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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Food Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Objects of Act 2
4. Application of Act to primary food production 2
5. Application of Act to water suppliers 3
6. Application of Act to prescribed community
activities 3
7. Act to bind Crown 4
Part 2 -- Interpretation
8. Terms used in this Act 5
9. Meaning of "food" 9
10. Meaning of "food business" 10
11. Meaning of "primary food production" 10
12. Meaning of "unsafe" in relation to food 11
13. Meaning of "unsuitable" in relation to food 12
Part 3 -- Offences relating to food
Division 1 -- Serious offences relating to food
14. Handling of food in unsafe manner 14
15. Sale of unsafe food 14
16. False description of food 15
Division 2 -- Other offences relating to food
17. Handling and sale of unsafe food 16
18. Handling and sale of unsuitable food 16
19. Misleading conduct relating to sale of food 17
20. Sale of food not complying with purchaser's
demand 17
110--3 page i
Food Bill 2005
Contents
21. Sale of unfit equipment or packaging or labelling
material 18
22. Compliance with Food Standards Code 18
23. False description of food 19
24. Application of provisions outside Western
Australia 20
Division 3 -- Defences
25. Defence relating to publication of advertisements 20
26. Defence in respect of food for export 21
27. Defence of due diligence 21
28. Defence in respect of handling food 23
29. Defence in respect of sale of unfit equipment or
packaging or labelling material 23
Division 4 -- Alternative verdicts
30. Alternative verdicts for serious food offences 24
Part 4 -- Emergency powers
31. Making of emergency order 25
32. Nature of emergency order 25
33. Special provisions relating to recall orders 26
34. Manner of making orders 27
35. Compensation 28
36. Failure to comply with emergency order 29
37. Limitation on stay of operation of emergency
orders 29
Part 5 -- Powers of entry, inspection
and seizure
Division 1 -- Entry, inspection and seizure
38. Powers of authorised officers 30
39. Self-incrimination not an excuse 32
40. Power of seizure 32
41. Application for warrant to enter premises 33
42. Issue of warrant 34
43. Duration of warrant 35
44. Execution of warrant 35
45. Failure to comply with requirements of authorised
officers 35
46. Interfering with seized items 36
page ii
Food Bill 2005
Contents
47. False information 36
48. Obstructing, impersonating or threatening
authorised officers 36
Division 2 -- Items seized by authorised officers
49. Seized items 37
50. Notification of seizure 37
51. Destruction of filthy, decomposed or putrid matter 38
52. Return of seized item 38
53. Forfeiture of item 38
54. Cost of destruction or disposal of forfeited item 39
55. Return of forfeited item 39
56. Compensation to be paid in certain circumstances 40
57. Application for order disallowing seizure 41
58. Enforcement agency entitled to answer application 41
59. Order disallowing seizure of item 41
60. Ancillary orders 42
61. Adjournment pending hearing of other proceedings 42
Part 6 -- Improvement notices and
prohibition orders
Division 1 -- Improvement notices
62. Grounds for serving improvement notice 43
63. Improvement notice may require certain action to
be taken 44
64. Compliance with improvement notice 45
Division 2 -- Prohibition orders
65. Prohibition order 45
66. Certificate of clearance to be given in certain
circumstances 46
67. Request for re-inspection 47
68. Contravention of prohibition order 48
69. Review of decision to refuse certificate of
clearance 48
70. Compensation 48
Division 3 -- Other matters
71. Scope of notices and orders 49
72. Notices and orders to contain certain information 50
page iii
Food Bill 2005
Contents
Part 7 -- Taking and analysis of
samples
Division 1 -- Taking of samples
73. Application of Division 51
74. Proprietor to be informed 51
75. Payment for sample 51
76. Samples from vending machines 52
77. Packaged food 52
78. Procedures to be followed 52
79. Samples to be submitted for analysis 53
Division 2 -- Procedures relating to analyses
80. Compliance with Food Standards Code 54
81. Certificate of analysis 54
Division 3 -- Approval of laboratories
82. Approval of laboratories 55
83. Term of approval 55
84. Person in charge of approved laboratory to give
notice of certain interests 56
85. Variation of conditions or suspension or
cancellation of approval of laboratory 56
86. Review of decisions relating to approval 57
87. List of approved laboratories to be maintained 58
Division 4 -- Approval of analysts
88. Approval of persons to carry out analyses 58
89. Term of approval 59
90. Approved analyst to give notice of certain interests 59
91. Variation of conditions or suspension or
cancellation of approval of analyst 59
92. Review of decisions relating to approval 60
93. List of approved analysts to be maintained 61
Part 8 -- Auditing
Division 1 -- Approval of food safety auditors
94. Approval of food safety auditors 62
95. Term of approval 63
96. Food safety auditor to give notice of certain
interests 63
page iv
Food Bill 2005
Contents
97. Variation of conditions or suspension or
cancellation of approval of auditor 63
98. Review of decisions relating to approvals 64
Division 2 -- Auditing and reporting
requirements
99. Food safety programs and auditing requirements 65
100. Priority classification system and frequency of
auditing 66
101. Duties of food safety auditors 67
102. Reporting requirements 67
103. Redetermination of frequency of auditing 69
Division 3 -- Other matters relating to food
safety auditors
104. Certificates of authority of food safety auditors 70
105. List of food safety auditors to be maintained 70
106. Obstructing, impersonating or threatening food
safety auditors 71
Part 9 -- Registration of food
businesses
107. Notification of conduct of food businesses 72
108. Exemption in relation to notification of
information 72
109. Conduct of unregistered food businesses 73
110. Registration of food businesses 73
111. Term of approval 74
112. Variation of conditions or cancellation of
registration of food businesses 75
113. Notification of certain changes to registered food
businesses 76
114. Review of decisions relating to registration 77
115. Register of food businesses to be maintained 78
Part 10 -- Administration
Division 1 -- CEO
116. Functions of the CEO 79
117. CEO may delegate 79
Division 2 -- Functions of enforcement agencies
118. Functions of enforcement agencies and delegation 80
page v
Food Bill 2005
Contents
119. Conditions on performance of functions by
enforcement agencies 81
120. Performance of functions by enforcement agencies
and authorised officers 82
121. Reports by and about enforcement agencies 82
Division 3 -- Appointment of authorised
officers
122. Appointment of authorised officers 83
123. Certificates of authority 83
Division 4 -- Advisory committees
124. Establishment and functions of advisory
committees 84
Part 11 -- Procedural and
evidentiary provisions
125. Institution of proceedings 85
126. Infringement notices 85
127. Offences by employees -- liability of employer 87
128. Offences by bodies corporate -- liability of
directors and others 87
129. Liability of employees and agents 88
130. No defence to allege deterioration of sample 89
131. Onus to prove certain matters on accused person 89
132. Presumption 89
133. Certificate evidence and evidence of analysts 90
134. Documentary evidence of certain matters 91
135. Power of court to order further analysis 92
136. Disclosure by witnesses 92
137. Court may order costs and expenses 93
138. Court may order forfeiture 93
139. Court may order corrective advertising 93
Part 12 -- Miscellaneous
140. Fees and charges may be imposed and recovered
by local governments that are enforcement
agencies 95
141. Protection from liability for wrongdoing 95
142. Certain confidential information not to be
disclosed 96
143. Publication of names of offenders 97
page vi
Food Bill 2005
Contents
144. Regulations 98
145. Temporary emergency regulations modifying the
Food Standards Code 99
146. Minister to review and report on Act 100
Part 13 -- Consequential
amendments
147. Health Act 1911 amended 101
148. Liquor Control Act 1988 amended 103
149. Volunteers and Food and Other Donors
(Protection from Liability) Act 2002 amended 104
Part 14 -- Transitional provisions
150. Definition 105
151. Interpretation Act 1984 not affected 105
152. Orders under Health Act 1911 section 246W 105
153. Orders under Health Act 1911 section 246Y 105
154. Transitional regulations 105
Defined Terms
page vii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Food Bill 2005
A Bill for
An Act providing for the safety and suitability of food for human
consumption, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Food Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Food Act 2005.
2. Commencement
5 (1) This Act comes into operation as follows:
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1)(b) for
10 different provisions.
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;
15 (b) to prevent misleading conduct in connection with the
sale of food;
(c) to provide for the application in this State of the Food
Standards Code.
4. Application of Act to primary food production
20 (1) Parts 6, 8 and 9 do not apply to or in respect of primary food
production.
(2) The functions conferred on authorised officers by Parts 5 and 7
may be performed in respect of primary food production
only --
25 (a) to enable the investigation and prosecution of offences
against this Act; or
(b) in connection with making or enforcing emergency
orders.
page 2
Food Bill 2005
Preliminary Part 1
s. 5
5. Application of Act to water suppliers
(1) The following provisions of this Act do not apply to a water
supplier in respect of the supply of water for human
consumption through a reticulated water system --
5 (a) sections 14, 16, 17(1), 18(1), 19, 20, 21 and 22 (but only
to the extent to which section 22 requires compliance
with the requirements of the Food Safety Standards);
(b) Parts 6, 8 and 9.
(2) In this section --
10 "water supplier" means --
(a) a body that is constituted by or under an Act and that
has as, or as one of, its functions the supply of water
for human consumption;
(b) a person who is employed or engaged by such a body
15 to supply water for human consumption; or
(c) any body or person prescribed by the regulations for
the purposes of this definition.
6. Application of Act to prescribed community activities
(1) In subsection (2) --
20 "prescribed" means prescribed by the regulations for the
purposes of that subsection.
(2) The regulations may exempt from all or any provisions of this
Act a prescribed activity of a charitable or community nature
relating to food or an activity within a prescribed class of
25 activities of a charitable or community nature relating to food.
(3) An exemption may be expressed to apply --
(a) generally;
(b) for a specified period; or
(c) in specified circumstances or for the purposes of a
30 specified occasion or event.
page 3
Food Bill 2005
Part 1 Preliminary
s. 7
(4) The regulations may provide --
(a) for conditions and restrictions subject to which an
exemption is to apply; and
(b) that an exemption is of no effect at any time when any
5 condition or restriction to which the exemption is
subject is not being complied with.
7. Act to bind Crown
This Act binds the Crown in right of the State and, so far as the
legislative power of Parliament permits, in all its other
10 capacities.
page 4
Food Bill 2005
Interpretation Part 2
s. 8
Part 2 -- Interpretation
8. Terms used in this Act
In this Act, unless the contrary intention appears --
"advertisement" means --
5 (a) any words, whether written or spoken;
(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;
10 "analysis" includes any examination or testing of food or any
other thing;
"animal" includes an amphibian, bird, crustacean, fish, mollusc
and reptile;
"appropriate enforcement agency", in relation to the
15 provision in which the expression is used, means the
enforcement agency prescribed by the regulations for the
purposes of that provision;
"approved analyst" means a person approved under Part 7
Division 4;
20 "approved form" means the form approved from time to time
by the CEO;
"approved laboratory" means a laboratory approved under
Part 7 Division 3;
"authorised officer" means a person appointed under Part 10
25 Division 3;
"CEO" means the chief executive officer of the department of
the Public Service principally assisting in the
administration of this Act;
"court" means the Magistrates Court;
30 "emergency order" means an order under Part 4;
page 5
Food Bill 2005
Part 2 Interpretation
s. 8
"enforcement agency" means --
(a) the CEO;
(b) a local government; or
(c) a person or body, or a person or body within a class
5 of persons or bodies, prescribed by the regulations for
the purposes of this definition;
"equipment" means the whole or part of --
(a) any utensil, machinery, instrument, device, apparatus
or appliance that is used, or that is designed or
10 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
15 in paragraph (a);
"examine" includes weigh, count, test and measure;
"food" has the meaning given by section 9;
"food business" has the meaning given by section 10;
"food safety auditor" means a person approved under Part 8
20 Division 1;
"Food Safety Standards" means the standards contained in
Chapter 3 of the Food Standards Code;
"Food Standards Australia New Zealand" has the same
meaning as it has in the Commonwealth Food Standards
25 Australia New Zealand Act 1991;
"Food Standards Code" means the Australia New Zealand
Food Standards Code as defined in the Commonwealth
Food Standards Australia New Zealand Act 1991 and as
adopted or incorporated by the regulations;
30 "food transport vehicle" means a vehicle used for the transport
of food for sale;
"handling", of food, includes the making, manufacturing,
producing, collecting, extracting, processing, storing,
page 6
Food Bill 2005
Interpretation Part 2
s. 8
transporting, delivering, preparing, treating, preserving,
packing, cooking, thawing, serving and displaying of food;
"improvement notice" means an improvement notice issued
under Part 6 Division 1;
5 "label" includes any tag, brand, mark or statement in writing or
any representation or design or other descriptive matter on
or attached to or used or displayed in connection with or
accompanying any food or package;
"member of staff " means an officer of the department of the
10 Public Service principally assisting in the administration of
this Act;
"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
15 carried or sold or intended to be carried or sold in more
than one package, includes every such package;
"police officer" means a person appointed under the Police
Act 1892 Part I to be a member of the Police Force of
Western Australia;
20 "premises" includes --
(a) land (whether or not vacant);
(b) the whole or any part of a building, tent, stall or other
structure (whether of a permanent or temporary
nature);
25 (c) a pontoon; or
(d) a vehicle (other than a food transport vehicle while it
is engaged in the transport of food);
"primary food production" has the meaning given by
section 11;
30 "prohibition order" means a prohibition order under Part 6
Division 2;
"proprietor", of a food business, means --
(a) the person carrying on the food business; or
page 7
Food Bill 2005
Part 2 Interpretation
s. 8
(b) if that person cannot be identified -- the person in
charge of the food business;
"public institution" means --
(a) a prison as defined in the Prisons Act 1981;
5 (b) a detention centre as defined in the Young Offenders
Act 1994;
(c) a public hospital as defined in the Hospitals and
Health Services Act 1927; or
(d) an institution, or an institution within a class of
10 institutions, prescribed by the regulations for the
purposes of this definition;
"recall order" means an emergency order requiring the recall
or disposal, or both, of any food;
"remote communication" means any way of communicating at
15 a distance, including by telephone, fax, email and radio;
"sell" includes --
(a) barter, offer or attempt to sell;
(b) receive for sale;
(c) have in possession for sale;
20 (d) display for sale;
(e) cause or permit to be sold or offered for sale;
(f) send, forward or deliver for sale;
(g) dispose of by any method for valuable consideration;
(h) dispose of to an agent for sale on consignment;
25 (i) provide under a contract of service;
(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
30 consumption by the employee at the employee's
place of work;
page 8
Food Bill 2005
Interpretation Part 2
s. 9
(k) dispose of by way of raffle, lottery or other game of
chance;
(l) offer as a prize or reward;
(m) give away for the purpose of advertisement or in
5 furtherance of trade or business;
(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
10 for the food supplied and the accommodation, service
or entertainment;
(o) supply food (whether or not for consideration) in the
course of providing services to patients or inmates in
public institutions; and
15 (p) sell for the purpose of resale;
"unsafe", in relation to food, has the meaning given by
section 12;
"unsuitable", in relation to food, has the meaning given by
section 13;
20 "vehicle" means any means of transport, whether self-propelled
or not, and whether used on land or sea or in the air.
