an article under this Act, shall forthwith- (a) give notice in the prescribed form of the seizure and detention to the person apparently in charge of the article; (b) if there is no person apparently in charge of the article and the name and address in Victoria of a person appearing to the authorized officer to be the consignor or owner of the article is set out on or attached to the article or a package containing the article, or the name and address in Victoria of the consignor or owner of the article is otherwise known to the authorized officer, give notice in the prescribed form of the seizure and detention to that person; or (c) in any other case, give notice in the prescribed form of the seizure and detention to the importer or consignee of the article or his agent if the authorized officer knows the name and address in Victoria of such importer, consignee or agent. Food Act 1984 - SECT 25 Keeping and storage of certain articles 25. Keeping and storage of certain articles An article that has been seized and detained or otherwise obtained under this Act by an authorized officer may, at the direction of the authorized officer- (a) be kept and stored in, at or on the premises or other place or vehicle where it was seized and detained or otherwise obtained; or (b) be removed to any other suitable place and there kept and stored. Food Act 1984 - SECT 26 Remedy in respect of articles seized 26. Remedy in respect of articles seized (1) Where an article is seized and detained by an authorized officer under section 21, any person claiming the article may within 7 days after the seizure make application in the prescribed form to the Magistrates' Court for an order directing the authorized officer to release from detention the article seized by him. (2) Where an application is made to the Magistrates' Court under subsection (1), the applicant shall forthwith give to the authorized officer responsible for the seizure and detention of the article in question a copy of the application. (3) Upon hearing an application under subsection (1) the Magistrates' Court- (a) if it is satisfied that- (i) the authorized officer responsible for the seizure and detention of the article did not have reasonable grounds for believing that the article was one by means of or in relation to which any provision of this Act had been contravened or not complied with; or (ii) the article was not one by means of or in relation to which any provision of this Act had been contravened or not complied with- shall make an order disallowing the seizure and directing the authorized officer to release the article from detention; or (b) if it is not so satisfied, shall refuse the application and make an order confirming the seizure and detention of the article- and may make such order as it thinks fit in respect of the costs and expenses of and incidental to the removal and storage of the article seized. (4) Where- (a) an application is made under subsection (1) and the application is refused, then upon that refusal; or (b) an application is not made under subsection (1), then upon the expiration of the period of 7 days after the seizure- the article seized shall become the property of the Secretary or where the authorized officer who seized the article is an environmental health officer of a council, the property of that council, and shall be destroyed or otherwise disposed of as the Secretary or the council (as the case requires) directs. * * * * * Food Act 1984 - SECT 27 Destruction or other disposal of seized food 27. Destruction or other disposal of seized food Notwithstanding anything in sections 25 and 26, where an authorized officer has seized any food under this Act and- (a) the owner of the food or the person in whose possession the food was at the time of seizure consents to the destruction or other disposal thereof; or (b) the food is in the opinion of the authorized officer decayed, deteriorated or putrefied- the authorized officer- (c) may destroy or otherwise dispose of the food; or (d) if the owner of the food or the person in whose possession the food was at the time of seizure so requests, may permit the owner or, as the case may be, that person to destroy or otherwise dispose of the food subject to such reasonable conditions as the authorized officer stipulates. Food Act 1984 - SECT 28 Liability for costs and expenses of storage or destruction or other disposal of seized article 28. Liability for costs and expenses of storage or destruction or other disposal of seized article Where an article is seized and detained under this Act and- (a) an application is not made for its release from detention under section 26(1); or (b) the article is destroyed or otherwise disposed of pursuant to section 26(4) or section 27- the person in whose possession the article was when seized, shall be liable to pay the costs and expenses incurred in or in connexion with the storage, destruction or other disposal of that article. Food Act 1984 - SECT 29 Offences with respect to authorized officers and articles 29. Offences with respect to authorized officers and articles A person who- (a) except with the authority of an authorized officer or pursuant to an order of a court- (i) removes, alters or interferes in any way with- (A) an article seized and detained under this Act; or (B) any article or other thing or matter or a sample of any article or other thing or matter obtained by an authorized officer under section 21; or (ii) erases, alters, opens, breaks or removes a mark, seal or fastening placed by an authorized officer in the exercise of his powers or authorities or the discharge of his functions or duties under this Act- (A) on an article other than part of a sample or any sample, object or package left by the authorized officer with a person from whom a sample was obtained; or (B) on any door, gate or opening affording access to an article; (b) refuses to sell to an authorized officer any food or to allow him to take a sample of any food or other article in such quantity as he reasonably requires; (c) refuses or neglects, when required by or under this Act to do so, to render assistance or to furnish information to an authorized officer or other person; (d) fails, when required by the Secretary to do so, to produce for the Secretary's inspection or to produce to an authorized officer any book required or authorized by or under this Act to be produced, or fails to allow an authorized officer to examine or to make a copy of or an extract from any book so produced or to remove it for the purpose of making a copy thereof or extracts therefrom; (e) contravenes or fails to comply with any lawful direction or order of an authorized officer; (f) makes orally or in writing a statement knowing it to be false or misleading to an authorized officer exercising a power or authority or discharging a function or duty under this Act; (g) assaults, obstructs or attempts to obstruct, threatens, abuses, insults, intimidates or attempts to intimidate any authorized officer or other person in the exercise of his powers or authorities or the discharge of his functions or duties under this Act; or (h) when required by an authorized officer to do so, fails to state his full name and the address of his usual place of residence or states a false name or address- is guilty of an offence. Penalty: For a first offence 25 penalty units, and for a second or subsequent offence 50 penalty units. _______________ Food Act 1984 - PART V PART V ANALYSTS Food Act 1984 - SECT 30 Analysts 30. Analysts (1) The Secretary may authorize in writing persons, whom the Secretary considers to be appropriately qualified, to carry out analyses for the purposes of this Act. (2) An authority given under subsection (1)- (a) may be in respect of a particular type of analysis specified in the authority; and (b) may at any time be varied or revoked. (3) A person who is directly or indirectly engaged in any trade connected with the manufacture or sale of food shall not be authorized to carry out analyses for the purposes of this Act where his engagement in that trade would conflict with his duty as a person authorized to carry out analyses for the purposes of this Act. (4) A person authorized to carry out analyses for the purposes of this Act who becomes directly or indirectly engaged in any trade connected with the manufacture or sale of food shall forthwith notify the Secretary in writing of that engagement and, upon receipt of that notification, the Secretary may revoke the authority given to that person under subsection (1). (5) The Secretary shall, at the request of a person authorized to carry out analyses for the purposes of this Act, revoke the authority given to that person under subsection (1). (6) The Secretary shall maintain a list of persons authorized for the time being to carry out analyses for the purposes of this Act and shall make sure that a copy of the list is open for inspection by any person, and that copies of the list are available, at the principal office of the Department at all reasonable times. (6A) The Secretary may charge any fee prescribed by the Governor in Council for providing a copy of the list or part of it to a person for that person's use. (7) A person shall not be prohibited from being authorized or continuing to be authorized as an analyst for the purposes of this Act by reason only that he is employed by or on behalf of a government department to carry out analyses and that government department is engaged in any trade connected with the manufacture or sale of food. Food Act 1984 - SECT 31 Duties of analysts 31. Duties of analysts Every analyst shall- (a) make an analysis of any article submitted to him pursuant to this Act for analysis or supervise the analysis of the article by any other person; * * * * * (c) supply to the person submitting the article a certificate in the prescribed form setting out the result of the analysis; and (d) where any apparatus to be used or method to be observed has been prescribed-use that apparatus and observe that method accordingly and declare in his certificate that he has done so. Food Act 1984 - SECT 32 Councils to submit samples for analysis 32. Councils to submit samples for analysis (1) Subject to this section, every council shall submit for analysis during each year not less than three samples of food for each thousand persons of the population of the municipal district so that one quarter of those samples shall be submitted for analysis in every quarter of each year. (2) Every analyst making an analysis for a council under this section shall report to the council forthwith after the end of each quarter the number of analyses so made by him during that quarter and specify the result of each analysis. (3) Every report received by a council from an analyst under this section shall be presented at the next ordinary meeting of the council held after the receipt of that report. (4) The Secretary may in writing exempt a Council from compliance with subsection (1) on any terms or conditions that the Secretary determines including, but not limited to, a requirement that a Council must arrange for specified surveys to be conducted of the standard of food premises within its municipal district and of the food prepared at them. Food Act 1984 - SECT 33 Copy of certificate of analysis 33. Copy of certificate of analysis A person from whom any article has been obtained for the purpose of its being submitted for analysis may, free of charge, obtain a copy of the certificate of the result of the analysis from the person who submitted the article for analysis. Food Act 1984 - SECT 34 Prohibition on use of analyst's certificate for certain purposes 34. Prohibition on use of analyst's