9. Meaning of "food"
(1) In this Act, "food" includes --
(a) any substance or thing of a kind used, or represented as
25 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);
30 (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
page 9
Food Bill 2005
Part 2 Interpretation
s. 10
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;
5 and
(e) any substance or thing declared to be a food under a
declaration in force under the Commonwealth Food
Standards Australia New Zealand Act 1991 section 6,
whether or not the substance, thing or chewing gum is in a
10 condition fit for human consumption.
(2) However, "food" does not include a therapeutic good within the
meaning of the Commonwealth Therapeutic Goods Act 1989.
(3) To avoid doubt, "food" may include live animals and plants.
10. Meaning of "food business"
15 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,
20 regardless of whether, subject to section 6, 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.
11. Meaning of "primary food production"
25 (1) In this Act, "primary food production" means the growing,
raising, cultivation, picking, harvesting, collection or catching
of food, and includes --
(a) the transportation or delivery of food on, from or
between the premises on which it was grown, raised,
30 cultivated, picked, harvested, collected or caught;
page 10
Food Bill 2005
Interpretation Part 2
s. 12
(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
5 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; and
(e) any other food production activity that is regulated by or
10 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),
15 regardless of whether the process is carried out on the
premises on which the food was grown, cultivated,
picked, harvested, collected or caught;
(b) the sale or service of food directly to the public; or
(c) any other food production activity that is prescribed by
20 the regulations for the purposes of this subsection.
12. Meaning of "unsafe" in relation to 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 --
25 (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;
(b) nothing happened to it after that particular time and
30 before being consumed by the person that would prevent
it from being used for its reasonable intended use; and
(c) it was consumed by the person according to its
reasonable intended use.
page 11
Food Bill 2005
Part 2 Interpretation
s. 13
(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
5 majority of persons.
(3) In subsection (1) --
"processes" include processes involving storage and
preparation.
13. Meaning of "unsuitable" in relation to food
10 (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;
(b) contains any damaged, deteriorated or perished
15 substance that affects its reasonable intended use;
(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
20 (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
25 consumption it contains an agricultural or veterinary
chemical;
(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
30 Food Standards Code;
page 12
Food Bill 2005
Interpretation Part 2
s. 13
(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
5 (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
10 purposes of preparing it for use as food.
page 13
Food Bill 2005
Part 3 Offences relating to food
Division 1 Serious offences relating to food
s. 14
Part 3 -- Offences relating to food
Division 1 -- Serious offences relating to food
14. Handling of food in unsafe manner
(1) A person must not handle food intended for sale in a manner
5 that the person knows will render, or is likely to render, the food
unsafe.
Penalty:
(a) for an individual -- a fine of $100 000 and
imprisonment for 2 years;
10 (b) for a body corporate -- a fine of $500 000.
(2) A person must not handle food intended for sale in a manner
that the person ought reasonably to know is likely to render the
food unsafe.
Penalty:
15 (a) for an individual -- a fine of $75 000;
(b) for a body corporate -- a fine of $375 000.
15. Sale of unsafe food
(1) A person must not sell food that the person knows is unsafe.
Penalty:
20 (a) for an individual -- a fine of $100 000 and
imprisonment for 2 years;
(b) for a body corporate -- a fine of $500 000.
(2) A person must not sell food that the person ought reasonably to
know is unsafe.
25 Penalty:
(a) for an individual -- a fine of $75 000;
(b) for a body corporate -- a fine of $375 000.
page 14
Food Bill 2005
Offences relating to food Part 3
Serious offences relating to food Division 1
s. 16
16. False description of 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
5 harm.
Penalty:
(a) for an individual -- a fine of $100 000 and
imprisonment for 2 years;
(b) for a body corporate -- a fine of $500 000.
10 (2) A person must not cause food intended for sale to be falsely
described if the person ought reasonably to know that a
consumer of the food who relies on the description is likely to
suffer physical harm.
Penalty:
15 (a) for an individual -- a fine of $75 000;
(b) for a body corporate -- a fine of $375 000.
(3) A person must not sell food that the person knows --
(a) is falsely described; and
(b) will cause, or is likely to cause, physical harm to a
20 consumer of the food who relies on the description.
Penalty:
(a) for an individual -- a fine of $100 000 and
imprisonment for 2 years;
(b) for a body corporate -- a fine of $500 000.
25 (4) A person must not sell food that the person ought reasonably to
know --
(a) is falsely described; and
(b) is likely to cause physical harm to a consumer of the
food who relies on the description.
30 Penalty:
(a) for an individual -- a fine of $75 000;
(b) for a body corporate -- a fine of $375 000.
page 15
Food Bill 2005
Part 3 Offences relating to food
Division 2 Other offences relating to food
s. 17
Division 2 -- Other offences relating to food
17. 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.
5 Penalty:
(a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
(2) A person must not sell food that is unsafe.
Penalty:
10 (a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
18. 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.
15 Penalty:
(a) for an individual -- a fine of $40 000;
(b) for a body corporate -- a fine of $200 000.
(2) A person must not sell food that is unsuitable.
Penalty:
20 (a) for an individual -- a fine of $40 000;
(b) for a body corporate -- a fine of $200 000.
(3) For the purposes of this section, it is immaterial whether the
food concerned is safe.
page 16
Food Bill 2005
Offences relating to food Part 3
Other offences relating to food Division 2
s. 19
19. 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
5 labelling of food intended for sale or the sale of food.
Penalty:
(a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
(2) A person must not, for the purpose of effecting or promoting the
10 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:
(a) for an individual -- a fine of $50 000;
15 (b) for a body corporate -- a fine of $250 000.
(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:
20 (a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
(4) Nothing in subsection (2) or (3) limits the generality of
subsection (1).
20. Sale of food not complying with purchaser's demand
25 (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:
(a) for an individual -- a fine of $50 000;
30 (b) for a body corporate -- a fine of $250 000.
page 17
Food Bill 2005
Part 3 Offences relating to food
Division 2 Other offences relating to food
s. 21
(2) For the purposes of this section, it is immaterial whether the
food concerned is safe.
21. Sale of unfit equipment or packaging or labelling material
(1) A person must not sell equipment that, if used for the purposes
5 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
10 designed or intended to be used, it would render, or be
likely to render, food unsafe.
Penalty:
(a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
15 (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:
(a) for an individual -- a fine of $50 000;
20 (b) for a body corporate -- a fine of $250 000.
22. 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
25 food for sale.
Penalty:
(a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
page 18
Food Bill 2005
Offences relating to food Part 3
Other offences relating to food Division 2
s. 23
(2) A person must not sell any food that does not comply with a
requirement of the Food Standards Code that relates to the food.
Penalty:
(a) for an individual -- a fine of $50 000;
5 (b) for a body corporate -- a fine of $250 000.
(3) A person must not sell or advertise for sale any food that is
packaged or labelled in a manner that contravenes a provision of
the Food Standards Code.
Penalty:
10 (a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
(4) A person must not sell or advertise for sale any food in a
manner that contravenes a provision of the Food Standards
Code.
15 Penalty:
(a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
23. False description of food
(1) For the purposes of this Part, food that is falsely described
20 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
25 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
30 properties as compared with food of the represented
nature or substance;
page 19
Food Bill 2005
Part 3 Offences relating to food
Division 3 Defences
s. 24
(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;
5 (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;
10 (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
15 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) to
20 section 16(3) or (4), food is falsely described for the purposes of
section 16(3) or (4) if it is supplied in response to a purchaser's
request for a particular type of food, or a food that does not
contain a particular ingredient, and the food is not of that type or
contains that ingredient.
25 24. Application of provisions outside Western Australia
For the purposes of a provision of this Part, it does not matter
that the food concerned was sold or intended for sale outside
this State.
Division 3 -- Defences
30 25. 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
page 20
Food Bill 2005
Offences relating to food Part 3
Defences Division 3
s. 26
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
5 business.
(2) Subsection (1) does not apply if the person --
(a) ought reasonably to have known that the publication of
the advertisement was an offence;
(b) had previously been informed in writing by the CEO
10 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.
15 26. 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 --
20 (a) the food in question is to be exported to another country;
and
(b) the food complies with the laws in force at the time of
the alleged offence in the place to which the food is to
be exported, being laws that deal with the same subject
25 matter as the provision of the Food Standards Code
concerned.
(2) This section does not apply to food that was originally intended
for export but was sold in this State.
27. Defence of due diligence
30 (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
page 21
Food Bill 2005
Part 3 Offences relating to food
Division 3 Defences
s. 27
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
5 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;
10 (b) that --
(i) the person carried out all the checks of the food
concerned that were reasonable in all the
circumstances; or
(ii) it was reasonable in all the circumstances to rely
15 on checks carried out by the person who supplied
the food concerned to the person;
(c) that the person did not import the food into this State
from another country; and
(d) in the case of an offence involving the sale of food,
20 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
25 the difference did not result in any contravention
of this Act.
(3) In subsection (2)(a) --
"another person" does not include a person who was --
(a) an employee or agent of the accused person; or
30 (b) in the case of an accused person that is a body
corporate -- a director, employee or agent of the
accused person.
page 22
Food Bill 2005
Offences relating to food Part 3
Defences Division 3
s. 28
(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
5 which a food safety program is required to be prepared
in accordance with the regulations -- the person
complied with a food safety program for the food
business that complies with the requirements of the
regulations; or
10 (b) in any other case -- the person complied with a scheme
(for example, a quality assurance program or an industry
code of practice) that was --
(i) designed to manage food safety hazards and
based on Australian national or international
15 standards, codes or guidelines designed for that
purpose; and
(ii) documented in some manner.
28. Defence in respect of handling food
In any proceedings for an offence under section 14(1)
20 or (2), 17(1) or 18(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 rendered it, or was likely to
render it, unsafe or unsuitable.
25 29. Defence in respect of sale of unfit equipment or packaging
or labelling material
In any proceedings for an offence under section 21, it is a
defence if the person proves that the person reasonably believed
that the equipment or material concerned was not intended for
30 use in connection with the handling of food.
page 23
Food Bill 2005
Part 3 Offences relating to food
Division 4 Alternative verdicts
s. 30
Division 4 -- Alternative verdicts
30. Alternative verdicts for serious food offences
(1) If, on the trial of a person charged with an offence against
section 14, the court is not satisfied that the person committed
5 the offence but is satisfied that the person committed an offence
against section 17(1), the court may find the person not guilty of
the offence charged but guilty of an offence against
section 17(1), and the person is liable to be punished
accordingly.
10 (2) If, on the trial of a person charged with an offence against
section 15, the court is not satisfied that the person committed
the offence but is satisfied that the person committed an offence
against section 17(2), the court may find the person not guilty of
the offence charged but guilty of an offence against
15 section 17(2), and the person is liable to be punished
accordingly.
page 24
Food Bill 2005
Emergency powers Part 4
s. 31
Part 4 -- Emergency powers
31. Making of emergency order
An order may be made under this Part by the CEO if the CEO
has reasonable grounds to believe that making the emergency
5 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.
32. Nature of emergency order
An emergency order may do any one or more of the
10 following --
(a) require the publication of warnings, in the approved
form, 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
15 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
20 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 be
impounded, isolated, destroyed or otherwise disposed of
25 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
30 conditions specified in the order;
(g) without limiting the generality of paragraph (f), impose
conditions relating to the taking and analysis of samples
page 25
Food Bill 2005
Part 4 Emergency powers
s. 33
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
5 methods prescribed by the Food Standards Code) of any
samples required to be taken in accordance with the
order.
33. Special provisions relating to recall orders
(1) A recall order may require the person, or the persons of a class,
10 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;
15 (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
20 any food must give written notification to the CEO 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 reasonable
costs incurred by or on behalf of the CEO in connection with
25 the recall order, and any such costs are taken to be a debt due to
the CEO from that person and are recoverable in a court of
competent jurisdiction.
(4) In any proceedings for the recovery of the debt, a certificate
signed by the CEO stating the amount of reasonable costs and
30 the manner in which they were incurred is evidence of the
matters certified.
page 26
Food Bill 2005
Emergency powers Part 4
s. 34
34. Manner of making orders
(1) An emergency order --
(a) may be made in writing addressed to the person or
persons intended to be bound by it, and served on that
5 person or each of those persons, as the case requires; or
(b) if notified in accordance with subsection (2) -- may be
addressed to several persons, to a class of persons, or to
all persons.
(2) Notice of an emergency order addressed as referred to in
10 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 CEO, will be most likely to bring the order to the
attention of the persons bound by it.
15 (3) An emergency order, when it takes effect, is binding on the
person or persons to whom it is addressed.
(4) An emergency order that is served on a person takes effect when
it is served.
(5) An emergency order, notice of which is published under
20 subsection (2), takes effect at the beginning of the first day on
which the notice was published.
(6) An emergency order ceases to have effect on the expiry of
90 days after the day on which it takes effect unless it is sooner
revoked.
25 (7) Subsection (6) does not prevent a further emergency order being
made in the same terms as an emergency order that has ceased
to have effect.
(8) An emergency order may be varied or revoked by the CEO in
the same manner as the order was made.
page 27
Food Bill 2005
Part 4 Emergency powers
s. 35
35. Compensation
(1) A person bound by an emergency order who --
(a) suffers loss as a result of the making of the order; and
(b) considers that there were insufficient grounds for
5 making the order,
may apply to the CEO for compensation.
(2) If there were insufficient grounds for making the emergency
order, the CEO must pay the compensation to the applicant that
is just and reasonable.
10 (3) The CEO must give each applicant for the payment of
compensation written notification of --
(a) the determination to pay or to refuse to pay
compensation under this section; and
(b) if compensation is to be paid -- the determination as to
15 the amount of compensation that is just and reasonable.
(4) If the CEO has not determined an application for compensation
under this section within 28 days after receiving the application,
the CEO is taken to have refused to pay any compensation.
(5) An applicant for the payment of compensation under this
20 section who is dissatisfied with a determination by the CEO as
to the refusal to pay compensation or as to the amount of
compensation may apply to the State Administrative Tribunal
for a review of the determination --
(a) within 28 days after the day on which notification of the
25 determination was received; or
(b) in a case to which subsection (4) applies -- within
28 days after the expiry of the 28 day period referred to
in that subsection.
page 28
Food Bill 2005
Emergency powers Part 4
s. 36
36. 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 emergency order;
5 (b) neglect or refuse to comply with a direction given by an
emergency order; or
(c) fail to comply with a condition specified in an
emergency order.
Penalty:
10 (a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
37. Limitation on stay of operation of emergency orders
In any proceedings for judicial review or in any other
proceedings, a court or tribunal is not authorised to make an
15 interlocutory order that has the effect of staying the operation of
an emergency order.
page 29
Food Bill 2005
Part 5 Powers of entry, inspection and seizure
Division 1 Entry, inspection and seizure
s. 38
Part 5 -- Powers of entry, inspection and seizure
Division 1 -- Entry, inspection and seizure
38. Powers of authorised officers
(1) For the purposes of this Act, an authorised officer may, at any
5 reasonable time, do any one or more of the following --
(a) alone, or with the police officers or other persons the
authorised officer considers necessary, enter and inspect
any premises that the authorised officer reasonably
believes are used in connection with the handling of any
10 food intended for sale or the sale of food, or any food
transport vehicle;
(b) alone, or with the police officers or other persons the
authorised officer considers necessary, enter and inspect
any premises or food transport vehicle in which the
15 authorised officer reasonably believes that there are any
records or documents that relate to the handling of any
food intended for sale or the sale of food;
(c) examine any food intended for sale;
(d) open and examine any package that the authorised
20 officer reasonably believes contains any food intended
for sale or any equipment;
(e) open and examine any equipment;
(f) examine any labelling or advertising material that
appears to the authorised officer to be intended for use
25 in connection with any food intended for sale or any
equipment;
(g) subject to Part 7 Division 1, for the purpose of analysing
any food sold or intended for sale or for carrying out any
other examination to determine whether the provisions
30 of this Act are being complied with -- demand, select
and obtain samples of any food;
page 30
Food Bill 2005
Powers of entry, inspection and seizure Part 5
Entry, inspection and seizure Division 1
s. 38
(h) for the purpose of analysis, take samples of water or soil
or any other thing that is part of the environment in
which any food is handled to determine whether that
environment poses a risk to the safety of the food for
5 human consumption;
(i) take samples of anything, other than for the purpose of
analysis, that the authorised officer reasonably believes
may be used as evidence that an offence has been, or is
being, committed under this Act;
10 (j) examine any records or documents referred to in
paragraph (b), make copies of those records or
documents or any part of them and, for that purpose,
take away and retain (for any time that may be
reasonably necessary) any of those records or
15 documents or any part of them;
(k) stop and detain any vehicle that the authorised officer is
authorised by this subsection to enter;
(l) open, or require to be opened, any container used for the
conveyance of goods, or any package, that the
20 authorised officer reasonably believes to contain any
food sold or intended for sale, or any equipment;
(m) take any photographs, films or audio or visual
recordings that the authorised officer considers
necessary;
25 (n) take any measurements and make sketches or drawings
or any other type of record;
(o) require a person to provide information or answer
questions in connection with the authorised officer's
functions under this Act or to produce any record,
30 document or thing that an authorised officer is
authorised to examine under this Act;
(p) require a person to state the person's name and
residential address;
page 31
Food Bill 2005
Part 5 Powers of entry, inspection and seizure
Division 1 Entry, inspection and seizure
s. 39
(q) generally make any investigations and inquiries that
may be necessary to ascertain whether an offence under
this Act has been or is being committed.
(2) This section does not authorise entry into any part of premises
5 being used solely for residential purposes, except --
(a) with the consent of the occupier of the premises;
(b) under the authority of a warrant issued under section 42;
or
(c) if that part of the premises is being used for the
10 preparation or service of meals provided with paid
accommodation.
(3) With respect to powers of entry, inspection and seizure by and
pursuant to section 38, the exercise of all such powers of the
authorised officer must be reasonable under the circumstances.
15 39. Self-incrimination not an excuse
(1) A person is not excused from a requirement under section 38 to
provide information or answer questions, or to produce any
record, document or thing, on the ground that the information,
answer, record, document or thing might incriminate the person
20 or make the person liable to a penalty.
(2) However, any information or answer provided, or record,
document or thing produced, by an individual in compliance
with such a requirement is not admissible in evidence against
the person in criminal proceedings other than proceedings for an
25 offence against section 45, 46, 47 or 48.
40. Power of seizure
An authorised officer may seize any food, or any vehicle,
equipment, package or labelling or advertising material, or any
other thing, that the authorised officer believes on reasonable
30 grounds is evidence that an offence under this Act has been or is
being committed.
page 32
Food Bill 2005
Powers of entry, inspection and seizure Part 5
Entry, inspection and seizure Division 1
s. 41
41. Application for warrant to enter premises
(1) A reference in this section to making an application includes a
reference to giving information in support of the application.
(2) An authorised officer may apply to a magistrate for a warrant in
5 respect of any premises if the authorised officer has reasonable
grounds for believing that a provision of this Act has been or is
being contravened on the premises.
(3) The application must be made by the authorised officer in
person unless --
10 (a) the warrant is needed urgently; and
(b) the applicant reasonably believes that a magistrate is not
available within a reasonable distance of the applicant,
in which case --
(c) the application may be made to a magistrate by remote
15 communication; and
(d) the magistrate may grant the application only if satisfied
about the matters in paragraphs (a) and (b).
(4) The application must be made in writing unless --
(a) the application is made by remote communication; and
20 (b) it is not practicable to send the magistrate written
material,
in which case --
(c) the application may be made orally; and
(d) the magistrate must make a written record of the
25 application and any information given in support of it.
(5) The application must be made on oath unless --
(a) the application is made by remote communication; and
(b) it is not practicable for the magistrate to administer an
oath to the applicant,
page 33
Food Bill 2005
Part 5 Powers of entry, inspection and seizure
Division 1 Entry, inspection and seizure
s. 42
in which case --
(c) the application may be made in unsworn form; and
(d) if the magistrate issues a warrant, the applicant is as
soon as practicable to send the magistrate an affidavit
5 verifying the application and any information given in
support of it.
(6) If, on an application made by remote communication under this
section, a magistrate issues a warrant, the magistrate must send,
if practicable, a copy of the original warrant to the applicant by
10 remote communication, but otherwise --
(a) the magistrate must send the applicant by remote
communication any information that is to be set out in
the warrant;
(b) the applicant must complete a form of a warrant with
15 that information and give the magistrate a copy of the
form as soon as practicable after doing so; and
(c) the magistrate must attach the copy of the form to the
original warrant and any affidavit received from the
applicant and make them available for collection by the
20 applicant.
(7) The copy of the original warrant sent, or the form of the warrant
completed, as the case may be, under subsection (6) has the
same force and effect as the original warrant.
(8) If an applicant contravenes subsection (5)(d) or (6)(b), any
25 evidence obtained under the warrant is not admissible in
proceedings in a court.
42. Issue of warrant
(1) The magistrate may, if satisfied that there are reasonable
grounds for doing so, issue a warrant to the authorised officer.
30 (2) The magistrate must cause a record to be made (on the warrant
or otherwise) of the matters of fact on which the magistrate has
relied to justify the issue of the warrant.
page 34
Food Bill 2005
Powers of entry, inspection and seizure Part 5
Entry, inspection and seizure Division 1
s. 43
43. Duration of warrant
A warrant remains in force --
(a) for the period specified in the warrant as the period
during which it remains in force; or
5 (b) if no period is so specified -- for one month from the
date of its issue.
44. Execution of warrant
(1) A warrant may be executed only by the authorised officer to
whom it was issued.
10 (2) A warrant authorises the authorised officer to whom it was
issued --
(a) to enter the premises concerned using any force that is
reasonably necessary to do so; and
(b) to search those premises for evidence of a contravention
15 of this Act.
(3) An authorised officer executing a warrant --
(a) may be accompanied by a police officer if necessary for
the effective exercise of the powers conferred by the
warrant and this section; and
20 (b) must produce the warrant for inspection by a person
occupying the premises concerned if asked by the
person to do so.
(4) This section does not limit the operation of any other provision
of this Part.
25 45. Failure to comply with requirements of authorised officers
(1) A person must not, without reasonable excuse, fail to comply
with a requirement of an authorised officer under this Division.
Penalty:
(a) for an individual -- a fine of $10 000;
30 (b) for a body corporate -- a fine of $50 000.
page 35
Food Bill 2005
Part 5 Powers of entry, inspection and seizure
Division 1 Entry, inspection and seizure
s. 46
(2) Subsection (1) does not apply unless, when the authorised
officer makes the requirement, the authorised officer informs
the person that a failure to comply with the requirement may
constitute an offence.
5 46. Interfering with seized items
A person must not, without the permission of an authorised
officer, detain, remove or tamper with any food, vehicle,
equipment, package or labelling or advertising material or other
thing that has been seized under this Act, unless it has been
10 returned in accordance with Division 2 or an order disallowing
the seizure has been made under that Division.
Penalty:
(a) for an individual -- a fine of $10 000;
(b) for a body corporate -- a fine of $50 000.
15 47. False information
A person must not, in connection with a requirement or
direction under this Act, provide any information or produce
any document that the person knows is false or misleading in a
material particular.
20 Penalty:
(a) for an individual -- a fine of $10 000;
(b) for a body corporate -- a fine of $50 000.
48. Obstructing, impersonating or threatening
authorised officers
25 (1) A person must not resist, obstruct or attempt to obstruct an
authorised officer in the performance of the authorised officer's
functions under this Act.
Penalty: a fine of $10 000.
(2) A person must not falsely represent, by words or conduct, that
30 the person is an authorised officer.
Penalty: a fine of $10 000.
page 36
Food Bill 2005
Powers of entry, inspection and seizure Part 5
Items seized by authorised officers Division 2
s. 49
(3) A person must not threaten or intimidate an authorised officer in
the performance of the authorised officer's functions under this
Act.
Penalty: a fine of $10 000.
5 Division 2 -- Items seized by authorised officers
49. Seized items
(1) Any item seized under this Part may, at the option of the
authorised officer who seized the item or of any authorised
officer acting in his or her place, be detained in the premises
10 where it was found or be removed to another place and detained
there.
(2) If the item is to be detained in the premises where it was found,
the authorised officer --
(a) may place it in a room, compartment or cabinet in those
15 premises;
(b) may mark, fasten and seal the door or opening providing
access to that room, compartment or cabinet; and
(c) must ensure that it is marked in a way that indicates that
it has been seized under this Act.
20 50. Notification of seizure
An authorised officer who seizes any item under this Part must,
as soon as practicable after the seizure, give the person from
whom the item was seized written notification of the seizure
that includes --
25 (a) a description of the item seized;
(b) the reason for the seizure;
(c) an explanation of the person's right to make an
application to the court under section 57 for an order
disallowing the seizure;
30 (d) the address of the place where the item is held if the
item has been removed from the premises where it was
seized; and
page 37
Food Bill 2005
Part 5 Powers of entry, inspection and seizure
Division 2 Items seized by authorised officers
s. 51
(e) the name of the enforcement agency to whom the
authorised officer reports.
51. Destruction of filthy, decomposed or putrid matter
If an authorised officer who has seized food under this Part is
5 satisfied that the food consists wholly or partly of filthy,
decomposed or putrid matter or that it poses an immediate risk
to health or property, the authorised officer (disregarding any
provision to the contrary in this Part) may cause the food to be
destroyed.
10 52. Return of seized item
If, before any item seized under this Part is forfeited to the State
under this Division, the enforcement agency concerned becomes
satisfied that there has been no contravention of this Act of
which the item is evidence, the enforcement agency must, as
15 soon as practicable, cause the item to be delivered to --
(a) the person from whom it was seized; or
(b) any other person who appears to the enforcement agency
to be entitled to it.
53. Forfeiture of item
20 (1) An item seized under this Part is forfeited to the State --
(a) on the expiry of the period allowed by section 57 for
lodging an application for an order disallowing the
seizure if the item has not been dealt with under
section 52 and no application under section 57 has been
25 lodged within that period; or
(b) if an application for an order disallowing the seizure has
been lodged under section 57 within that period but the
application has been refused or has been withdrawn
before a decision on the application has been made --
30 on the date on which the application is refused or
withdrawn.
page 38
Food Bill 2005
Powers of entry, inspection and seizure Part 5
Items seized by authorised officers Division 2
s. 54
(2) An item forfeited to the State under this section may be
destroyed, sold or otherwise disposed of as the enforcement
agency concerned may, generally or in a particular case, direct.
54. Cost of destruction or disposal of forfeited item
5 (1) A person who was the owner of an item immediately before its
forfeiture under this Division is liable for any costs incurred by
or on behalf of the enforcement agency concerned in connection
with the lawful destruction or disposal of the item (including
any storage costs).
10 (2) The amount of any such costs is taken to be a debt due to the
enforcement agency from that person and is recoverable in a
court of competent jurisdiction.
(3) In any proceedings for the recovery of the debt, a certificate
signed by the enforcement agency stating the amount of any
15 costs and the manner in which they were incurred is evidence of
the matters certified.