certificate for certain purposes A person who for the purposes of any trade or advertisement uses in whole or in part or authorizes or permits the use in whole or in part of any copy of an analyst's certificate obtained under this Act or the result of an analysis made for the purposes of this Act is guilty of an offence. Penalty: For a first offence 20 penalty units, and for a second or subsequent offence 40 penalty units. --------- Food Act 1984 - PART VI PART VI REGISTRATION OF FOOD PREMISES Food Act 1984 - SECT 35 Food business premises to be registered with council 35. Food business premises to be registered with council (1) The proprietor of a food business must not allow the business to operate from any food premises- (a) that is not registered in accordance with this Part with the council of the municipal district in which the premises is located; or (b) during any time that the registration of the premises under this Part is suspended. Penalty: 50 penalty units for a first offence and 100 penalty units for a second or subsequent offence. (2) This section does not apply- (a) to the Crown; or (b) in respect of any food business being operated on behalf of the Crown; or (c) to any premises that is on land that is not part of a municipal district. * * * * * Food Act 1984 - SECT 36 Registration of Crown premises 36. Registration of Crown premises Any food premises that is used for the purposes of a food business, but that does not have to be registered under section 35, must be registered with the Secretary. Food Act 1984 - SECT 37 Notification of certain information not required 37. Notification of certain information not required Section 16 (to the extent to which it requires the notification of the information specified in the Food Safety Standards that is to be notified to the registration authority before a food business is conducted) does not apply with respect to any food premises that is registered, or to be registered, under this Part. Food Act 1984 - SECT 38 Exemption from registration 38. Exemption from registration * * * * * * * * * * (3) The council may by resolution or the Secretary may in writing exempt any food premises or class of food premises from the requirement to be registered with the council or the Secretary (as the case requires) under this Act. (4) An exemption granted under subsection (3) may be amended, varied or revoked in the same manner in which it was granted. (5) A premises used solely as a meat processing facility within the meaning of the Meat Industry Act 1993 in respect of which a licence is in force under that Act is exempt from the requirement to be registered under this Act while that licence is in force. (6) A vehicle used solely as a meat transport vehicle licensed under the regulations made under the Meat Industry Act 1993 is exempt from the requirement to be registered under this Act while the licence is in force. (7) A food premises that is used by a business in respect of which a licence has been issued under Part 3 of the Dairy Act 2000 is exempt from the requirement to be registered under this Act while that licence is in force. (8) A food premises that is used by a business in respect of which a seafood safety licence has been issued under Part 3 of the Seafood Safety Act 2003 is exempt from the requirement to be registered under this Act while that licence is in force. Food Act 1984 - SECT 38A Applications must include food safety program 38A. Applications must include food safety program (1) An application for the registration of a declared premises must be accompanied by a copy of the food safety program for the premises. (2) An application for the renewal or transfer of registration of a declared premises must be accompanied by one of the following- (a) a statement signed by the proprietor of the premises that the current food safety program for the premises is identical to the last copy of the food safety program lodged with the registration authority; or (b) a statement signed by the proprietor of the premises- (i) that the current food safety program for the premises has not been significantly amended since the date the last copy of the program was lodged with the registration authority; and (ii) containing full details of the amendments that have been made since that date; or (c) a copy of the food safety program for the premises. (3) If the food safety program for the premises is a standard food safety program, the application for registration, renewal or transfer must also state that fact. Food Act 1984 - SECT 38B Application must include name of food safety supervisor 38B. Application must include name of food safety supervisor An application for the registration, renewal of registration or transfer of registration of a declared premises must include the name of the food safety supervisor for the premises. Food Act 1984 - SECT 39 Requirements for registration 39. Requirements for registration (1) Before registering, or renewing or transferring the registration of, any food premises under this Act, the registration authority- (a) must inspect the premises; and (b) must be satisfied that all the relevant requirements of this Act with respect to the premises have been complied with. (2) In addition, if the premises is a declared premises, the registration authority must be satisfied- (a) if the application for registration, renewal or transfer states that the food safety program for the premises is a standard food safety program, that the program complies with the conditions listed in section 19DC; and (b) in any other case, that there is a food safety program for the premises that complies with section 19D; and (c) that no other ground for the refusal of registration, the renewal of registration or the transfer of registration, of the premises exists under Part IIIB. Food Act 1984 - SECT 39A Registration etc. may be made despite minor defects 39A. Registration etc. may be made despite minor defects (1) Despite sections 19C and 39, the registration authority may register, or renew or transfer the registration of, a food premises even though, in its opinion- (a) one or more of the relevant requirements of this Act with respect to the premises has not been complied with; or (b) one or more grounds for the refusal of registration, the renewal of registration or the transfer of registration, of the premises exists under Part IIIB. (2) The registration authority may only do this if it is satisfied- (a) in the case of a failure to do something by a specified time that has passed, that the thing will be done within a new time specified by the registration authority; or (b) in the case of a failure to do something that it is no longer possible to remedy, that it is not likely that a similar failure will occur again; or (c) in any other case- (i) that the failure to comply poses no immediate risk to the health of any person; and (ii) that the failure to comply can, and will, be remedied within the time specified by the registration authority. (3) If the registration authority exercises the power conferred by subsection (1), it is a condition of the registration, renewal or transfer- (a) that any thing referred to in subsection (2)(a) be done; and (b) that any failure referred to in subsection (2)(c) be remedied- within the time specified in writing by the registration authority. (4) The Secretary may direct a council to not exercise the power conferred on it by subsection (1) in relation to a food premises or to a class of food premises or to a particular requirement or type of requirement. (5) A direction must be made in writing. (6) A council must comply with a direction. Food Act 1984 - SECT 39B Offence to fail to comply with registration condition 39B. Offence to fail to comply with registration condition If the registration, renewal of registration or transfer of a food premises is the subject of a condition under section 39A(3), the proprietor of the premises must comply with the condition. Penalty: 50 penalty units for a first offence and 100 penalty units for a second or subsequent offence. Food Act 1984 - SECT 39C Contravention of section 34(1) of the Meat Industry Act 1993 39C. Contravention of section 34(1) of the Meat Industry Act 1993 The proprietor of a food premises must not contravene the requirements of section 34(1) of the Meat Industry Act 1993 at, on or in respect of a food premises that is registered, or is required to be registered, under this Act. Penalty: First offence 100 penalty units. Second or subsequent offence 500 penalty units or imprisonment for 24 months or both. Food Act 1984 - SECT 40 Certificates of registration 40. Certificates of registration (1) On registering a food premises under this Act, the registration authority must give the person in whose name the premises is to be registered a certificate of registration in the form required by the regulations. (2) If a food premises is required to be registered with the council by or under Part XII or Part XIX of the Health Act 1958, the council may, subject to the requirements of that Act applicable to registration being complied with, incorporate the certificate of registration under this section in one document with any certificate of registration to be issued under that Act. Food Act 1984 - SECT 40A Certificates must be shown on demand 40A. Certificates must be shown on demand A person in whose name a food premises is registered must produce the certificate of registration issued in respect of the premises for inspection, if asked to do so by an authorised officer. Penalty: 10 penalty units. Food Act 1984 - SECT 40B Minister may specify period of registration 40B. Minister may specify period of registration (1) The Minister may, by notice published in the Government Gazette, declare that the registration of a specified class of food premises is to remain in force for a specified period of more than 1 year. (2) The Minister may, by notice published in the Government Gazette, vary any such declaration. (3) In making a declaration, the Minister may also declare what transitional arrangements are to apply to enable the effective operation of the declaration. Food Act 1984 - SECT 40C Period for which registration lasts 40C. Period for which registration lasts The registration of a food premises continues in force- (a) if the premises is within a class specified in a notice under section 40B, for the period specified for premises of that class in the notice; or (b) in any other case, for 1 year from the date it was last granted or renewed- unless it is revoked or suspended before that date. Food Act 1984 - SECT 40D Revocation or suspension of registration 40D. Revocation or suspension of registration (1) The registration authority may suspend or revoke the registration of a food premises if- (a) a person is convicted of a second or subsequent offence against this Act that was committed in, at, on or in respect of the premises; or (b) a condition imposed in respect of the premises under section 19V(2)(c) or 39A is breached; or (c) a ground for the revocation or suspension of the registration of the premises exists under Part IIIB and the matter giving rise to that ground has not been dealt with under section 39A; or (d) the registration authority receives a notice from a food safety auditor under section 19M(2) or (6) in relation to the premises. (2) In suspending a registration, the registration authority must specify for how long the suspension is to last. Food Act 1984 - SECT 40E Secretary may direct council to revoke or suspend a registration 40E. Secretary may direct council to revoke or suspend a registration (1) The Secretary may direct a council to suspend or revoke the registration of a food premises if, in the opinion of