55. Return of forfeited item
(1) An item seized under this Part that --
(a) is forfeited under this Division; and
20 (b) has not been destroyed or otherwise disposed of in a
manner that would prevent its return,
must, as soon as practicable, be delivered to the person from
whom it was seized, or any other person who appears to the
enforcement agency concerned to be entitled to it, if the
25 enforcement agency becomes satisfied that no contravention of
this Act has been committed in relation to the item.
(2) On being so delivered, any proprietary and other interests in the
item that existed immediately before its forfeiture are restored.
page 39
Food Bill 2005
Part 5 Powers of entry, inspection and seizure
Division 2 Items seized by authorised officers
s. 56
56. Compensation to be paid in certain circumstances
(1) A person may apply for compensation for an item seized under
this Part to the enforcement agency that appointed the
authorised officer who seized the item, but only if --
5 (a) the period allowed by section 57 for lodging an
application for an order disallowing the seizure has
expired and no application has been lodged; or
(b) any application for such an order lodged within that
period has been refused or has been withdrawn before a
10 decision on the application has been made.
(2) On an application made in accordance with this section, an
enforcement agency must pay the compensation that is just and
reasonable in relation to any item seized under this Part by an
authorised officer appointed by it if --
15 (a) no contravention of this Act has been committed in
relation to the item; and
(b) the item cannot be returned or has in consequence of the
seizure depreciated in value.
(3) An enforcement agency required to make a determination under
20 subsection (2) as to the payment of compensation must give
written notification of its determination to the person from
whom the item was seized and any person seeking
compensation under this section.
(4) If an enforcement agency determines to pay compensation
25 under this section in relation to an item, the compensation must
be paid to the person from whom the item was seized, or any
other person who appears to the enforcement agency to be
entitled to it.
(5) A person from whom an item was seized under this Part, or any
30 other person who has sought compensation under this section,
who is dissatisfied with a determination by an enforcement
agency under this section as to the refusal to pay compensation
or as to the amount of compensation may apply to the State
page 40
Food Bill 2005
Powers of entry, inspection and seizure Part 5
Items seized by authorised officers Division 2
s. 57
Administrative Tribunal for a review of the determination
within 28 days after the date on which notification of the
determination was received.
57. Application for order disallowing seizure
5 (1) A person claiming to be entitled to any item seized under this
Part may, within 10 days after the date on which the seizure
took place, lodge an application with the court, in accordance
with the court's rules of court, for an order disallowing the
seizure.
10 (2) The application is not to be heard unless the applicant has
served a copy of the application on the enforcement agency that
appointed the authorised officer who seized the item.
58. Enforcement agency entitled to answer application
The enforcement agency concerned is entitled to appear as
15 respondent at the hearing of an application under section 57.
59. Order disallowing seizure of item
(1) The court, on the hearing of an application under section 57,
must make an order disallowing the seizure of an item if --
(a) it is proved that the applicant would, but for the seizure,
20 be entitled to the item and it is not proved that an
offence under this Act was being, or had been,
committed, being an offence of which the item was
evidence; or
(b) in the opinion of the court, there are exceptional
25 circumstances justifying the making of such an order.
(2) If neither subsection (1)(a) or (b) applies, the court must refuse
the application.
page 41
Food Bill 2005
Part 5 Powers of entry, inspection and seizure
Division 2 Items seized by authorised officers
s. 60
60. Ancillary orders
(1) If the court makes an order disallowing the seizure of any item
seized under this Part, it must also make one or both of the
following orders --
5 (a) an order directing the respondent to cause the item to be
delivered to the applicant or to any other person who
appears to the court to be entitled to it;
(b) if the item cannot for any reason be so delivered or has
in consequence of the seizure depreciated in value -- an
10 order directing the enforcement agency concerned to pay
to the applicant the amount by way of compensation that
the court considers to be just and reasonable.
(2) Despite subsection (1), the court is not to award an amount of
compensation that exceeds the jurisdictional limit defined in the
15 Magistrates Court (Civil Proceedings) Act 2004 section 4.
(3) The award of costs with respect to the hearing of the application
lies in the discretion of the court.
(4) If the court makes an order for the payment of any amount as
compensation or awards any amount as costs, the order or award
20 is enforceable as a judgment of the court.
61. Adjournment pending hearing of other proceedings
If, on the hearing of an application made under section 57, it
appears to the court that the item that is the subject of the
application is required to be produced in evidence in any
25 pending proceedings in connection with an offence under this
Act or any other written law, the court, on the application of the
respondent or on its own motion, may adjourn the hearing until
the conclusion of those proceedings.
page 42
Food Bill 2005
Improvement notices and prohibition orders Part 6
Improvement notices Division 1
s. 62
Part 6 -- Improvement notices and prohibition orders
Division 1 -- Improvement notices
62. Grounds for serving improvement notice
An authorised officer may serve an improvement notice on the
5 proprietor of a food business in accordance with this Division if
the authorised officer believes, on reasonable grounds, that --
(a) any premises used by the food business in connection
with the handling of food intended for sale are, or any
equipment or food transport vehicle is, in an unclean or
10 insanitary condition or otherwise unfit for the purpose
for which the premises are, or the equipment or vehicle
is, designed or intended to be used;
(b) any premises used by the food business in connection
with the handling of food intended for sale do not, or
15 any equipment or food transport vehicle does not,
comply with a provision of the Food Safety Standards
with which the food business is required to comply;
(c) in relation to any premises used by the food business in
connection with the handling of food for sale or any
20 food transport vehicle -- any relevant food safety
program prepared in accordance with the regulations is
not being implemented adequately by the food business;
or
(d) any provision of the Food Standards Code with which
25 the food business is required to comply is being
contravened in relation to the handling of food intended
for sale on any premises, or in any food transport
vehicle, used by the food business in connection with
the handling of food intended for sale.
page 43
Food Bill 2005
Part 6 Improvement notices and prohibition orders
Division 1 Improvement notices
s. 63
63. Improvement notice may require certain action to be taken
(1) An improvement notice must take the form of an order that,
within the period of 24 hours (or any longer period that is
specified in the notice) after the service of the notice on the
5 proprietor of the food business --
(a) premises, equipment or a food transport vehicle be put
into a clean and sanitary condition, or be repaired, to the
satisfaction of an authorised officer;
(b) equipment or a vehicle be replaced;
10 (c) a food safety program be prepared if required by the
regulations;
(d) a food safety program required by the regulations be
revised so as to comply with the requirements of the
regulations;
15 (e) in relation to the handling of food intended for sale --
measures be taken to implement the provisions of any
relevant food safety program required by the regulations
to be prepared; or
(f) in relation to the handling of food intended for sale --
20 measures be taken to implement the requirements of the
Food Safety Standards.
(2) Before the end of the period specified in the improvement
notice, the authorised officer who issued the notice may, on his
or her own motion or on the application of the proprietor of the
25 food business, extend the period within which the proprietor of
the food business is to take action in accordance with the notice.
(3) An improvement notice must state that it is issued under this
section.
(4) An improvement notice may include ancillary or incidental
30 directions.
page 44
Food Bill 2005
Improvement notices and prohibition orders Part 6
Prohibition orders Division 2
s. 64
64. Compliance with improvement notice
(1) If an improvement notice is complied with, an authorised officer
must note the date of compliance on a copy of the notice.
(2) If asked to do so by the person, an authorised officer must give
5 a copy of an improvement notice, noted in accordance with this
section, to the person on whom the improvement notice was
served.
Division 2 -- Prohibition orders
65. Prohibition order
10 (1) If the CEO or another enforcement agency believes on
reasonable grounds --
(a) that any of the circumstances specified in
section 62(a), (b), (c) or (d) exist; and
(b) that --
15 (i) the proprietor of a food business has not
complied with an improvement notice within the
time required by section 63 for compliance; or
(ii) the issue of the order is necessary to prevent or
mitigate a serious danger to public health,
20 the CEO or other enforcement agency may serve a prohibition
order on the proprietor of the food business in accordance with
this Part.
(2) A prohibition order must take the form of an order that --
(a) no food intended for sale is to be handled on specified
25 premises or a specified part of specified premises;
(b) no food intended for sale is to be conveyed in a
specified vehicle;
(c) specified equipment is not to be used in connection with
food intended for sale;
page 45
Food Bill 2005
Part 6 Improvement notices and prohibition orders
Division 2 Prohibition orders
s. 66
(d) no food intended for sale is to be handled by a food
business in a specified way or for a specified purpose; or
(e) no other specified activities in relation to food intended
for sale are to be carried out on specified premises or a
5 specified part of specified premises,
until the proprietor of the food business has been given a
certificate of clearance under section 66 stating that --
(f) the premises, part of the premises, vehicle or equipment
may be used for the handling or conveyance of food
10 intended for sale, or in connection with such food;
(g) food intended for sale may be handled in the specified
way or for the specified purpose; or
(h) the specified activities in relation to food intended for
sale may be carried out,
15 as the case may be.
(3) A prohibition order must state that it is issued under this section.
(4) A prohibition order may include ancillary or incidental
directions.
66. Certificate of clearance to be given in certain circumstances
20 The CEO or other enforcement agency that made the prohibition
order must give a certificate of clearance if, after an inspection
of the premises, part of the premises, vehicle or equipment, or
the handling of food in the way or for the purpose, or the
activities, specified in the order, the CEO or agency finds, by
25 the CEO's or agency's own inspection or the report of an
authorised officer, that --
(a) the premises are not, or the part of the premises, vehicle
or equipment, or the handling of food by the food
business in the specified way or for the specified
30 purpose, or the carrying out of the specified activities is
not, a serious danger to public health; and
page 46
Food Bill 2005
Improvement notices and prohibition orders Part 6
Prohibition orders Division 2
s. 67
(b) the person on whom the prohibition order was served
has complied with the prohibition order and any
improvement notices served on the person.
67. Request for re-inspection
5 (1) The proprietor of the food business whose premises (other than
a vehicle) are affected by a prohibition order may at any time
after the order has been served make a written request to the
CEO or other enforcement agency who made the order to cause
the premises to be inspected by an authorised officer.
10 (2) The proprietor of the food business whose vehicle or equipment
is affected by a prohibition order may at any time after the order
has been served make a written request to the CEO or other
enforcement agency who made the order to cause the vehicle or
equipment to be inspected by an authorised officer --
15 (a) at the place where it was originally inspected; or
(b) if it is not convenient for it to be inspected at that
place -- at some other place that the CEO or other
enforcement agency who made the order has agreed to.
(3) If a request for inspection is made under this section and the
20 premises, vehicle or equipment concerned, through no fault of
the proprietor of the food business, are or is not inspected by an
authorised officer within the period of 48 hours after the receipt
of the request by the CEO or other enforcement agency, a
certificate of clearance is taken to have been given to the
25 proprietor of the food business under section 66.
(4) The CEO or other enforcement agency must give written
notification to the proprietor of a food business on whom a
prohibition order has been served of the decision not to give a
certificate of clearance after an inspection under this section or
30 section 66.
page 47
Food Bill 2005
Part 6 Improvement notices and prohibition orders
Division 2 Prohibition orders
s. 68
68. Contravention of prohibition order
A person must not contravene or fail to comply with a
prohibition order served on the person under this Division.
Penalty:
5 (a) for an individual -- a fine of $50 000;
(b) for a body corporate -- a fine of $250 000.
69. Review of decision to refuse certificate of clearance
(1) The proprietor of a food business on whom a prohibition order
has been served may apply to the State Administrative Tribunal
10 for a review of a decision of the CEO or other enforcement
agency who made the order to refuse to give a certificate of
clearance under section 66 to the proprietor.
(2) An application under subsection (1) must be made within
28 days after the day on which notification of the decision was
15 received.
70. Compensation
(1) A person on whom a prohibition order is served who --
(a) suffers loss as a result of the making of the order; and
(b) considers that there were insufficient grounds for
20 making the order,
may apply to the CEO or other enforcement agency who made
the order for compensation.
(2) If there were insufficient grounds for making the prohibition
order, the CEO or other enforcement agency must pay the
25 compensation to the applicant that is just and reasonable.
(3) The CEO or other enforcement agency must give each applicant
for the payment of compensation written notification of --
(a) the determination to pay or to refuse to pay
compensation under this section; and
page 48
Food Bill 2005
Improvement notices and prohibition orders Part 6
Other matters Division 3
s. 71
(b) if compensation is to be paid -- the determination as to
the amount of compensation that is just and reasonable.
(4) If the CEO or other enforcement agency has not determined an
application for compensation under this section within 28 days
5 after receiving the application, the CEO or other enforcement
agency is taken to have refused to pay any compensation.
(5) An applicant for the payment of compensation under this
section who is dissatisfied with a determination by the CEO or
other enforcement agency as to the refusal to pay compensation
10 or as to the amount of compensation may apply to the State
Administrative Tribunal 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
15 28 days after the expiry of the 28 day period referred to
in that subsection.
Division 3 -- Other matters
71. Scope of notices and orders
An improvement notice or a prohibition order may be made
20 with respect to any one or more of the following --
(a) any premises or any part of any premises, any food
transport vehicle or any equipment specified in the
notice or order;
(b) all equipment, or any specified equipment, contained on
25 any premises or any part of any premises, or in a food
transport vehicle, specified in the notice or order;
(c) the handling of food intended for sale by a food business
in a specified way or for a specified purpose;
(d) the carrying out of activities specified in the notice or
30 order in relation to food intended for sale.
page 49
Food Bill 2005
Part 6 Improvement notices and prohibition orders
Division 3 Other matters
s. 72
72. Notices and orders to contain certain information
An improvement notice or a prohibition order under this Part --
(a) must specify any provision of the Food Standards Code
to which it relates; and
5 (b) may specify particular action to be taken by a person to
ensure compliance with the provision of the Food
Standards Code to which it relates.
page 50
Food Bill 2005
Taking and analysis of samples Part 7
Taking of samples Division 1
s. 73
Part 7 -- Taking and analysis of samples
Division 1 -- Taking of samples
73. Application of Division
This Division applies only to the taking of samples by an
5 authorised officer in the exercise of powers under Part 5.
74. Proprietor to be informed
An authorised officer who obtains a sample of food for the
purposes of analysis must, either before or as soon as
practicable after obtaining the sample, inform --
10 (a) the proprietor of the food business from which the
sample is to be taken or was taken; or
(b) if the proprietor is not present or readily available -- the
person from whom the sample was obtained or who was
in charge of the food from which the sample was taken,
15 of the authorised officer's intention to have the sample
analysed.
75. Payment for sample
When an authorised officer obtains a sample of food for the
purposes of analysis, the authorised officer must pay or tender
20 payment of --
(a) the amount prescribed by the regulations as the amount
payable for the sample concerned; or
(b) if no such amount is prescribed by the regulations -- an
amount equal to the current market value of the sample,
25 to the person from whom the sample is obtained.
page 51
Food Bill 2005
Part 7 Taking and analysis of samples
Division 1 Taking of samples
s. 76
76. Samples from vending machines
Sections 74 and 75 do not apply if the authorised officer --
(a) obtains a sample of food from a vending machine by
making proper payment for the sample; and
5 (b) cannot identify anyone who at the time appears to be in
charge of the vending machine.
77. Packaged food
An authorised officer who takes a sample of food for the
purposes of this Act that is contained in a closed package
10 intended for retail sale must take the whole of the package
unless the package contains 2 or more smaller packages of the
same food.
78. Procedures to be followed
(1) This section applies to the taking of samples for the purposes of
15 this Act except to the extent that the Food Standards Code
otherwise provides.
(2) Subject to subsections (3) and (4), an authorised officer who
obtains a sample of food for the purposes of analysis must --
(a) divide the sample into 3 separate parts and mark and
20 seal or fasten each part in the manner that its nature will
permit;
(b) leave one part with the proprietor of the food business or
any other person from whom the sample was obtained or
a person appearing to be an employee or agent of that
25 proprietor or other person;
(c) submit one of the remaining parts for analysis; and
(d) retain the other remaining part for future comparison.
page 52
Food Bill 2005
Taking and analysis of samples Part 7
Taking of samples Division 1
s. 79
(3) If the division of a sample for analysis into 3 separate parts in
accordance with subsection (2) would in the opinion of the
authorised officer --
(a) so affect or impair the composition or quality of the
5 sample as to render the separate parts unsuitable for
accurate analysis;
(b) result in the separate parts being of an insufficient size
for accurate analysis; or
(c) render the sample in any other way unsuitable for
10 analysis, including a method of analysis prescribed by
the regulations in relation to the food from which the
sample was taken,
the authorised officer may take, in accordance with this section,
as many samples as the authorised officer considers necessary to
15 enable an accurate analysis to be carried out and may deal with
the sample or samples in the manner that is appropriate in the
circumstances.
(4) If a sample of food is taken by an authorised officer in the form
of separate or severable objects, it is not necessary, in dividing
20 that sample into parts in accordance with this section, to divide
any one of those objects, and it is sufficient compliance with
this section if the authorised officer --
(a) takes a number of those objects;
(b) divides the number so taken into the required number of
25 parts so that each part consists of one or more than one
of the separate or severable objects; and
(c) deals with those parts in accordance with this section.
79. Samples to be submitted for analysis
An authorised officer must submit any sample obtained in
30 accordance with this Division for analysis under Division 2
unless no longer of the opinion that the sample ought to be
analysed.
page 53
Food Bill 2005
Part 7 Taking and analysis of samples
Division 2 Procedures relating to analyses
s. 80
Division 2 -- Procedures relating to analyses
80. Compliance with Food Standards Code
A person who carries out an analysis for the purposes of this
Act must comply with any requirements of the Food Standards
5 Code relating to the carrying out of analyses.
81. Certificate of analysis
(1) This section applies to an analysis that is carried out for the
purposes of this Act --
(a) by an approved laboratory;
10 (b) by an approved analyst; or
(c) under the supervision of an approved analyst.
(2) On the completion of an analysis to which this section
applies --
(a) the person in charge of the laboratory at which the
15 analysis was carried out;
(b) the approved analyst who carried out the analysis; or
(c) the approved analyst who supervised the carrying out of
the analysis,
must give the person who asked for the analysis, or an agent of
20 the person, a certificate of analysis that complies with the
requirements of subsection (3).
(3) The certificate of analysis must --
(a) be in the approved form;
(b) be dated and signed by the person in charge of the
25 laboratory at which the analysis was carried out or by
the approved analyst who carried out the analysis or
who supervised the carrying out of the analysis;
(c) contain a written report of the analysis that sets out the
findings; and
page 54
Food Bill 2005
Taking and analysis of samples Part 7
Approval of laboratories Division 3
s. 82
(d) specify the requirements, if any, of the Food Standards
Code relating to the carrying out of the analysis and
certify that the analysis was carried out in accordance
with those requirements.
5 Division 3 -- Approval of laboratories
82. Approval of laboratories
(1) The CEO may approve laboratories for the purposes of carrying
out analyses under this Act.
(2) A person providing or intending to provide analysis services at a
10 laboratory may apply, in the approved form, to the CEO for an
approval of the laboratory under this Division.
(3) The application must be accompanied by --
(a) any information that the CEO requires to determine the
application; and
15 (b) the fee, if any, prescribed by the regulations.
(4) The CEO may after considering an application for approval --
(a) grant the application, with or without conditions; or
(b) refuse the application.
(5) If the CEO grants an application for approval, the CEO must
20 issue the applicant with a written approval that sets out any
conditions to which the approval is subject.
(6) If the CEO refuses an application for approval, the CEO must
give notice of the refusal in writing to the applicant setting out
the reasons for the refusal.
25 83. Term of approval
Except during any period of suspension, an approval of a
laboratory granted under this Division remains in force until
cancelled.
page 55
Food Bill 2005
Part 7 Taking and analysis of samples
Division 3 Approval of laboratories
s. 84
84. Person in charge of approved laboratory to give notice of
certain interests
The person in charge of an approved laboratory must notify the
CEO of any direct or indirect interest in any food business that a
5 person concerned in the management of, or an employee of, the
approved laboratory has as soon as possible after becoming
aware of that interest.
Penalty: a fine of $5 000.
85. Variation of conditions or suspension or cancellation of
10 approval of laboratory
(1) The CEO may vary the conditions of, suspend or cancel the
approval of a laboratory under this Division.
(2) The approval of a laboratory may be suspended or cancelled on
one or more of the following grounds --
15 (a) if the CEO is satisfied that a person providing services at
the laboratory has wilfully or negligently contravened or
failed to comply with any provision of this Act;
(b) if the CEO is satisfied that a person providing services at
the laboratory has contravened a condition to which the
20 approval is subject;
(c) if the CEO is satisfied that a person in charge of,
concerned in the management of, or employed by the
laboratory has a direct or indirect interest in any food
business that, in the opinion of the CEO, could affect the
25 carrying out of the laboratory's functions under this Act;
(d) at the request of the person in charge of the laboratory;
(e) for any other reason that the CEO considers appropriate.
(3) The CEO may vary the conditions of, suspend or cancel the
approval of a laboratory only --
30 (a) after having given the person in charge of the
laboratory --
(i) written reasons for the CEO's intention to vary,
suspend or cancel; and
page 56
Food Bill 2005
Taking and analysis of samples Part 7
Approval of laboratories Division 3
s. 86
(ii) an opportunity to make submissions;
and
(b) after having considered any submissions duly made by
the person.
5 (4) Subsection (3) does not apply to the cancellation of an approval
at the request of the person in charge of the laboratory.
(5) A variation of the conditions of, or the suspension or
cancellation of, the approval of a laboratory --
(a) must be made by notice in writing;
10 (b) must be served on the person in charge of the laboratory;
and
(c) takes effect at the time at which the notice is served or at
a later time specified in the notice.
86. Review of decisions relating to approval
15 (1) An applicant for the approval of a laboratory under this
Division, or the holder of such an approval, may apply to the
State Administrative Tribunal for a review of a decision of the
CEO that relates to any of the following --
(a) the grant or refusal of the application for the approval of
20 a laboratory under this Division;
(b) the imposition of conditions on the approval;
(c) the variation of conditions of the approval;
(d) the suspension or cancellation of the approval.
(2) An application under this section may only be made within
25 28 days after service of --
(a) in the case of an application for the review of a decision
referred to in subsection (1)(a) or (b) -- the relevant
written approval or notice of refusal under section 82; or
(b) in the case of an application for the review of a decision
30 referred to in subsection (1)(c) or (d) -- the relevant
page 57
Food Bill 2005
Part 7 Taking and analysis of samples
Division 4 Approval of analysts
s. 87
notice of the variation, suspension or cancellation under
section 85.
87. List of approved laboratories to be maintained
(1) The CEO must prepare and maintain a list of approved
5 laboratories.
(2) The list must be made publicly available and must be revised at
least annually.
Division 4 -- Approval of analysts
88. Approval of persons to carry out analyses
10 (1) The CEO may approve individuals for the purposes of carrying
out analyses under this Act.
(2) An individual may apply, in the approved form, to the CEO for
an approval under this Division.
(3) The application must be accompanied by --
15 (a) any information that the CEO requires to determine the
application; and
(b) the fee, if any, prescribed by the regulations.
(4) The CEO may after considering an application for approval --
(a) grant the application, with or without conditions; or
20 (b) refuse the application.
(5) If the CEO grants an application for approval, the CEO must
issue the applicant with a written approval that sets out any
conditions to which the approval is subject.
(6) If the CEO refuses an application for approval, the CEO must
25 give notice of the refusal in writing to the applicant setting out
the reasons for the refusal.
page 58
Food Bill 2005
Taking and analysis of samples Part 7
Approval of analysts Division 4
s. 89
89. Term of approval
Except during any period of suspension, an approval of a person
granted under this Division remains in force until cancelled.
90. Approved analyst to give notice of certain interests
5 A person who is an approved analyst must notify the CEO of
any direct or indirect interest in any food business that the
person has as soon as possible after becoming aware of that
interest.
Penalty: a fine of $5 000.
10 91. Variation of conditions or suspension or cancellation of
approval of analyst
(1) The CEO may vary the conditions of, suspend or cancel the
approval of a person under this Division.
(2) The approval of a person under this Division may be suspended
15 or cancelled on one or more of the following grounds --
(a) if the CEO is satisfied that the person has wilfully or
negligently contravened any provision of this Act;
(b) if the CEO is satisfied that the person has contravened a
condition to which the approval is subject;
20 (c) if the CEO is satisfied that the person has a direct or
indirect interest in any food business that, in the opinion
of the CEO, could affect the carrying out of the person's
functions under this Act;
(d) at the request of the person;
25 (e) for any other reason that the CEO considers appropriate.
(3) The CEO may vary the conditions of, suspend or cancel the
approval of a person under this Division only --
(a) after having given the person --
(i) written reasons for the CEO's intention to vary,
30 suspend or cancel; and
page 59
Food Bill 2005
Part 7 Taking and analysis of samples
Division 4 Approval of analysts
s. 92
(ii) an opportunity to make submissions;
and
(b) after having considered any submissions duly made by
the person.
5 (4) Subsection (3) does not apply to the cancellation of an approval
at the request of the person to whom the approval relates.
(5) A variation of the conditions of, or the suspension or
cancellation of, the approval of a person under this Division --
(a) must be made by notice in writing;
10 (b) must be served on the person; and
(c) takes effect at the time at which the notice is served or at
a later time specified in the notice.
92. Review of decisions relating to approval
(1) An applicant for an approval under this Division, or the holder
15 of such an approval, may apply to the State Administrative
Tribunal for a review of a decision of the CEO that relates to
any of the following --
(a) the grant or refusal of the application for the approval
under this Division;
20 (b) the imposition of conditions on the approval;
(c) the variation of conditions of the approval;
(d) the suspension or cancellation of the approval.
(2) An application under this section may only be made within
28 days after service of --
25 (a) in the case of an application for the review of a decision
referred to in subsection (1)(a) or (b) -- the relevant
written approval or notice of refusal under section 88; or
(b) in the case of an application for the review of a decision
referred to in subsection (1)(c) or (d) -- the relevant
30 notice of the variation, suspension or cancellation under
section 91.
page 60
Food Bill 2005
Taking and analysis of samples Part 7
Approval of analysts Division 4
s. 93
93. List of approved analysts to be maintained
(1) The CEO must prepare and maintain a list of approved analysts.
(2) The list must be made publicly available and must be revised at
least annually.
page 61
Food Bill 2005
Part 8 Auditing
Division 1 Approval of food safety auditors
s. 94
Part 8 -- Auditing
Division 1 -- Approval of food safety auditors
94. Approval of food safety auditors
(1) The CEO may authorise a person who is a member of staff, or
5 approve any other individual, to be a food safety auditor for the
purposes of this Act if the CEO is satisfied that the person is
competent to carry out the functions of a food safety auditor
having regard to --
(a) the person's technical skills and experience; and
10 (b) any guidelines relating to competency criteria approved
by the CEO.
(2) An individual may apply, in the approved form, to the CEO for
an approval under this Division.
(3) The application must be accompanied by --
15 (a) any information that the CEO requires to determine the
application; and
(b) the fee, if any, prescribed by the regulations.
(4) The CEO may after considering an application for approval --
(a) grant the application, with or without conditions; or
20 (b) refuse the application.
(5) If the CEO grants an application for approval, the CEO must
issue the applicant with a written approval that sets out any
conditions to which the approval is subject.
(6) If the CEO refuses an application for approval, the CEO must
25 give notice of the refusal in writing to the applicant setting out
the reasons for the refusal.
page 62
Food Bill 2005
Auditing Part 8
Approval of food safety auditors Division 1
s. 95
95. Term of approval
Except during any period of suspension, an approval granted
under this Division remains in force for the period specified in
the approval unless sooner cancelled.
5 96. Food safety auditor to give notice of certain interests
(1) A food safety auditor must notify the CEO of any direct or
indirect interest in any food business that the food safety auditor
has as soon as possible after becoming aware of that interest.
Penalty: a fine of $5 000.
10 (2) Payment to a food safety auditor for performing the functions of
a food safety auditor does not constitute a direct or indirect
interest in a food business for the purposes of subsection (1).
97. Variation of conditions or suspension or cancellation of
approval of auditor
15 (1) The CEO may vary the conditions of, suspend or cancel the
approval of a person under this Division.