the Secretary, any of the matters listed in section 40D(1) apply. (2) In directing a suspension, the Secretary must specify for how long the suspension is to last. (3) A direction must be in writing. (4) A council must comply with a direction. * * * * * Food Act 1984 - SECT 41A Registration fees 41A. Registration fees (1) The fees for registration, renewal of registration and transfer of registration are- (a) if registration is made with a Council, as determined by resolution of the Council; or (b) in any other case, as prescribed. (2) Fees determined by the Council under this section- (a) may vary according to the size or nature of the food premises; and (b) must not exceed the amount (if any) for the time being fixed by the Governor in Council by Order published in the Government Gazette. Food Act 1984 - SECT 42 Appeal 42. Appeal (1) A person who is aggrieved by a decision of a registration authority refusing to grant an application for or for the renewal of the registration of any food premises under this Act or suspending or revoking any such registration may appeal to the Magistrates' Court within one month after receiving notification of the refusal, suspension or revocation. (2) Upon any appeal under subsection (1) the court shall- (a) reconsider the decision of the registration authority; and (b) hear any relevant evidence tendered whether by the person aggrieved or by the registration authority. (3) The costs of and incidental to an appeal under subsection (1) shall be in the discretion of the court to which the appeal is made. Food Act 1984 - SECT 43 Register book 43. Register book (1) Every registration authority shall cause to be prepared and kept books in the prescribed form and containing the prescribed particulars as to all registrations or renewals or transfers thereof made under this Act. * * * * * (3) In any proceedings under this Act any such book as is referred to in subsection (1) shall be admissible as evidence of the facts stated therein. (4) A copy of any such book as is referred to in subsection (1) or of any entry therein certified as correct under the hand of the clerk of the municipality concerned or an officer of the Department authorized by the Secretary for the purposes of this section (as the case requires) shall for all purposes be sufficient evidence of the facts stated therein without production of the register or of any document or thing on which the registration was based. (5) The council concerned or the Secretary (as the case requires) shall cause a copy of any entry in any such book as is referred to in subsection (1) certified as correct in accordance with subsection (4) to be supplied free of charge to any person who requests it. (6) The fact that any food premises are not entered in any such book as is referred to in subsection (1) shall, in the absence of evidence to the contrary, be proof that those premises are not registered under this Act. Food Act 1984 - SECT 43A Transitional provision 43A. Transitional provision (1) This section applies if a premises that was registered under this Act immediately before section 33 of the Food (Amendment) Act 1997 came into operation becomes a meat processing facility within the meaning of the Meat Industry Act 1993 as a result of the amendments made by section 25 of the Food (Amendment) Act 1997. (2) Until the registration of the premises under this Act expires or is suspended or revoked- (a) this Act continues to apply to the premises; and (b) the proprietor of the premises may continue to do anything at the premises that he, she or it was entitled to do at the premises immediately before section 33 of the Food (Amendment) Act 1997 came into operation, despite anything to the contrary in section 40 of the Meat Industry Act 1993. --------- Food Act 1984 - PART VII PART VII EMERGENCY POWERS Food Act 1984 - SECT 44 Making of order 44. Making of order An order may be made under this Part by the Secretary if the Secretary has reasonable grounds to believe that the making of the order is necessary to prevent or reduce the possibility of a serious danger to public health or to mitigate the adverse consequences of a serious danger to public health. Food Act 1984 - SECT 44A Nature of order 44A. Nature of order (1) An order under this Part may do any one or more of the following- (a) require the publication of warnings, in a form approved by the Secretary, that a particular food or type of food is unsafe; (b) prohibit the cultivation, taking, harvesting or obtaining, from a specified area, of a particular food or type of food or other primary produce intended to be used for human consumption; (c) prohibit a particular food or type of food from being advertised or sold; (d) direct that a particular food or type of food consigned or distributed for sale or sold be recalled and specify the manner in which, and the period within which, the recall is to be conducted; (e) direct that a particular food or type of food or other primary produce intended to be used for human consumption be impounded, isolated, destroyed or otherwise disposed of and specify the manner in which the impounding, isolation, destruction or disposal is to be conducted; (f) prohibit absolutely the carrying on of an activity in relation to a particular food or type of food, or permit the carrying on of the activity in accordance with conditions specified in the order; (g) without limiting the generality of paragraph (f), impose conditions for or with respect to requiring the taking and analysis of samples of the food or of water or soil or any other thing that is part of the environment in which that activity is carried on in relation to the food; (h) specify methods of analysis (not inconsistent with any methods prescribed by the Food Standards Code) of any samples required to be taken in accordance with the order. (2) An order under this Part may be varied or revoked by the Secretary in the same manner as the order was made. Food Act 1984 - SECT 44B Special provisions relating to recall orders 44B. Special provisions relating to recall orders (1) A recall order may require the person, or the persons of a class, that is bound by the order to disclose to the public or to a class of persons specified in the order, in a manner so specified, any one or more of the following- (a) the particular food or type of food to be recalled or disposed of; (b) the reasons why the food is considered to be unsafe; (c) the circumstances in which the consumption of the food is unsafe; (d) procedures for disposing of the food. (2) A person who is required by a recall order to conduct a recall of any food must give written notice to the Secretary of the completion of the recall as soon as practicable after that completion. (3) A person who is bound by a recall order is liable for any reasonable costs incurred by or on behalf of the Secretary in connection with the recall order and any such costs are taken to be a debt due to the Secretary from that person. (4) In any proceedings for the recovery of the debt, a certificate signed by the Secretary stating the amount of any costs and the manner in which they were incurred is evidence of the matters certified. Food Act 1984 - SECT 44C Manner of making orders 44C. Manner of making orders (1) An order under this Part- (a) may be made in writing addressed to the person or persons intended to be bound by it, and served on that person or each of those persons, as the case requires; or (b) may be addressed to several persons, to a class of persons, or to all persons. (2) Notice of an order addressed as referred to in subsection (1)(b) setting out the terms of the order and the persons to be bound by the order must, as soon as practicable after the order is made, be published in a newspaper that, in the opinion of the Secretary, will be most likely to bring the order to the attention of the persons bound by it. (3) An order under this Part, when it takes effect, is binding on the person or persons to whom it is addressed and on all the persons of any class to which it is addressed. (4) An order that is served on a person takes effect when it is served. (5) An order, notice of which is published under subsection (2), takes effect at the beginning of the first day on which the notice was published. (6) A order ceases to have effect at the expiration of 90 days after the day on which it takes effect unless it is sooner revoked. (7) Subsection (6) does not prevent a further order being made in the same terms as an order that has expired. Food Act 1984 - SECT 44D Compensation 44D. Compensation (1) A person bound by an order under this Part who suffers loss as a result of the making of the order may apply to the Secretary for compensation if the person considers that there were insufficient grounds for the making of the order. (2) If there were insufficient grounds for the making of the order, the Secretary is to pay just and reasonable compensation to the applicant. (3) The Secretary is to send written notification of the Secretary's determination as to the payment of compensation under this section to each applicant for the payment of compensation. (4) If the Secretary has not determined an application for compensation under this section within 28 days of receiving the application, the Secretary is taken to have refused to pay any compensation. (5) An applicant for the payment of compensation under this section who is dissatisfied with a determination by the Secretary as to the refusal to pay compensation or as to the amount of compensation may apply to the Magistrates' Court for a review of the determination- (a) within 28 days after the day on which notification of the determination was received; or (b) in a case to which subsection (4) applies, within 28 days after the 28-day period referred to in that subsection. (6) If the amount of compensation sought exceeds the jurisdictional limit of the Magistrates' Court, the application under subsection (5) is to be made to the Supreme Court. Food Act 1984 - SECT 44E Failure to comply with emergency order 44E. Failure to comply with emergency order A person must not, without reasonable excuse- (a) carry on an activity in contravention of any prohibition imposed on the person by an order under this Part; or (b) neglect or refuse to comply with a direction given by such an order; or (c) fail to comply with a condition specified in such an order. Penalty: $40 000 in the case of an individual or $200 000 in the case of a corporation. Food Act 1984 - SECT 44F Person has no right to be heard before order made 44F. Person has no right to be heard before order made In making an order under this Part, it is not necessary for the Secretary to give any person who may be affected by the order a chance to be heard before the order is made. Food Act 1984 - SECT 44G Secretary may obtain enforcement order 44G. Secretary may obtain enforcement order The Secretary may apply to the Supreme Court for an order against any person who is required to comply with an order made under this Part requiring the person to comply with the order. --------- Food Act 1984 - PART VIII PART VIII LEGAL PROCEEDINGS Food Act 1984 - SECT 45 Proceedings for offences 45. Proceedings for offences (1) Except as is otherwise expressly provided by this Act- (a) all charges for offences under this Act may be heard and determined in a summary way before the Magistrates' Court; and (b) all money, costs, and expenses made payable or recoverable by this Act may be recovered before the Magistrates' Court as a civil debt recoverable summarily or in any court of competent jurisdiction. (2) Subject to subsection (3), a prosecution for an offence against this Act in respect of any food obtained for analysis under this Act shall be instituted not later than 90 days after the day on which the food was so obtained. (3) The Magistrates' Court shall have power to make an order extending the time appointed by subsection (2) for instituting the prosecution where a person makes application for such an order not later than 90 days after the day on which the food was obtained. (4) The summons in a prosecution for an offence against this Act in which an analyst's certificate is to be used shall be made returnable not less than 14 days after the date on which it is served. (5) Where a summons referred to in subsection (4) is served less than 14 days before the return date of the summons the court may, on an application made in that behalf, extend the return date of the summons. (6) A copy of any analyst's certificate obtained on behalf of the informant shall be served with the summons in a prosecution for an offence against this Act in respect of any food. Food Act 1984 - SECT 45A Burden of proof as to statements on packages etc. 45A. Burden of proof as to statements on packages etc. In any prosecution under this Act the burden of proving the correctness of any statement in or on any label or advertisement with respect to the origin or composition or the therapeutic or nutritive properties or the therapeutic effects of any food is on the person charged. Food Act 1984 - SECT 45B Prosecutions 45B. Prosecutions In any prosecution under this Act- (a) a witness for the prosecution is not compelled to disclose the fact that the witness received any information or the name of any person from whom any information was received; and (b) no proof is required of the use by the person purchasing any food for analysis of the exact words of the section authorizing the purchase if the court decides that the person from whom the purchase was made was substantially informed of the purchaser's intention to have the food analysed. Food Act 1984 - SECT 46 Right of defendant to have third person before court 46. Right of defendant to have third person before court (1) A defendant charged with an offence against this Act who alleges that the contravention or failure to comply constituting the offence was due to the act or default of another person may, upon compliance with subsection (2), have that other person brought before the court by which the charge is to be heard and determined. (2) A defendant who desires to avail himself of the provisions of this section- (a) shall, at least ten days before the return day of the summons in question, give to the informant notice in writing of his intention to avail himself of the provisions of this section and particulars of his claim that- (i) the contravention or failure to comply was due to the act or default of another person; and (ii) he exercised due diligence to ensure compliance with the provisions of this Act in question; and (b) shall file a charge against the other person for an offence against this Act. (3) A summons to answer to any charge filed pursuant to paragraph (b) of subsection (2) shall require the person against whom the charge is filed to appear to answer to the charge at a date and place mentioned in the summons before the court by which the original charge is to be heard and determined and, where that date is not the return date of the original summons, the court shall adjourn the hearing of the original charge to that date or shall adjourn the hearing of the charges to a later date. (4) On the hearing of the charges- (a) the original informant or his legal practitioner as well as the other person who the defendant has alleged committed the offence- (i) may cross-examine the defendant (if he gives evidence) and any witness called by him; and (ii) may call evidence in rebuttal; and (b) the court- (i) may convict the other person if the contravention of or failure to comply with this Act is proved and the original defendant satisfies the court that the contravention or failure to comply was due to the act or default of that other person; (ii) shall dismiss the charge against the original defendant if, in addition to satisfying the court that the contravention or failure to comply was due to the act or default of the other person, he satisfies the court that he exercised due diligence to ensure compliance with the provisions of this Act in question; and (iii) may make such orders as to the costs of the proceedings as it thinks fit. (5) Where it appears to the Secretary or the registration authority that an offence against this Act has been committed in respect of which some person may be charged and the Secretary or the registration authority is reasonably satisfied that- (a) the offence was due to the act or default of some other person; and (b) the first-mentioned person could successfully defend a prosecution for the offence by availing himself of the provisions of this section- the Secretary or the registration authority may cause proceedings to be instituted against that other person for that offence without proceedings first being instituted against the first-mentioned person. (6) In proceedings taken pursuant to subsection (5) the other person may be charged with the offence with which the first-mentioned person might have been charged and, on proof that the offence was due to the act or default of that other person, he may be convicted of the offence. Food Act 1984 - SECT 46A Analysis is not necessary to conviction 46A. Analysis is not necessary to conviction Despite any provision of any other Act, in any prosecution under this Act if it appears to the court that the offence is sufficiently proved without an analysis, proof that an analysis has been made or of the results of an analysis is not necessary to conviction for the offence. Food Act 1984 - SECT 47 Power of court to order further analysis 47. Power of court to order further analysis In a prosecution for an offence against this Act the court may, at the request of any party and if satisfied that there are special circumstances which warrant it in so doing, cause the part or parts of any sample retained under section 23 to be sent to an analyst (other than an analyst who has made an analysis of any other part of the sample) and the first-mentioned analyst shall make an analysis of that part or those parts for the information of the court. Food Act 1984 - SECT 48 Power of court to order forfeiture 48. Power of court to order forfeiture (1) A court that convicts a person of an offence against this Act or before which a person is charged with an offence against this Act of which he is found guilty or to which he pleads guilty and in respect of which a conviction is not recorded may order that- (a) the article by means of or in relation to which the offence was committed; or (b) subject to subsection (3), any similar article belonging to and found in the possession of the defendant at the time of the commission of the offence- be forfeited to Her Majesty. (2) A court, in addition to exercising the powers conferred upon it by subsection (1) may, upon the application of an authorized officer and such notice as the court determines being given to such persons as the court directs, order that- (a) any article seized under this Act by that authorized officer (being an article by means of or in relation to which any provision of this Act is being or has been contravened or not complied with); or (b) subject to subsection (3), any similar article found with an article so seized- be forfeited to Her Majesty. (3) A court shall not order forfeiture of an article under this section if the court is satisfied with respect to that article that it is not one by means of or in relation to which any provision of this Act is being or has been contravened or not complied with. (4) Every article forfeited to Her Majesty under this section shall be destroyed or otherwise disposed of as the Secretary directs. Food Act 1984 - SECT 49 Liability of defendant for certain costs and expenses 49. Liability of defendant for certain costs and expenses Except as is otherwise expressly provided by this Act, a court that convicts a person of an offence against this Act or before which a person is charged with an offence against this Act of which he is found guilty or to which he pleads guilty and in respect of which a conviction is not recorded shall, without affecting any other power of that court to award costs, have power to make such order as it thinks fit in respect of the costs and expenses of and incidental to the examination, seizure, detention, storage, analysis, destruction or other disposition of any article the subject of proceedings in that court. Food Act 1984 - SECT 50 Evidentiary provisions 50. Evidentiary provisions (1) For the purposes of this Act- (a) the onus of proof in any prosecution under this Act that any food was not sold, prepared for sale, conveyed or intended for sale for human consumption is on the person charged with the offence; (b) any food found in any premises or other place or vehicle used for the sale or the handling for sale of food shall be presumed, until the contrary is proved, to be intended for sale for human consumption; (c) any food found in any premises or other place or vehicle used for the preparing for sale of food shall be presumed, until the contrary is proved, to be intended to be used in the preparation for sale of food; (d) service of a copy of an analyst's certificate with a summons may be proved in any manner in which service of the summons may be proved and, where proof of the service of the summons is by affidavit, by stating in the affidavit that a copy of the analyst's certificate was served with the summons; (e) each of the parts into which a sample of any food obtained for analysis under this Act is divided shall be presumed, until the contrary is proved, to be of uniform composition with the other parts; (f) any person whose name appears on or is attached to a package shall, unless the contrary is proved, be deemed to have manufactured, packed or imported that food; (g) it shall not be a defence to allege that the person instituting the prosecution is not the person who caused any analysis to be made for the purposes of the prosecution; (h) where the prosecution or proceeding relates to any food purchased for analysis it shall not be a defence that the part of the food retained for future comparison has from spontaneous natural causes deteriorated, perished or undergone a material change in its constitution; and (i) if a defendant relies on any exception or provision contained in this Part the onus of proving the same shall be on him. (2) Where in respect of a prosecution for an offence against this Act a copy of an analyst's certificate- (a) if obtained on behalf of the informant, is served with the summons; or (b) if obtained on behalf of the defendant, is given to the informant at least seven days before the return day of the summons- that analyst's certificate shall, on its production in the proceedings, be sufficient evidence of the matters stated in the certificate and of the facts on which they are based unless an order is made under subsection (3) or unless notice is given under subsection (4). (3) Where an analyst's certificate, a copy of which has been served or given as mentioned in subsection (2), is produced or it is proposed to produce such a certificate, the court, where it is satisfied (whether upon an application made to it or by any other means) that in the circumstances of the case the analyst who issued the certificate should be called as a witness in the proceedings, may order that the analyst be called as a witness by the party who produces or proposes to produce the certificate. (4) Where in respect of a prosecution for an