(2) The approval of a person may be suspended or cancelled on one
or more of the following grounds --
(a) if the CEO is satisfied that the person has wilfully or
20 negligently contravened any provision of this Act;
(b) if the CEO is satisfied that the person has contravened a
condition to which the approval is subject;
(c) if the CEO is satisfied that the person has not
competently carried out any duty of a food safety
25 auditor under this Act;
(d) if the CEO is satisfied that the person has a direct or
indirect interest in any food business that, in the opinion
of the CEO, could affect the performance of the person's
functions under this Act;
30 (e) at the request of the person;
(f) for any other reason that the CEO considers appropriate.
page 63
Food Bill 2005
Part 8 Auditing
Division 1 Approval of food safety auditors
s. 98
(3) Payment to a food safety auditor for performing the functions of
a food safety auditor does not constitute a direct or indirect
interest in a food business for the purposes of subsection (2)(d).
(4) The CEO may vary the conditions of, suspend or cancel the
5 approval of a person under this Division only --
(a) after having given the person --
(i) written reasons for the CEO's intention to vary,
suspend or cancel; and
(ii) an opportunity to make submissions;
10 and
(b) after having considered any submissions duly made by
the person.
(5) Subsection (4) does not apply to the cancellation of an approval
at the request of the person to whom the approval relates.
15 (6) A variation of the conditions of, or the suspension or
cancellation of, the approval of a person under this Division --
(a) must be by notice in writing;
(b) must be served on the person to whom the approval
relates; and
20 (c) takes effect on the day on which the notice is served or
on a later day specified in the notice.
98. Review of decisions relating to approvals
(1) An applicant for an approval under this Division, or the holder
of such an approval, may apply to the State Administrative
25 Tribunal for a review of a decision of the CEO that relates to
any of the following --
(a) the grant or refusal of the application for the approval
under this Division;
(b) the imposition of conditions on the approval;
30 (c) the variation of conditions of the approval;
(d) the suspension or cancellation of the approval.
page 64
Food Bill 2005
Auditing Part 8
Auditing and reporting requirements Division 2
s. 99
(2) Without limiting subsection (1), an applicant for an approval
under this Division, or the holder of such an approval, may
apply to the CEO for a review of a decision of a person or body
acting under a delegation given by the CEO, if the decision
5 relates to any of the following --
(a) the grant or refusal of the application for the approval
under this Division;
(b) the imposition of conditions on the approval;
(c) the variation of conditions of the approval;
10 (d) the suspension or cancellation of the approval.
(3) An application under this section may only be made within
28 days after service of --
(a) in the case of an application for the review of a decision
referred to in subsection (1)(a) or (b) or (2)(a) or (b) --
15 the relevant written approval or notice of refusal under
section 94; or
(b) in the case of an application for the review of a decision
referred to in subsection (1)(c) or (d) or (2)(c) or (d) --
the relevant notice of the variation, suspension or
20 cancellation under section 97.
Division 2 -- Auditing and reporting requirements
99. Food safety programs and auditing requirements
(1) The proprietor of a food business must ensure that any
requirement imposed by the regulations in relation to the
25 preparation, implementation, maintenance or monitoring of a
food safety program for the food business is complied with.
Penalty:
(a) for an individual -- a fine of $20 000;
(b) for a body corporate -- a fine of $100 000.
30 (2) The proprietor of a food business must ensure that any food
safety program required by the regulations to be prepared in
page 65
Food Bill 2005
Part 8 Auditing
Division 2 Auditing and reporting requirements
s. 100
relation to the food business is audited at least as frequently as
is determined under section 100(1), or as redetermined under
section 103, in relation to the food business.
Penalty:
5 (a) for an individual -- a fine of $20 000;
(b) for a body corporate -- a fine of $100 000.
100. Priority classification system and frequency of auditing
(1) The appropriate enforcement agency must determine --
(a) the priority classification of individual food businesses
10 for the purposes of the application of any requirements
of the regulations relating to food safety programs; and
(b) the frequency of auditing of any food safety programs
required by the regulations to be prepared in relation to
the food businesses.
15 (2) The determination must be made having regard to a priority
classification system for types of food businesses approved by
the CEO.
(3) The appropriate enforcement agency must give written
notification to the proprietor of a food business of --
20 (a) the priority classification it has determined for the food
business;
(b) the frequency of auditing of any food safety programs
required by the regulations to be prepared in relation to
the food business; and
25 (c) the date by which the food business must have
implemented any food safety program required by the
regulations to be prepared in relation to the food
business.
(4) The appropriate enforcement agency may change the priority
30 classification of an individual food business if the agency
believes that the classification is inappropriate for any reason,
page 66
Food Bill 2005
Auditing Part 8
Auditing and reporting requirements Division 2
s. 101
including as a result of changes made to the conduct of the food
business.
(5) The appropriate enforcement agency must give written
notification to the proprietor of a food business of any change in
5 the priority classification of the food business under
subsection (4).
101. Duties of food safety auditors
A food safety auditor has the following duties --
(a) having regard to the requirements of the regulations, to
10 carry out audits of any food safety programs required by
the regulations to be prepared in relation to food
businesses;
(b) to carry out any necessary follow-up action, including
further audits, if necessary, to determine whether action
15 has been taken to remedy any deficiencies of any such
food safety program identified in an audit;
(c) to carry out assessments of food businesses to ascertain
their compliance with requirements of the Food Safety
Standards;
20 (d) to report in accordance with section 102.
102. Reporting requirements
(1) A food safety auditor must report in writing to the appropriate
enforcement agency the results of any audit or assessment
carried out by the food safety auditor for the purposes of
25 this Act.
(2) A report under subsection (1) must --
(a) be in the approved form;
(b) be submitted to the appropriate enforcement agency
within 21 days after the completion of the audit or
30 assessment; and
page 67
Food Bill 2005
Part 8 Auditing
Division 2 Auditing and reporting requirements
s. 102
(c) take account of any action taken before the submission
of the report to remedy any deficiency identified by the
food safety auditor.
(3) A food safety auditor must indicate in a report of an audit under
5 subsection (1) --
(a) whether or not the food safety auditor is of the opinion
that the food business is being carried on in compliance
with the requirements of the regulations relating to food
safety programs; and
10 (b) any such requirements that the food safety auditor is of
the opinion are being contravened in relation to the food
business and the manner in which they are being
contravened.
(4) A food safety auditor must indicate in a report of an assessment
15 under subsection (1) --
(a) whether or not the food safety auditor is of the opinion
that the food business is being carried on in compliance
with the provisions of the Food Safety Standards; and
(b) any such provisions that the food safety auditor is of the
20 opinion are being contravened in relation to the food
business and the manner in which they are being
contravened.
(5) A food safety auditor must report to the appropriate
enforcement agency any contravention of this Act, the
25 regulations relating to food safety programs, or the Food Safety
Standards that comes to the food safety auditor's attention in the
course of carrying out an audit or assessment for the purposes of
this Act --
(a) that is an imminent and serious risk to the safety of food
30 intended for sale; or
(b) that will cause significant unsuitability of food intended
for sale.
page 68
Food Bill 2005
Auditing Part 8
Auditing and reporting requirements Division 2
s. 103
(6) A report under subsection (5) must be made as soon as possible
but in any event within 24 hours after the contravention comes
to the food safety auditor's attention.
(7) A food safety auditor must report in writing to the appropriate
5 enforcement agency, giving reasons, if the food safety auditor
considers that the priority classification of a food business that
has been audited by the food safety auditor should be changed.
(8) A copy of a report provided to the appropriate enforcement
agency in relation to an audit or assessment must be given to the
10 proprietor of the food business concerned.
103. Redetermination of frequency of auditing
(1) In this section --
"current audit frequency", of a food safety program for a food
business, means the initial audit frequency applicable to a
15 food business within the relevant priority classification or,
if the initial audit frequency has been changed under this
section, the most recent audit frequency applicable under
this section;
"food safety program", for a food business, means the food
20 safety program required by the regulations to be prepared
for the food business;
"priority classification" means a priority classification set out
in the priority classification system referred to in
section 100.
25 (2) A food safety auditor may determine that the audit frequency of
a food safety program for a food business that has been audited
by a food safety auditor be changed from the current audit
frequency applicable to a food business within the relevant
priority classification to another audit frequency.
30 (3) The audit frequency to which the current audit frequency may
be changed must be within the range of audit frequencies
appropriate for food businesses within the relevant priority
classification referred to in subsection (2).
page 69
Food Bill 2005
Part 8 Auditing
Division 3 Other matters relating to food safety auditors
s. 104
(4) A food safety auditor must have regard to the following matters
in making such a determination --
(a) the compliance history of the food business concerned in
relation to any requirements of the regulations regarding
5 food safety programs and the requirements of the Food
Safety Standards;
(b) any audit compliance history relevant to food safety
programs established by the food business concerned
before the commencement of this subsection.
10 Division 3 -- Other matters relating to food safety auditors
104. Certificates of authority of food safety auditors
(1) The CEO must provide each food safety auditor with a
certificate of authority as a food safety auditor.
(2) The certificate of authority must --
15 (a) state that it is issued under this Act;
(b) state the name of the person to whom it is issued and
bear a photograph or digital image of that person and the
person's signature;
(c) state the date, if any, on which it expires;
20 (d) specify any conditions to which the person's approval as
a food safety auditor is subject; and
(e) bear the signature of the CEO.
105. List of food safety auditors to be maintained
(1) The CEO must prepare and maintain a list of food safety
25 auditors.
(2) The list must be made publicly available and must be revised at
least annually.
page 70
Food Bill 2005
Auditing Part 8
Other matters relating to food safety auditors Division 3
s. 106
106. Obstructing, impersonating or threatening food safety
auditors
(1) A person must not resist, obstruct or attempt to obstruct a food
safety auditor in the performance of the food safety auditor's
5 functions under this Act.
Penalty: a fine of $10 000.
(2) A person must not falsely represent, by words or conduct, that
the person is a food safety auditor.
Penalty: a fine of $10 000.
10 (3) A person must not threaten or intimidate a food safety auditor in
the performance of the food safety auditor's functions under
this Act.
Penalty: a fine of $10 000.
page 71
Food Bill 2005
Part 9 Registration of food businesses
s. 107
Part 9 -- Registration of food businesses
107. Notification of conduct of food businesses
(1) The proprietor of a food business must not conduct the food
business at any premises unless the proprietor has given written
5 notification in respect of those premises to the appropriate
enforcement agency, in the approved form, of the specified
information.
Penalty:
(a) for an individual -- a fine of $10 000;
10 (b) for a body corporate -- a fine of $50 000.
(2) In subsection (1) --
"specified information" means the information specified in the
Food Safety Standards that is to be notified to the
appropriate enforcement agency before the food business is
15 conducted.
(3) Subject to subsection (4), the notification must be accompanied
by the fee, if any, prescribed by the regulations.
(4) If the appropriate enforcement agency is a local government --
(a) any fee prescribed by the regulations for the purposes of
20 subsection (3) does not apply to notification given to the
agency under this section; and
(b) the fee for notification given to the agency under this
section may be imposed and recovered by the agency
under the Local Government Act 1995 Part 6 Division 5
25 Subdivision 2.
108. Exemption in relation to notification of information
Section 22 (to the extent to which it requires notification of the
information referred to in section 107) and section 107 do not
apply to the conduct at any premises of the following food
30 businesses --
(a) any food business that is not required by the Food Safety
Standards to notify that information;
page 72
Food Bill 2005
Registration of food businesses Part 9
s. 109
(b) any food business that is registered in respect of those
premises under this Act or under a law prescribed by the
regulations.
109. Conduct of unregistered food businesses
5 (1) The proprietor of a food business, other than an exempted food
business, must not conduct the food business at any premises
unless the food business is registered in respect of those
premises under this Part.
Penalty:
10 (a) for an individual -- a fine of $10 000;
(b) for a body corporate -- a fine of $50 000.
(2) In subsection (1) --
"exempted food business" means a food business, or a food
business within a class of food businesses, prescribed by
15 the regulations for the purposes of this section.
110. Registration of food businesses
(1) The appropriate enforcement agency may register a food
business in respect of any premises for the purposes of this Part.
(2) The proprietor of a food business may apply, in the approved
20 form, to the appropriate enforcement agency for the registration
of the food business in respect of any premises under this Part.
(3) The application must be accompanied by --
(a) if required by the appropriate enforcement agency -- the
design and fit-out specifications, in a form approved by
25 the appropriate enforcement agency, of the premises, if
food is to be handled in the course of conducting the
food business at those premises;
(b) any other information that the appropriate enforcement
agency requires to determine the priority classification
30 of the food business; and
page 73
Food Bill 2005
Part 9 Registration of food businesses
s. 111
(c) subject to subsection (4), the fee, if any, prescribed by
the regulations.
(4) If the appropriate enforcement agency is a local government --
(a) any fee prescribed by the regulations for the purposes of
5 subsection (3)(c) does not apply to an application to the
agency under this section; and
(b) the fee for an application to the agency under this
section may be imposed and recovered by the agency
under the Local Government Act 1995 Part 6 Division 5
10 Subdivision 2.
(5) The appropriate enforcement agency may, after considering an
application for registration --
(a) grant the application, with or without conditions; or
(b) refuse the application.
15 (6) If the appropriate enforcement agency grants an application for
registration, the appropriate enforcement agency must issue the
applicant with a certificate of registration, in the approved form,
that specifies the premises in respect of which the registration is
granted and sets out any conditions to which the registration is
20 subject.
(7) A condition to which the registration is subject may relate only
to compliance with this Act.
(8) If the appropriate enforcement agency refuses an application for
the registration of a food business in respect of any premises,
25 the appropriate enforcement agency must give notice of the
refusal in writing to the applicant setting out the reasons for the
refusal.
111. Term of approval
The registration of a food business in respect of any premises
30 under this Part remains in force until cancelled.
page 74
Food Bill 2005
Registration of food businesses Part 9
s. 112
112. Variation of conditions or cancellation of registration of
food businesses
(1) The appropriate enforcement agency may vary the conditions
of, or cancel, the registration of a food business in respect of
5 any premises under this Part.