offence against this Act a copy of an analyst's certificate has been obtained on behalf of a party, another party may at least three days before the hearing give notice in writing to the first-mentioned party that he requires the analyst to be called as a witness. * * * * * * * * * * Food Act 1984 - SECT 50A Alternative verdicts for serious food offences 50A. Alternative verdicts for serious food offences (1) If, on the trial of a person charged with an offence against section 8 or 8A the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 11(1), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against section 11(1), and the person is liable to punishment accordingly. (2) If, on the trial of a person charged with an offence against section 9 or 9A, the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 11(2), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against section 11(2), and the person is liable to punishment accordingly. Food Act 1984 - SECT 51 Offences by bodies corporate 51. Offences by bodies corporate (1) Where a body corporate is guilty of an offence against this Act any person who is concerned or takes part in the management of that body corporate is also guilty of that offence and liable to the penalty for that offence. (2) It is a defence to a charge brought pursuant to subsection (1) against a person who is concerned or takes part in the management of a body corporate to prove that the offence was committed by the body corporate without his consent or knowledge and that he exercised due diligence to prevent the commission of the offence. Food Act 1984 - SECT 52 Offences by unincorporated bodies, partnerships etc. 52. Offences by unincorporated bodies, partnerships etc. Where this Act provides that a person, being a partnership or an unincorporated body or association, is guilty of an offence, that reference to the person shall- (a) in the case of a partnership-be read as a reference to each member of the partnership; and (b) in the case of an unincorporated body or association-be read as a reference to each member of the committee of management of the body or association. Food Act 1984 - SECT 52A Offences by employers 52A. Offences by employers (1) If an employee contravenes any provision of this Act or the regulations, the employer is taken to have contravened the same provision. (2) It is a defence in proceedings against an employer for such a contravention if it is established that the employer could not, by the exercise of due diligence, have prevented the contravention. (3) An employer may be proceeded against and convicted under a provision under this section whether or not the employee has been proceeded against or been convicted under that provision. Food Act 1984 - SECT 52B Liability of employees and agents 52B. Liability of employees and agents (1) Except as provided by subsection (2), it is no defence in proceedings for an offence under this Act that the defendant was, at the time of the commission of the offence, an employee or agent of another person. (2) In any proceedings for an offence under this Act, it is a defence for the defendant to prove that the defendant was under the personal supervision of the proprietor of the food business, or the owner or person in charge of the place or vehicle, in relation to which the offence was committed or of another person representing that proprietor, owner or person in charge. Food Act 1984 - SECT 53 General penalty 53. General penalty A person who is guilty of an offence against this Act for which a specific penalty is not prescribed by another provision of this Act is liable to a penalty not exceeding 10 penalty units. Food Act 1984 - SECT 53A Court may order costs and expenses 53A. Court may order costs and expenses Without affecting any other power of a court to award costs, a court that hears proceedings for an offence under this Act has power to make such order as it thinks fit in respect of the costs and expenses of and incidental to the examination, seizure, detention, storage, analysis (including further analysis), destruction or other disposition of any thing the subject of those proceedings. Food Act 1984 - SECT 53B Court may order corrective advertising 53B. Court may order corrective advertising A court by which a person (in this section referred to as the defendant) is found guilty of an offence under Part 2, may make one or both of the following orders- (a) an order requiring the defendant to disclose in a particular manner to the public, to a particular person or to a particular class of person information specified in the order, or information of a kind specified in the order, which the defendant possesses or to which the defendant has access; (b) an order requiring the defendant to publish, at his or her own expense, in a manner and at times specified in the order, advertisements the terms of which are specified in the order. --------- Food Act 1984 - PART IX PART IX MISCELLANEOUS PROVISIONS Food Act 1984 - SECT 54 Secrecy 54. Secrecy (1) Except as provided by subsection (2), an authorized officer shall not disclose information or publish a document or part of a document obtained by him in connexion with the administration of this Act unless the disclosure or publication is made- (a) with the consent of the person from whom the information or document was obtained; (b) in connexion with the administration of this Act; or (c) for the purposes of any proceedings under or arising out of this Act or a report of any such proceedings. Penalty: For a first offence 50 penalty units, and for a second or subsequent offence 100 penalty units. (2) An authorized officer who is so authorized by the Secretary or a council generally or in a particular case may communicate information that comes to his knowledge in the exercise of his powers or authorities or the discharge of his functions or duties under this Act to a council or the Secretary or to an officer or authority of a State or Territory of the Commonwealth of Australia administering a corresponding law or to such department or authority of the Commonwealth of Australia as the Secretary specifies. (3) Where a council authorizes an authorized officer pursuant to subsection (2) the council shall notify the Secretary of such authorization. (4) Notwithstanding subsection (1)(c), an authorized officer appearing as a witness in any proceedings under or arising out of this Act shall not be compelled to produce any reports made or received by him confidentially in his official capacity or containing confidential information. Food Act 1984 - SECT 54A Confidential food information may be given to the Secretary 54A. Confidential food information may be given to the Secretary Despite anything to the contrary in this Act or in any other Act, a person does not commit any offence in disclosing to the Secretary any information relating to food, the handling or sale of food or any illness, condition or disease that is, or may be, related to food. Food Act 1984 - SECT 54B Confidential food information may be given to the Food Safety Council 54B. Confidential food information may be given to the Food Safety Council Despite anything to the contrary in this Act or in any other Act, a person does not commit any offence in disclosing to the Food Safety Council any information relating to food, the handling or sale of food or any illness, condition or disease that is, or may be, related to food to enable the Council to carry out any of its duties or functions under this Act. Food Act 1984 - SECT 54C Confidential food information may be given to a council 54C. Confidential food information may be given to a council Despite anything to the contrary in this Act or in any other Act, a person does not commit any offence in disclosing to a council (or anyone acting on behalf of a council) any information relating to food, the handling or sale of food or any illness, condition or disease that is, or may be, related to food. Food Act 1984 - SECT 54D Confidential food information may be given to a public statutory body 54D. Confidential food information may be given to a public statutory body Despite anything to the contrary in this Act or in any other Act, a person does not commit any offence in disclosing to a public statutory body any information relating to food, the handling or sale of food or any illness, condition or disease that is, or may be, related to food, to enable the body to carry out any of its duties or functions under any Act or regulations, or to assist the Secretary or a council. Food Act 1984 - SECT 55 Mode of service of documents and certain samples 55. Mode of service of documents and certain samples (1) Where under this Act a notice, order or other document is required or authorized to be given to or served on a person, the notice, order or other document may be given or served- (a) by giving it to or serving it personally on the person or by leaving it at or sending it by post to the person at his usual or last known place of abode or business; (b) where it is addressed to the proprietor of any food premises, by leaving it with some adult person on the premises or, if there is no such person on the premises, by fixing it or a copy of it on some conspicuous part of the premises; (c) where it is addressed to the Secretary, by giving it to, serving it personally on or sending it by registered post to the Secretary; (d) where it is addressed to a council, by giving it to, serving it personally on or sending it by registered post to the clerk of the municipality concerned. (2) Where under or for the purposes of this Act a notice or a part of a sample of any food is required or authorized to be given or delivered to a person and the food in question was sold through a food vending machine, the notice or part of a sample shall be sufficiently given or delivered for the purposes of this Act if the notice or part is given or delivered personally to or sent by registered post to the person in whose name the machine is registered or, if the machine is not registered or is not required to be registered, to the proprietor of the premises on which the machine is located. Food Act 1984 - SECT 56 Protection against liability 56. Protection against liability (1) This section applies to authorized officers (other than the Secretary) and employees of councils. (2) A person to whom this section applies is not personally liable for anything done or omitted to be done in good faith- (a) in the exercise of a power or the discharge of a duty under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act. (3) Any liability resulting from an act or omission that would but for subsection (2) attach to a person to whom this section applies attaches instead- (a) in the case of an authorized officer who is not an employee of a council, to the Secretary; and (b) in the case of an employee of a council, to the council. Food Act 1984 - SECT 57 Payment of penalties 57. Payment of penalties Where an offence against this Act has been prosecuted by the council, all penalties recovered in relation to the offence shall be paid into the municipal fund of that council. Food Act 1984 - SECT 58 Director of Liquor Licensing to be notified of certain matters 58. Director of Liquor Licensing to be notified of certain matters (1) If the Secretary or the registration authority makes an order under section 19 in respect of premises in respect of which a licence or permit under the Liquor Control Reform Act 1998 is in force, the Secretary or the registration authority must notify the Director of Liquor Licensing of the making of the order. (2) If a person who is the holder of a licence or permit referred to in subsection (1) is charged with an offence against this Act of which he or she is found guilty or to which he or she pleads guilty and in respect of which a conviction is not recorded, the Secretary or the registration authority which caused proceedings to be instituted for the offence shall notify the Director of Liquor Licensing of the result of the proceedings. Food Act 1984 - SECT 58A Delegation to council officers 58A. Delegation to council officers (1) A council may delegate to one or more of its officers its powers or discretions under Parts III, IIIB and VI and section 46(5). (2) The refusal by an officer to grant, renew or transfer the registration of any food premises is of no effect until it is ratified by the council. Food Act 1984 - SECT 59 Part XX of Health Act 1958 incorporated with this Act 59. Part XX of Health Act 1958 incorporated with this Act The provisions of Part XX of the Health Act 1958 (except sections 387(1)(b), 389-391, 400-408, 421(2), 422, 423, 425 and 444) are, so far as not inconsistent with this Act and with such modifications and substitutions as are necessary, hereby incorporated with and shall be read and construed as one with this Act. --------- Food Act 1984 - PART X PART X FOOD SAFETY COUNCIL Food Act 1984 - SECT 60 Establishment of the Council 60. Establishment of the Council There is established a Food Safety Council. Food Act 1984 - SECT 60A Functions 60A. Functions The functions of the Council are- (a) to advise the Minister on any matter referred to it by the Minister including, without limiting the scope of this paragraph- (i) the Food Standards Code; and (ii) food safety and food standards; and (iii) the operation of this Act; and (iv) regulations and proposed regulations under this Act; and (v) any matter concerning food that relates to public health; and (b) to advise the Secretary on any matter referred to it by the Secretary; and (c) to supply information concerning food, food related matters and matters of public health that may involve food to the Minister and the Secretary. Food Act 1984 - SECT 60B Powers 60B. Powers The Council may do all things that are necessary or convenient to enable it to perform its functions. Food Act 1984 - SECT 60C Members of the Council 60C. Members of the Council (1) The Council consists of a Chairperson and as many people as are necessary, in the opinion of the Minister, to enable the Council to carry out its functions. (2) All appointments to the Council are to be made by the Minister. (3) The Minister may only appoint a person to be a member of the Council if, in the opinion of the Minister, the person has skills, knowledge or experience that will help the Council to carry out its functions. (4) The Minister may appoint a person to be the Deputy Chairperson of the Council. (5) An act or decision of the Council is not invalid by reason only of defects in the appointment of members of the Council. Food Act 1984 - SECT 60D Conditions of office of members 60D. Conditions of office of members (1) A member of the Council- (a) holds office for the period specified in her or his instrument of appointment, which must be a period of not more than 3 years; (b) holds office on the terms and conditions determined by the Minister; and (c) may be re-appointed; and (d) may resign from office by delivering a signed letter of resignation to the Minister; and (e) may be removed from office at any time by the Minister. (2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member. Food Act 1984 - SECT 60E Procedure at meetings 60E. Procedure at meetings (1) The Council may not provide advice to the Minister on any matter that is put to a vote of the Council unless at least three quarters of the members of the Council are present when the matter is put to the vote. (2) Any other matter cannot be decided at a meeting of the Council unless more than half of its members are present when the matter is to be decided. (3) The decision on a question of the majority of the members present and voting on the question is the decision of the Council. (4) If there is a Deputy Chairperson, he or she is to preside at meetings of the Council at which he or she is present and at which the Chairperson is not present. (5) If neither the Chairperson nor the Deputy Chairperson (if any) are present at a meeting, the meeting is to be chaired by a member chosen by the members present at the meeting. (6) The person presiding at a meeting has both a deliberative and a casting vote. (7) In all other respects the Council may regulate its own procedure. Food Act 1984 - SECT 60F Report on operations 60F. Report on operations (1) The Council must submit a report on its operation to the Minister on or before 31 October in each year. (2) The Minister must cause a copy of the report to be laid before each House of Parliament within 7 sitting days of that House after the report is submitted to the Minister. Food Act 1984 - SECT 60G Use of assistants 60G. Use of assistants (1) With the approval of the Minister, the Council may invite a person to participate in meetings of the Council for the purpose of assisting the Council in its deliberations on particular matters. (2) A person invited to do this is entitled to receive the fees and allowances (if any) determined by the Minister (unless the person is an employee in the public service). Food Act 1984 - SECT 60H Members must not disclose confidential information 60H. Members must not disclose confidential information (1) A person who is, or has been, a member of the Council must not disclose any information that is obtained by him or her as a member of the Council. Penalty: 5 penalty units. (2) Also, the person must not use any such information to obtain directly or indirectly any pecuniary advantage for himself or herself or for any other person. Penalty: 5 penalty units. (3) However, the person may disclose or use such information if- (a) in the case of information that enables a person to be identified and that was provided by another person, the disclosure of the information is made with the consent of the Minister and of the person who is to be, or may be, identified; or (b) in the case of all other information, the disclosure is made with the consent of the Minister and of the person from whom the information was obtained; or (c) the disclosure or use is made in the performance of a duty under, or in connection with, this Act or any Act of the Commonwealth or of a State or Territory; or (d) the information is in the public domain at the time it is disclosed or used. (4) This section also applies to any person who obtained any information as a result of participating (or being asked to participate) in a meeting of the Council under section 60G as if the person was a member of the Council. (5) Subsection (3) is not intended to interfere with any rights another person may have with regard to the disclosure or use of the information. (6) Despite anything to the contrary in this or any other Act, a person to whom this section applies is neither competent nor compellable in any proceedings to answer any question, or to produce any document, relating to any information referred to in this section without the approval of the Minister. (7) Despite anything to the contrary in this section, a person may disclose the identity of approved food safety auditors. Food Act 1984 - SECT 60I Council the successor of the Food Standards Committee 60I. Council the successor of the Food Standards Committee (1) The Council is the successor in law to the Food Standards Committee. (2) Any reference to the Food Standards Committee in any Act, subordinate instrument, agreement or other document as far as it relates to any period after the commencement of section 13 of the Food (Amendment) Act 1997 is to be treated as a reference to the Council, unless the contrary intention appears. (3) The members of the Food Standards Committee cease to hold office. * * * * * --------- Food Act 1984 - PART XI PART XI REGULATIONS Food Act 1984 - SECT 63 Regulations 63. Regulations (1) The Governor in Council may make regulations for or with respect to any matter or thing that is required or permitted to be prescribed for the purposes of this Act or is necessary to be prescribed for carrying this Act into effect and, without limiting the generality of the foregoing, for or with respect to- (a) prescribing standards for the nature, substance, composition, strength, weight, quantity, purity or quality of food generally or food of a specified class or description or of any ingredient thereof or for the nature or proportion of any substance that may be mixed with or used in the preparation or preservation thereof; (b) prohibiting the addition to, mixture with or use in the preparation of or presence in food generally or food of a specified class or description of a specified substance or a specified substance exceeding a prescribed quantity or proportion; (c) prescribing the quantity or proportion of a specified substance that is to be the quantity or proportion or the maximum or minimum or maximum and minimum quantities and proportions that shall or may be added to, mixed with or used in the preparation of or present in food generally or food of a specified class or description; (d) prohibiting the sale or the handling for sale of food generally or food of a specified class or description the use of any equipment containing a specified substance or a specified substance exceeding a prescribed quantity or proportion; (e) prescribing or prohibiting specified modes of preparation of food generally or food of a specified class or description; (f) prescribing the temperature at which or range of temperatures within which food generally or food of a specified class or description that is prepared, stored, displayed, exposed or conveyed for sale shall be kept; (g) prohibiting the sale of food generally or food of a specified class or description containing any micro-organism or a micro-organism of a specified kind or a micro-organism of a specified kind in excess of a specified number in a specified quantity; (h) providing for and prescribing all matters and things for or with respect to securing the wholesomeness and purity of food and the conditions and practices in connexion with the sale or the handling for sale of any food and, without limiting the generality of the foregoing, for or with respect to- (i) the cleanliness of premises or other places or vehicles in, at, on or from which any food is sold or handled for sale and fittings, fixtures or equipment in, at or on such premises or other places or vehicles; (ii) the provision and proper use of satisfactory facilities for the protection of food in, at or on premises or other places or vehicles in, at, on or from which any food is sold or handled for sale; (iii) the design and construction of premises or other places, vehicles, equipment, fittings or fixtures used for or in connexion with the sale or the handling for sale of any food; (iv) the prohibition or regulation of the use of specified materials or materials of a specified class in the manufacture of equipment, fittings or fixtures; (v) the clothing to be worn by persons attending equipment or in, at or on premises or other places or vehicles in, at, on or from which any food is sold or handled for sale; (vi) requiring the proprietor of food premises, or his nominee approved by the Secretary, or any persons employed or engaged by that proprietor to handle unpackaged food at those premises, to attend such courses of instruction in the handling of food as are prescribed; (vii) the standards of cleanliness and hygiene to be maintained; (viii) preventing or minimizing the spread of disease; (ix) the provision and use of equipment, fittings or fixtures; (x) prescribing standards for