(2) The registration of a food business in respect of any premises
may be cancelled on one or more of the following grounds --
(a) any annual or other fee --
(i) prescribed by the regulations in relation to the
10 registration of the food business in respect of
those premises has not been paid by the time the
regulations require the payment to be made; or
(ii) if subsection (3) applies -- imposed by the
appropriate enforcement agency in relation to the
15 registration of the food business in respect of
those premises has not been paid by the time the
agency requires the payment to be made;
(b) the food business has ceased to be conducted at those
premises;
20 (c) at the request of the holder of the certificate of
registration that specifies those premises.
(3) If the appropriate enforcement agency is a local government,
then for the purposes of subsection (2)(a) in relation to the
registration of a food business in respect of any premises --
25 (a) any annual or other fee prescribed by the regulations for
the purposes of that provision does not apply to the
registration of the food business in respect of those
premises by the agency; and
(b) an annual or other fee in relation to the registration of
30 the food business in respect of those premises by the
agency --
(i) may be imposed and recovered by the agency
under the Local Government Act 1995 Part 6
Division 5 Subdivision 2; and
page 75
Food Bill 2005
Part 9 Registration of food businesses
s. 113
(ii) must be paid by the time the agency requires the
payment to be made.
(4) The appropriate enforcement agency may vary the conditions
of, or cancel, the registration of a food business in respect of
5 any premises only --
(a) after having given the holder of the certificate of
registration that specifies those premises --
(i) written reasons for the agency's intention to vary
or cancel; and
10 (ii) an opportunity to make submissions;
and
(b) after having considered any submissions duly made by
that person.
(5) Subsection (4) does not apply to the cancellation of the
15 registration at the request of the holder of the certificate of
registration that specifies the relevant premises.
(6) A variation of the conditions of, or the cancellation of, the
registration of a food business in respect of any premises --
(a) must be by notice in writing;
20 (b) must be served on the holder of the certificate of
registration that specifies those premises; and
(c) takes effect on the day on which the notice is served or
on a later day specified in the notice.
113. Notification of certain changes to registered food businesses
25 (1) The proprietor of a food business that is registered in respect of
any premises under this Part must give written notification, in
the approved form, to the appropriate enforcement agency of
any of the following changes to the food business at those
premises --
30 (a) the food business ceases to be conducted at those
premises;
page 76
Food Bill 2005
Registration of food businesses Part 9
s. 114
(b) the food business is sold;
(c) any change is made to the activities carried out for the
purposes of the food business that is likely to affect its
priority classification.
5 (2) The proprietor must give the notification required under
subsection (1) within 7 days after the relevant change takes
place.
Penalty:
(a) for an individual -- a fine of $20 000;
10 (b) for a body corporate -- a fine of $100 000.
114. Review of decisions relating to registration
(1) An applicant for the registration of a food business in respect of
any premises under this Part, or the holder of a certificate of
registration that specifies any premises, may apply to the State
15 Administrative Tribunal for a review of a decision of the
appropriate enforcement agency that relates to any of the
following --
(a) the grant or refusal of the application for registration of
the food business in respect of those premises under this
20 Part;
(b) the imposition of conditions on the registration in
respect of those premises;
(c) the variation of conditions of the registration in respect
of those premises;
25 (d) the cancellation of the registration in respect of those
premises.
(2) An application under this section may only be made within
28 days after service of --
(a) in the case of an application for the review of a decision
30 referred to in subsection (1)(a) or (b) -- the relevant
certificate of registration or notice of refusal under
section 110; or
page 77
Food Bill 2005
Part 9 Registration of food businesses
s. 115
(b) in the case of an application for the review of a decision
referred to in subsection (1)(c) or (d) -- the relevant
notice of the variation or cancellation under section 112.
115. Register of food businesses to be maintained
5 Each enforcement agency must prepare and maintain a list of --
(a) food businesses notified to the agency in respect of any
premises under section 107; and
(b) food businesses registered by the agency in respect of
any premises under section 110.
page 78
Food Bill 2005
Administration Part 10
CEO Division 1
s. 116
Part 10 -- Administration
Division 1 -- CEO
116. Functions of the CEO
(1) The CEO has the functions in relation to the administration of
5 this Act that are conferred or imposed on the CEO by or under
this Act.
(2) In particular, the CEO has the following functions in relation to
the administration of this Act --
(a) to take measures to ensure that this Act is complied
10 with;
(b) to provide advice or recommendations to the Minister
concerning possible changes to this Act or to the
regulations --
(i) that the CEO considers appropriate or necessary;
15 or
(ii) that are proposed for consideration by Food
Standards Australia New Zealand.
117. CEO may delegate
(1) Subject to subsection (2), the CEO may delegate any power or
20 duty of the CEO under another provision of this Act to --
(a) a member of staff;
(b) an authorised officer;
(c) a local government; or
(d) the holder of an office prescribed by the regulations.
25 (2) The CEO may delegate a power or duty of the CEO under the
following provisions of this Act only to a member of staff --
(a) section 119;
(b) section 122(2);
(c) section 123;
page 79
Food Bill 2005
Part 10 Administration
Division 2 Functions of enforcement agencies
s. 118
(d) Part 4;
(e) Part 7 Division 3;
(f) Part 7 Division 4;
(g) Part 8.
5 (3) A delegation must be in writing signed by the CEO.
(4) A delegation may expressly authorise the delegate to further
delegate the power or duty to another person referred to in
subsection (1).
(5) Subsection (4) does not apply to a power or duty referred to in
10 subsection (2).
(6) A power or duty of the CEO must not be delegated under this
section to another enforcement agency without the written
consent of the enforcement agency.
(7) A person exercising or performing a power or duty as
15 authorised under this section is taken to do so in accordance
with the terms of the delegation unless the contrary is shown.
(8) Nothing in this section limits the ability of the CEO to act
through a member of staff or agent.
Division 2 -- Functions of enforcement agencies
20 118. Functions of enforcement agencies and delegation
(1) An enforcement agency has the functions in relation to the
administration of this Act that are conferred or imposed on the
agency by or under this Act or are delegated to the agency under
this Act.
25 (2) A function conferred or imposed on an enforcement agency may
be delegated --
(a) if the enforcement agency is the CEO -- in accordance
with section 117; or
page 80
Food Bill 2005
Administration Part 10
Functions of enforcement agencies Division 2
s. 119
(b) if the enforcement agency is a local government or a
person or body, or a person or body within a class of
persons or bodies, prescribed by the regulations --
subject to subsections (3) and (4), in accordance with the
5 regulations.
(3) Without limiting the Interpretation Act 1984 section 59, the
performance by a delegate of an enforcement agency of a
function delegated under subsection (2)(b) is subject to --
(a) any condition or limitation imposed under section 119
10 on the performance by the enforcement agency of the
function; and
(b) any guidelines that the enforcement agency is required
to adopt under section 120 in performing the function.
(4) If --
15 (a) regulations referred to in subsection (2)(b) expressly
authorise a delegated function of an enforcement agency
to be further delegated; and
(b) the delegated function is further delegated to a person or
body in accordance with those regulations,
20 subsection (3) applies to the performance by the person or body
of that function as if the function were performed and delegated
as described in that subsection.
119. Conditions on performance of functions by enforcement
agencies
25 The CEO, after consultation with an enforcement agency (other
than the CEO), may, in writing, impose conditions or limitations
on the performance of functions under this Act by the
enforcement agency.
page 81
Food Bill 2005
Part 10 Administration
Division 2 Functions of enforcement agencies
s. 120
120. Performance of functions by enforcement agencies and
authorised officers
(1) The CEO may adopt guidelines, including national guidelines,
relating to the performance of the CEO's functions under this
5 Act and may require other enforcement agencies and authorised
officers to adopt the guidelines adopted by the CEO in
performing their functions under this Act.
(2) Without limiting subsection (1), guidelines may be adopted by
the CEO under that subsection with modifications made by the
10 CEO.
(3) In subsection (1) --
"national guidelines" means guidelines prepared for the
purposes of this section by Food Standards Australia
New Zealand.
15 121. Reports by and about enforcement agencies
(1) An enforcement agency (other than the CEO) must report to the
CEO, at the intervals that the CEO requires, on the performance
of functions under this Act by persons employed or engaged by
the agency.
20 (2) In addition to any report required under subsection (1), an
enforcement agency must forward to the CEO details of any
proceedings for an offence under this Act taken by an officer of
the agency within one month after the proceedings have been
finally dealt with.
25 (3) The accountable authority of the department of the Public
Service principally assisting in the administration of this Act
must include in the annual report submitted under the Financial
Management Act 2006 Part 5 a report on the performance by
enforcement agencies (including the CEO) of functions under
30 this Act.
page 82
Food Bill 2005
Administration Part 10
Appointment of authorised officers Division 3
s. 122
Division 3 -- Appointment of authorised officers
122. Appointment of authorised officers
(1) An enforcement agency may appoint a person to be an
authorised officer for the purposes of this Act if --
5 (a) the enforcement agency, having regard to any guidelines
issued by the CEO under subsection (2), considers the
person has appropriate qualifications and experience to
perform the functions of an authorised officer; or
(b) the person holds office as an environmental health
10 officer under the Health Act 1911.
(2) The CEO may issue guidelines that describe the qualifications
and experience that are appropriate for a person to be appointed
as an authorised officer.
(3) Each enforcement agency must prepare and maintain a list of
15 authorised officers appointed by the agency.
123. Certificates of authority
(1) An enforcement agency must provide each authorised officer
appointed by the agency with a certificate of authority as an
authorised officer.
20 (2) The certificate of authority must --
(a) state that it is issued under this Act;
(b) state the name of the person to whom it is issued and
bear a photograph or digital image of that person and the
person's signature;
25 (c) state the date, if any, on which it expires;
(d) specify any conditions or limitations to which the
person's authority is subject; and
(e) bear the signature of the person by whom it is issued and
state the capacity in which the person is acting in issuing
30 the certificate.
page 83
Food Bill 2005
Part 10 Administration
Division 4 Advisory committees
s. 124
(3) An authorised officer is required to produce the certificate of
authority --
(a) if asked to do so by the proprietor of a food business
whose premises are entered by the authorised officer; or
5 (b) if asked to do so by a person whom the authorised
officer requires to produce anything or to answer any
question.
Division 4 -- Advisory committees
124. Establishment and functions of advisory committees
10 (1) The Minister may establish advisory committees to assist the
CEO in the performance of the CEO's functions under this Act.
(2) The Minister may determine --
(a) the term of office of members of an advisory committee;
(b) the procedure of an advisory committee; and
15 (c) after consultation with the Minister for Public Sector
Management -- the remuneration and allowances to be
paid to the members of an advisory committee.
(3) An advisory committee is to consist of members appointed from
persons having expertise in one or more of the following
20 areas --
(a) the food industry;
(b) public health;
(c) the interests of consumers;
(d) the enforcement of food legislation.
25 (4) In addition the Minister may appoint as members of an advisory
committee persons having expertise in nutrition, toxicology;
microbiology; and food technology an such other persons as the
Minister considers have appropriate expertise, qualification or
experience as will enable them to make a valuable contribution
30 to the advisory committee.
page 84
Food Bill 2005
Procedural and evidentiary provisions Part 11
s. 125
Part 11 -- Procedural and evidentiary provisions
125. Institution of proceedings
(1) Proceedings for an offence under this Act may only be
instituted --
5 (a) unless paragraph (b) applies -- within 12 months after
the date on which the offence is alleged to have been
committed; or
(b) if the proceedings are in respect of a sample of food --
within 6 months after the date on which the sample was
10 obtained.
(2) The court may extend the time referred to in subsection (1) for
the institution of proceedings.
126. Infringement notices
(1) In this section --
15 "designated officer" means an authorised officer designated by
an enforcement agency under subsection (13) to be a
designated officer;
"prescribed" means prescribed by the regulations.
(2) A designated officer who has reason to believe that a person has
20 committed a prescribed offence under this Act may, within
28 days after the alleged offence is believed to have been
committed, give an infringement notice to the alleged offender.
(3) An infringement notice must be in the prescribed form and
must --
25 (a) contain a description of the alleged offence;
(b) advise that, if the alleged offender does not wish to be
prosecuted for the alleged offence in a court, the amount
of money specified in the notice as being the modified
penalty for the offence may be paid to a designated
30 officer within a period of 28 days after the giving of the
notice; and
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Food Bill 2005
Part 11 Procedural and evidentiary provisions
s. 126
(c) inform the alleged offender as to who are designated
officers for the purposes of receiving payment of
modified penalties.
(4) In an infringement notice the amount specified as being the
5 modified penalty for the offence referred to in the notice must
be the amount that was the prescribed modified penalty at the
time the alleged offence is believed to have been committed.
(5) The modified penalty that may be prescribed for an offence is
not to exceed 20% of the maximum penalty that could be
10 imposed for that offence by a court.
(6) A designated officer may, in a particular case, extend the period
of 28 days within which the modified penalty may be paid, and
the extension may be allowed whether or not the period of
28 days has elapsed.
15 (7) A designated officer may, whether or not the modified penalty
has been paid, withdraw an infringement notice by sending to
the alleged offender a notice in the prescribed form stating that
the infringement notice has been withdrawn.
(8) If an infringement notice is withdrawn after the modified
20 penalty has been paid, the amount paid must be refunded.
(9) Subsection (10) applies if the modified penalty specified in an
infringement notice has been paid within 28 days or any further
time that is allowed and the notice has not been withdrawn.
(10) If this subsection applies, it prevents the bringing of
25 proceedings and the imposition of penalties to the same extent
that they would be prevented if the alleged offender had been
convicted by a court of, and punished for, the alleged offence.
(11) Payment of a modified penalty is not to be regarded as an
admission for the purposes of any proceedings, whether civil or
30 criminal.
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Food Bill 2005
Procedural and evidentiary provisions Part 11
s. 127
(12) Unless subsection (8) requires it to be refunded, an amount paid
as a modified penalty must be dealt with as if it were a penalty
imposed by a court as a penalty for an offence.
(13) An enforcement agency may, in writing, designate authorised
5 officers appointed by the agency under Part 10 Division 3 to be
designated officers for the purposes of subsection (2), (3), (6)
or (7) or for the purposes of 2 or more of those subsections, but
a person who is a designated officer for the purposes of giving
infringement notices under subsection (2) is not eligible to be a
10 designated officer for the purposes of any of the other
subsections.