equipment, fittings or fixtures and requiring equipment, fittings or fixtures of specified kinds to be approved by the Secretary and specifying the procedure for obtaining such approval; (xi) the inspection and testing of equipment, fittings or fixtures and the inspection of premises or other places or vehicles in, at, on or from which any food is sold or handled for sale; (xii) the provision and maintenance of an adequate water supply and drainage, sewerage, lighting and ventilation facilities in premises or other places or vehicles in, at, on or from which any food is sold or handled for sale; (i) providing for and prescribing all matters and things for or with respect to food vending machines and, without limiting the generality of the foregoing, for or with respect to- (i) the location, surroundings and cleanliness thereof; (ii) the mode of construction thereof with particular reference to the provision of means for maintaining cleanliness and operating temperatures; (iii) maintenance and servicing thereof and the keeping of records in relation thereto; (iv) marking on or affixing thereto operating instructions, evidence of the currency of registration thereof and the name and address or other particulars of any person or body who or which receives or shares in the profits or proceeds of the sale of any food therefrom; (v) requiring notices or other writings containing specified words, statements, expressions or specified pictorial representations or designs to be affixed thereto or prohibiting the use in such notices or other writings of specified words, statements or expressions or words, statements or expressions having the same or a similar effect or representations or designs of a similar or other specified nature; (vi) the regulation and control of the temperature of food contained therein; (vii) the preventing of the adulteration of food contained therein; (viii) the inspection thereof and of food contained therein; (ix) the prohibition of the operation thereof and rendering them inoperable whilst in a faulty condition; (x) the prohibition or regulation of the sale or supply therefrom of goods other than food or food of a specified class or description with food of another class or description; (xi) the prohibition or regulation of the use thereof for dispensing food other than food that they are designed to dispense; (xii) generally, the control and use thereof; (j) regulating and controlling and where necessary prohibiting and restricting advertisements relating to food generally or food of a specified class or description; requiring any such advertisements to contain specified words, statements, expressions, pictorial representations or designs or prohibiting the use therein of specified words, statements or expressions or words, statements or expressions having the same or a similar effect or pictorial representations or designs of a similar or other specified nature or of statements, claims, designs, devices or abbreviations of a specified nature; (k) prescribing the mode of labelling food generally or food of a specified class or description or packages of food generally or of food of a specified class or description; the forms or kinds of labels; the matter to be contained in labels including specified words, statements, expressions, pictorial representations or designs of a specified kind; the size, style or colour of any such matter or the nature or colour of the background on which it appears; requiring specified labels to be written on or attached to any food or to packages of any food; prohibiting generally as to the matter to be contained in labels and, without limiting the generality of the foregoing, prohibiting the use on labels of specified words, statements or expressions or of words, statements or expressions having the same or a similar effect or of pictorial representations or designs of a similar or other specified nature; requiring that where food generally or food of a specified class or description that is not in a package is displayed for sale it shall be displayed in conjunction with a label bearing such matter as is prescribed; exempting any food, or any package of food, of any specified class or description from any provision of this Act relating to labelling; (l) requiring and providing for the seizure, recall, destruction, denaturation or disposal of food that has become unsafe, unsuitable, damaged, deteriorated or perished to such degree as is specified or of food of a specified class or description and specifying the circumstances in which such food shall be destroyed or denatured; (m) prescribing modes of making packages or packing materials for any food so as to avoid contact with injurious substances; prohibiting the use of specified substances or materials in making packages or packing materials for any food; prescribing the minimum size of and the packing required for an article not being food that will be enclosed in a package; requiring that specified food be packed in a specified manner and prohibiting specified modes of packing food; (n) requiring notices or other writings containing specified words, statements or expressions or words, statements or expressions having the same or a similar effect or specified pictorial representations or designs to be affixed to premises or other places or vehicles used in selling or handling for sale of food or food of a specified class or description; prohibiting the use in such notices or other writings of specified words, statements or expressions or words, statements or expressions having the same or a similar effect or of pictorial representations or designs of a similar or other specified nature; (o) prescribing the mode of storing or conveying for sale of food generally or food of a specified class or description; (p) providing for premises or other places, vehicles, equipment, methods, processes, packages, seals or closures and sources of water used in connexion with the sale or the handling for sale of any food to be approved by the Secretary and making requirements to that effect; (q) prescribing methods of analysis to be observed in analyses under or for the purposes of this Act; (r) prescribing methods for obtaining samples for the purposes of this Act and dealing with samples so obtained; the rates of the payments to be made for samples obtained for the purposes of this Act; the number of samples to be so obtained in specified cases; (s) prescribing the books to be kept by the proprietor of any food premises or equipment; (t) requiring specified laboratory and testing facilities to be provided in, at or on premises or other places or vehicles where food is prepared for sale and prescribing procedures and facilities to be used for the examination of any food and notification to specified persons of the results of any such examination; (u) prescribing the qualifications of authorized officers and their powers, authorities, functions and duties; (v) providing for the licensing by the Secretary of persons for specified purposes; (w) providing for the registration by the Secretary of premises or other places, vehicles or equipment for specified purposes and the inspection of premises or other places, vehicles or equipment in respect of which registration has been granted or is sought; (x) providing for applications for and the grant, issue, revocation, cancellation, suspension or surrender of licences, registrations, permits, approvals, certificates and authorities under this Act and transfers, renewals and duplicates thereof; prescribing the terms and conditions on which licences, registrations, permits, approvals, certificates and authorities may be granted, issued, revoked, cancelled, suspended, surrendered, transferred or renewed and the records to be kept in relation thereto; prescribing fees for registrations and transfers and renewals thereof; prescribing proportionate fees where registrations are granted during the currency of a year; fixing days for lodging applications for renewals of registration; prescribing additional fees for renewals of registration in cases where late applications for renewal are lodged; (y) providing for the giving, serving and enforcement of notices for or with respect to the rectification of acts or omissions that constitute a contravention of or failure to comply with this Act; and (z) prescribing- (i) forms to be used for the purposes of this Act and the particular purposes for which those forms shall respectively be used; and (ii) fees and charges payable or to be paid under or for the purposes of this Act and the fixing thereof; the matters and things in respect of which they are payable or to be paid; the methods of collection thereof; the manner, time and place of payment thereof; the persons by whom and to whom they are payable and all matters with respect to the recovery thereof. (2) Any regulation made under this Act may- (a) be made so as to be limited in respect of time, place or circumstances having regard to the conditions existing in any area in which the regulation is to have effect; (b) leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by any government department, council or public authority or by any officer or member of staff of such department, council or authority; (c) confer powers or impose duties in connexion with the regulations on any government department, council or public authority or on any officer or member of staff of such department, council or authority or on owners or occupiers of premises or other places or on owners or operators of vehicles or on any persons whomsoever; (d) incorporate or adopt by reference the provisions of any document (including any code, standard, rule, specification or method) formulated, issued, prescribed or published by any authority or body whether- (i) wholly or partially or as amended by the regulation; and (ii) as formulated, issued, prescribed or published at the time the regulation is made or at any time before the regulation is made; and (e) impose a penalty of not more than 10 penalty units for any contravention of or failure to comply with the regulation. * * * * * (4) Where any form is prescribed by a regulation made under this Act, any form in or to the like effect of the prescribed form shall be sufficient in law. (5) The Secretary may cause to be published codes of practice in connexion with matters and things that may be made the subject of regulations for the purpose of giving advice and guidance to persons responsible for compliance with those regulations and may alter, amend, modify or vary those codes. (6) Except- (a) in a case of emergency or sudden necessity (of the existence of which emergency or necessity the Secretary shall be the sole judge); or (b) in the case of regulations to be made under paragraph (a), (b), (c), (d), (e), (f), (g), (k), (m) or (q) of subsection (1)- where any proposed regulations affect or are likely to affect any municipality copies thereof shall be sent to every such municipality at least six weeks before the making of the regulations. (7) Regulations made under this Act shall be subject to disallowance by Parliament. Food Act 1984 - SECT 63A Prescribed food standards 63A. Prescribed food standards (1) In this section- Authority has the same meaning as in the Commonwealth Act; Commonwealth Act means the National Food Authority Act 1991 of the Commonwealth as amended and in force for the time being and includes an Act passed in substitution for that Act; Food Standards Code has the same meaning as in the Commonwealth Act; gazetted means published in the Commonwealth of Australia Gazette. (2) For the purposes of this Act a prescribed food standard is- (a) a standard gazetted by the Authority under the Commonwealth Act; or (b) a standard contained in the Food Standards Code. (3) A prescribed food standard- (a) has effect as amended, varied or partly superseded by a standard or variation of a standard gazetted under the Commonwealth Act; and (b) ceases to have effect if revoked or wholly superseded by a standard or variation of a standard gazetted under the Commonwealth Act. (4) A standard or variation of a standard gazetted under the Commonwealth Act has effect- (a) on the date specified for that purpose in the gazette; or (b) if no date is so specified, on the date of gazettal. (5) An amendment of the standards contained in the Food Standards Code gazetted before the commencement of the Food (Amendment) Act 1991 and not incorporated or adopted by reference by the Food Standards Regulations 1987 before that commencement has effect in Victoria from that commencement or the later effective date specified in the gazette. Food Act 1984 - SECT 63B Limitation on power to make local laws 63B. Limitation on power to make local laws (1) A council must not make a local law under the Local Government Act 1989 for or with respect to any matter or thing for or with respect to which- (a) regulations made under this Act are in force; or (b) regulations could be made under this Act; or (c) a prescribed food standard has effect. (2) A local law (whether made before or after the commencement of the Food (Amendment) Act 1995) is of no effect to the extent that it makes provision for or with respect to any matter or thing referred to in subsection (1). --------- Food Act 1984 - PART XII PART XII TRANSITIONAL PROVISIONS Food Act 1984 - SECT 63C Existing orders to continue 63C. Existing orders to continue An order made under section 44 or 44A that was in force immediately before the commencement of section 27 of the Food (Amendment) Act 2001 continues to have effect as if it had been made under Part VII as in force after that commencement until it is revoked. Food Act 1984 - SECT 63D Extended application of Division 3 of Part IIIA 63D. Extended application of Division 3 of Part IIIA (1) The proprietor of a food premises to which this section applies may elect to have Division 3 of Part IIIB apply to the premises rather than Division 3A of that Part. (2) This section applies to any food premises- (a) that is of a class declared by the Secretary, by notice published in the Government Gazette, to be a class of premises to which this section applies; and (b) in respect of which the registration authority had, before 1 January 2002, satisfied itself that the food safety program was adequate. (3) An election under subsection (1)- (a) must be made by written notice; and (b) must be given to the registration authority before 1 January 2002. (4) A notice of election made in accordance with this section is to be given effect according to its tenor, regardless of anything to the contrary in Part IIIB. (5) The proprietor of a premises may, by written notice given to the registration authority, withdraw an election at any time, but Division 3 of Part IIIB will continue to apply to the premises until the registration of the premises is next renewed or transferred, whichever occurs first. (6) An election under this section ceases to have any effect on 1 January 2004. (7) Despite subsection (6), Division 3 of Part IIIB continues to apply to a premises in respect of which an election under this section was in effect on 1 January 2004 until the registration of the premises is next renewed or transferred, whichever occurs first. --------- * * * * * _________________ * * * * * _________________ * * * * * --------------- ENDNOTES 1. General Information The Food Act 1984 was assented to on 15 May 1984 and came into operation (except sections 31(b), 50(5)) on 1 January 1986: Government Gazette 6 November 1986 page 4213. Sections 31(b) and 50(5) were never proclaimed, repealed by No. 11/1995 section 3(2). 2. Table of Amendments This Version incorporates amendments made to the Food Act 1984 by Acts and subordinate instruments. ------------------------------------------------------------- Health (Amendment) Act 1985, No. 10262/1985 Assent Date: 10.12.85 Commencement Date: S. 4(Sch.) on 1.3.86: Government Gazette 26.2.86 p. 451 Current State: This information relates only to the provision/s amending the Food Act 1984 Courts Amendment Act 1986, No. 16/1986 Assent Date: 22.4.86 Commencement Date: S. 30(Sch.) on 1.7.86: Government Gazette 25.6.86 p. 2180 Current State: This information relates only to the provision/s amending the Food Act 1984 Food (Amendment) Act 1986, No. 95/1986 Assent Date: 16.12.86 Commencement Date: 16.12.86 Current State: All of Act in operation Liquor Control Act 1987, No. 97/1987 Assent Date: 1.12.87 Commencement Date: S. 179 on 3.5.88: Government Gazette 27.4.88 p. 1044 Current State: This information relates only to the provision/s amending the Food Act 1984 Local Government (Consequential Provisions) Act 1989, No. 12/1989 (as amended by No. 13/1990) Assent Date: 9.5.89 Commencement Date: S. 4(1)(Sch. 2 items 47.2, 47.7-47.9, 47.11) on 1.11.89: Government Gazette 1.11.89 p. 2798; Sch. 2 items 47.1, 47.3-47.6 on 3.6.92: Government Gazette 3.6.92 p. 1306; Sch. 2 item 47.10 on 1.10.92: Government Gazette 23.9.92 p. 2789 Current State: This information relates only to the provision/s amending the Food Act 1984 Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989 (as amended by No. 34/1990) Assent Date: 14.6.89 Commencement Date: S. 3(Sch. items 79.1-79.11) on 1.9.90: Government Gazette 25.7.90 p. 2217 Current State: This information relates only to the provision/s amending the Food Act 1984 Food (Valuation) Act 1990, No. 26/1990 Assent Date: 5.6.90 Commencement Date: 5.6.90 Current State: All of Act in operation Interpretation of Legislation (Amendment) Act 1991, No. 6/1991 Assent Date: 16.4.91 Commencement Date: 16.4.91 Current State: All of Act in operation Food (Amendment) Act 1991, No. 36/1991 Assent Date: 18.6.91 Commencement Date: 19.8.91-same day as the National Food Authority Act 1991 of the Commonwealth-see Commonwealth Special Gazette (No. 219) of 8.8.91 Current State: All of Act in operation Dairy Industry Act 1992, No. 88/1992 Endnotes Assent Date: 26.11.92 Commencement Date: 24.12.92: Special Gazette (No. 70) 24.12.92 p. 1 Current State: All of Act in operation Meat Industry Act 1993, No. 40/1993 Assent Date: 1.6.93 Commencement Date: S. 82, Sch. 2 item 4.1 on 30.6.93: Government Gazette 24.6.93 p. 1596 Current State: This information relates only to the provision/s amending the Food Act 1984 Health and Community Services (General Amendment) Act 1993, No. 42/1993 Assent Date: 1.6.93 Commencement Date: S. 64 on 1.10.93: Government Gazette 16.9.93 p. 2548 Current State: This information relates only to the provision/s amending the Food Act 1984 Local Government (Miscellaneous Amendments) Act 1993, No. 125/1993 Assent Date: 7.12.93 Commencement Date: S. 20(5) on 7.12.93: s. 2(4) Current State: This information relates only to the provision/s amending the Food Act 1984 Food (Amendment) Act 1994, No. 13/1994 Assent Date: 3.5.94 Commencement Date: 3.5.94 Current State: All of Act in operation Medical Practice Act 1994, No. 23/1994 Assent Date: 17.5.94 Commencement Date: S. 118(Sch. 1 item 21) on 1.7.94: Government Gazette 23.6.94 p. 1672 Current State: This information relates only to the provision/s amending the Food Act 1984 Therapeutic Goods (Victoria) Act 1994, No. 79/1994 Assent Date: 22.11.94 Commencement Date: S. 74 on 22.5.95: s. 2(3) Current State: This information relates only to the provision/s amending the Food Act 1984 Statute Law Revision Act 1995, No. 11/1995 Assent Date: 26.4.95 Commencement Date: 26.4.95: s. 2 Current State: All of Act in operation Food (Amendment) Act 1995, No. 20/1995 Assent Date: 16.5.95 Commencement Date: 16.5.95 Current State: All of Act in operation Legal Practice Act 1996, No. 35/1996 Endnotes Assent Date: 6.11.96 Commencement Date: S. 453(Sch. 1 item 33) on 1.1.97: s. 2(3) Current State: This information relates only to the provision/s amending the Food Act 1984 Commonwealth Powers (Industrial Relations) Act 1996, No. 59/1996 Assent Date: 12.12.96 Commencement Date: S. 10(Sch. 2 item 7) on 1.1.97: Special Gazette (No. 146) 23.12.96 p. 15 Current State: This information relates only to the provision/s amending the Food Act 1984 Food (Amendment) Act 1997, No. 98/1997 Assent Date: 16.12.97 Commencement Date: Ss 3-8, 11-18 on 16.12.97: s. 2(1); ss 9, 10 on 8.2.98: Government Gazette 5.2.98 p. 282; ss 32, 33 on 1.1.99: s. 2(3) Current State: This information relates only to the provision/s amending the Food Act 1984 Water Acts (Further Amendment) Act 1997, No. 110/1997 Assent Date: 23.12.97 Commencement Date: S. 41 on 1.1.98: Government Gazette 24.12.97 p. 3783 Current State: This information relates only to the provision/s amending the Food Act 1984 Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998 Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) Current State: This information relates only to the provision/s amending the Food Act 1984 Statute Law Revision Act 2000, No. 74/2000 Assent Date: 21.11.00 Commencement Date: S. 3(Sch. 1 item 51) on 22.11.00: s. 2(1) Current State: This information relates only to the provision/s amending the Food Act 1984 Food (Amendment) Act 2001, No. 14/2001 (as amended by 44/2001) Assent Date: 22.5.01 Commencement Date: Ss 1, 2 on 23.5.01: s. 2(1); rest of Act on 1.1.02: s. 2(3) Current State: All of Act in operation Corporations (Consequential Amendments) Act 2001, No. 44/2001 Assent Date: 27.6.01 Commencement Date: S. 3(Sch. item 47) on 15.7.01: s. 2 Current State: This information relates only to the provision/s amending the Food Act 1984 Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002, No. 49/2002 Endnotes Assent Date: 22.10.02 Commencement Date: S. 13 on 23.10.02: s. 2(1) Current State: This information relates only to the provision/s amending the Food Act 1984 Seafood Safety Act 2003, No. 24/2003 Assent Date: 13.5.03 Commencement Date: S. 91 on 1.7.03: Government Gazette 26.6.03 p. 1548; s. 92 on 1.1.04: Government Gazette 13.11.03 p. 2840 Current State: This information relates only to the provision/s amending the Food Act 1984 Safe Drinking Water Act 2003, No. 46/2003 Assent Date: 11.6.03 Commencement Date: S. 58 on 1.7.04: s. 2 Current State: This information relates only to the provision/s amending the Food Act 1984 Public Administration Act 2004, No. 108/2004 Assent Date: 21.12.04 Commencement Date: S. 117(1)(Sch. 3 item 81) on 5.4.05: Government Gazette 31.3.05 p. 602 Current State: This information relates only to the provision/s amending the Food Act 1984 Statute Law Revision Act 2005, No. 10/2005 Assent Date: 27.4.05 Commencement Date: S. 3(Sch. 1 item 8) on 28.4.05: s. 2 Current State: This information relates only to the provision/s amending the Food Act 1984 Health Professions Registration Act 2005, No. 97/2005 Assent Date: 7.12.05 Commencement Date: S. 182(Sch. 4 item 21) on 1.7.07: s. 2(3) Current State: This information relates only to the provision/s amending the Food Act 1984 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006 Assent Date: 10.10.06 Commencement Date: S. 26(Sch. item 42) on 11.10.06: s. 2(1) Current State: This information relates only to the provision/s amending the Food Act 1984 Public Health and Wellbeing Act 2008, No. 46/2008 Assent Date: 2.9.08 Commencement Date: Ss 254, 255 on 1.1.09: Special Gazette (No. 365) 12.12.08 p. 1 Current State: This information relates only to the provision/s amending the Food Act 1984 ------------------------------------------------------------- 3. Explanatory Details ?? ?? Part I-Preliminary Food Act 1984 No. 10082 of 1984