127. Offences by employees -- liability of employer
(1) If an employee contravenes any provision of this Act, the
employer is taken to have contravened the same provision
15 whether or not the employee contravened the provision --
(a) without the employer's authority; or
(b) contrary to the employer's orders or instructions.
(2) It is a defence in proceedings against an employer for such a
contravention if it is established that the employer --
20 (a) had no knowledge of the contravention; and
(b) could not, by the exercise of due diligence, have
prevented the contravention.
(3) An employer may be proceeded against and convicted under a
provision in accordance with this section whether or not the
25 employee has been proceeded against or convicted under that
provision.
128. Offences by bodies corporate -- liability of directors and
others
(1) In this section --
30 "offence" means an offence under this Act;
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Food Bill 2005
Part 11 Procedural and evidentiary provisions
s. 129
"officer", of a body corporate, means a person who --
(a) is a director of the body corporate; or
(b) is concerned in its management.
(2) If a body corporate is charged with an offence, each person who
5 was an officer of the body corporate at the time of the alleged
offence may also be charged with the offence.
(3) If a body corporate and an officer are charged as permitted by
subsection (2) and the body corporate is found guilty of the
offence, the officer is taken to have also committed the offence,
10 subject to subsection (6).
(4) If a body corporate commits an offence, then although the body
corporate is not charged with the offence, each person who was
an officer of the body corporate at the time of the offence may
be charged with the offence.
15 (5) If an officer is charged as permitted by subsection (4) and it is
proved that the body corporate committed the offence, the
officer is taken to have committed the offence, subject to
subsection (6).
(6) If under this section an officer is charged with an offence, it is a
20 defence to prove that --
(a) the offence was committed without the officer's consent
or connivance; and
(b) the officer took all measures to prevent the commission
of the offence that he or she could reasonably be
25 expected to have taken, having regard to the officer's
functions and to all the circumstances.
129. Liability of employees and agents
(1) Except as provided by subsection (2), it is not a defence in
proceedings for an offence under this Act that the accused
30 person was, at the time of the commission of the offence, an
employee or agent of another person.
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Food Bill 2005
Procedural and evidentiary provisions Part 11
s. 130
(2) In any proceedings for an offence under this Act, it is a defence
for the accused person to prove that the accused person was
under the personal supervision of --
(a) the proprietor of the food business, or the owner or
5 person in charge of the place or vehicle, in relation to
which the offence was committed; or
(b) another person representing that proprietor, owner or
person in charge.
130. No defence to allege deterioration of sample
10 In any proceedings for an offence under this Act, it is not a
defence for a person to allege that any part of a sample retained
for future comparison with a sample that has been analysed has
from natural causes deteriorated, perished or undergone any
material change in its constitution.
15 131. Onus to prove certain matters on accused person
(1) In any proceedings for an offence under this Act against an
accused person who was responsible for making a false
statement on a package or in an advertisement relating to the
origin or composition of the food in question or the therapeutic
20 or nutritive properties of the food, the onus of proving the
correctness of the statement is on the accused person.
(2) In subsection (1) --
"false statement" means a statement that is alleged to have
caused the food to be falsely described.
25 132. Presumption
In any proceedings for an offence under this Act, it is presumed
until, on the balance of probabilities, the contrary is proved
that --
(a) any substance or thing capable of being used as food
30 that was sold or prepared for sale or conveyed or
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Food Bill 2005
Part 11 Procedural and evidentiary provisions
s. 133
intended for sale was sold, prepared, conveyed or
intended for sale for human consumption;
(b) any substance or thing capable of being used as food is
not for human consumption if it is prominently marked
5 as not being for human consumption, or with words to
that effect;
(c) food that is part of a batch, lot or consignment of food of
the same class or description is representative of all of
the food in that batch, lot or consignment;
10 (d) each part of a sample of food divided for the purpose of
analysis under this Act is of uniform composition with
every other part of that sample;
(e) a person who sold food in the conduct of a food business
and was not the proprietor of the food business sold the
15 food as the agent of the proprietor;
(f) a person who appears from any statement on a package
containing food for sale to have imported,
manufactured, packed or prepared the food is the
importer, manufacturer, packager or preparer of the
20 food, as the case may be;
(g) food that has been sold to a consumer has been sold at
some time by any person who respectively imported,
manufactured, prepared or packed the food; and
(h) a signature purporting to be that of the CEO, a member
25 of staff, an authorised officer, the person in charge of an
approved laboratory or an approved analyst is that
signature.
133. Certificate evidence and evidence of analysts
(1) A certificate of the result of an analysis obtained by the accused
30 person or the prosecution in proceedings for an offence under
this Act is admissible in any such proceedings and evidence of
the facts stated in it if --
(a) the certificate was issued in accordance with section 81;
and
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Food Bill 2005
Procedural and evidentiary provisions Part 11
s. 134
(b) a copy of the certificate is served by the person who
obtained it on the other party to the proceedings at least
7 days before the hearing.
(2) An analyst who carried out an analysis in relation to which a
5 certificate is produced as evidence in proceedings as referred to
in subsection (1) need not be called as a witness in the
proceedings by the party producing the certificate unless the
court hearing the proceedings so orders (whether on application
made to it or otherwise).
10 (3) In any proceedings for an offence under this Act, the
prosecution cannot rely on an analysis as evidence for the
purposes of those proceedings unless the person who carried out
the analysis --
(a) is employed or engaged by an approved laboratory;
15 (b) is an approved analyst; or
(c) was acting under the supervision of an approved analyst.
134. Documentary evidence of certain matters
In any proceedings for an offence under this Act --
(a) a document purporting to be a copy of any registration,
20 approval, order, notice or authority under this Act is
evidence of that registration, approval, order, notice or
authority;
(b) a document purporting to be signed by the CEO
certifying that at a specified time or during a specified
25 period --
(i) there was or was not in force any registration,
approval, order, notice or authority in relation to
a specified person or persons or specified
premises; or
page 91
Food Bill 2005
Part 11 Procedural and evidentiary provisions
s. 135
(ii) that a registration, approval, order, notice or
authority was or was not subject to specified
conditions,
is evidence of the matters contained in the document;
5 and
(c) a document purporting to be signed by the CEO
certifying --
(i) as to the receipt or otherwise of any notice,
application or payment; or
10 (ii) that any amount of fees or other money is
payable under this Act by a specified person and
has not been paid at the date of the certificate,
is evidence of the matters contained in the document.
135. Power of court to order further analysis
15 (1) If in any proceedings for an offence under this Act the court is
satisfied that there is a disagreement between the evidence of
the analysts for the parties to the proceedings, the court may
order that the part or parts of any sample retained under
section 78 be sent by the enforcement agency concerned to an
20 analyst specified by the court or agreed to by the parties.
(2) An order may be made under subsection (1) at the request of
any party to the proceedings or on the court's own motion.
(3) An analyst who is sent a part or parts of a sample for analysis
under this section must make an analysis of that part or those
25 parts for the information of the court.
(4) Subject to section 137, the cost of an analysis under this section
must be borne by the enforcement agency concerned.
136. Disclosure by witnesses
(1) In any proceedings for an offence under this Act, a witness for
30 the prosecution is not compelled to disclose the fact that the
witness received information, the nature of the information
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Food Bill 2005
Procedural and evidentiary provisions Part 11
s. 137
received or the name of the person from whom the information
was received.
(2) An authorised officer appearing as a witness in any proceedings
is not compelled to produce any document containing any
5 confidential matter made or received in his or her capacity as an
authorised officer.
(3) Despite subsections (1) and (2), a court hearing proceedings for
an offence under this Act may order the disclosure of any
matter, or the production of a document, referred to in those
10 subsections if the court considers that it is necessary in the
interests of justice.
137. 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
15 power to make the orders that 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 anything the subject of those
proceedings.
20 138. Court may order forfeiture
A court that convicts a person of an offence under this Act may
order the forfeiture to the State of anything that was used in the
commission of the offence.
139. Court may order corrective advertising
25 A court that convicts a person (in this section called the
"convicted person") of an offence under Part 3, may make one
or both of the following orders --
(a) an order requiring the convicted person to disclose in a
particular manner to the public, to a particular person or
30 to a particular class of persons specified information, or
information of a specified kind, which the convicted
page 93
Food Bill 2005
Part 11 Procedural and evidentiary provisions
s. 139
person possesses or to which the convicted person has
access;
(b) an order requiring the convicted person to publish, at his
or her own expense, in a manner and at times specified
5 in the order, advertisements the terms of which are
specified in the order.
page 94
Food Bill 2005
Miscellaneous Part 12
s. 140
Part 12 -- Miscellaneous
140. Fees and charges may be imposed and recovered by local
governments that are enforcement agencies
(1) Without limiting sections 107(4)(b), 110(4)(b) or 112(3)(b), a
5 local government that is an enforcement agency may impose
and recover under the Local Government Act 1995 Part 6
Division 5 Subdivision 2 a fee or charge for the performance of
a function as an enforcement agency under this Act.
(2) Without limiting subsection (1), a fee or charge may be imposed
10 and recovered by a local government as provided for by that
subsection for the provision of information or for the carrying
out of any inspection (whether or not the inspection is asked for
or agreed to).
141. Protection from liability for wrongdoing
15 (1) Any matter or thing done or omitted to be done by an
enforcement agency, an advisory committee, or a protected
person does not, if the matter or thing was done or omitted in
good faith for the purpose of executing any provision of this Act
or any other law, subject a protected person personally to any
20 action, liability, claim or demand.
(2) In subsection (1) --
"protected person" means any of the following --
(a) the Minister;
(b) the head of an enforcement agency;
25 (c) any member of an enforcement agency or the staff of
an enforcement agency;
(d) an authorised officer;
(e) any person acting under the direction of the head of
an enforcement agency;
30 (f) any member of an advisory committee; or
page 95
Food Bill 2005
Part 12 Miscellaneous
s. 142
(g) a person employed by the Crown to carry out
analyses for the purposes of this Act or a person
carrying out analyses under the supervision of such a
person.
5 142. Certain confidential information not to be disclosed
(1) A person who has, in connection with the administration or
execution of this Act, obtained information relating to
manufacturing secrets or commercial secrets or confidential
processes must not disclose that information unless the
10 disclosure is made --
(a) with the consent of the person from whom the
information was obtained;
(b) in connection with the administration or execution of
this Act;
15 (c) for the purposes of any legal proceedings arising out of
this Act or of any report of any such proceedings;
(d) in accordance with a requirement imposed by or under
this Act or any other law;
(e) to a person administering or enforcing a law of another
20 jurisdiction that corresponds to this Act or any other law
prescribed by the regulations;
(f) to Food Standards Australia New Zealand;
(g) to a law enforcement authority; or
(h) with other lawful excuse.
25 Penalty: a fine of $50 000.
(2) A person does not commit an offence under this section if the
information was publicly available at the time the disclosure
concerned was made.
page 96
Food Bill 2005
Miscellaneous Part 12
s. 143
(3) In subsection (1)(g) --
"law enforcement authority" means a person or body, or a
person or body within a class of persons or bodies,
prescribed by the regulations for the purposes of this
5 subsection.
143. Publication of names of offenders
(1) The CEO may publish in the Gazette, or in a newspaper or other
publication circulating in this State, a notice in respect of any
person who is convicted, or whose employee or agent is
10 convicted, of an offence under this Act relating to the handling
or sale of food.
(2) A notice under this section may only be published within
21 days after the conviction unless an appeal is made against the
conviction.
15 (3) If an appeal is made against the conviction, a notice under this
section must not be published unless a final order has been
made on appeal affirming the conviction.
(4) If a final order is made on appeal affirming the conviction, a
notice under this section may only be published within 21 days
20 after the final order is made.
(5) A notice under this section may contain --
(a) the address of the person's place of business;
(b) the name under which the person carries on business;
(c) a description of the nature of the offence, the decision of
25 the court, the penalty imposed or any forfeiture incurred;
and
(d) any other information relating to the safety of the food
concerned that the CEO thinks necessary.
page 97
Food Bill 2005
Part 12 Miscellaneous
s. 144
(6) No liability is incurred by a person for publishing in good
faith --
(a) a notice under this section; or
(b) a fair report or summary of such a notice.
5 144. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
10 (2) Without limiting subsection (1), the regulations may --
(a) require the preparation, implementation, maintenance
and monitoring of food safety programs for food
businesses to ensure that the provisions of this Act and
the Food Standards Code are complied with;
15 (b) prescribe fees or charges for the purposes of this Act,
including (but not limited to) --
(i) fees for the making of applications under this
Act; and
(ii) fees or charges for the provision of information,
20 or for the carrying out of any inspection or
analysis (whether or not the inspection or
analysis is asked for or agreed to), or in
connection with the notification of the conduct of
a food business;
25 (c) prescribe marks or brands that are to be applied to meat
inspected for the purposes of this Act;
(d) prohibit the sale or supply of meat, or any food that
consists wholly or partly of meat, that has not been
marked or branded as required by regulations made for
30 the purposes of paragraph (c);
(e) impose requirements for the notification by food
businesses of information relating to the conduct of
those food businesses; or
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Food Bill 2005
Miscellaneous Part 12
s. 145
(f) regulate or prohibit any activity relating to --
(i) the handling or sale of food; or
(ii) for the purpose of preventing risks to the safety
of food for human consumption -- the handling
5 or sale of any substance or thing of a kind used,
or represented as being for use, as food for
animal consumption.
(3) The Minister must ensure that consultation with the relevant
industry or sector of industry is undertaken before a regulation
10 is made under subsection (2)(a) imposing a requirement relating
to a food safety program.
(4) A failure to comply with subsection (3) does not affect the
validity of the regulation concerned.
(5) The regulations may provide that contravention of a regulation
15 or a provision of a regulation constitutes an offence and may
provide for penalties not exceeding $5 000.
(6) Except as provided in subsection (7), the regulations may apply,
adopt or incorporate, whether wholly or in part or with or
without modification, any standard, code or other document as
20 in force from time to time or as in force at a particular time.
(7) The regulations may adopt or incorporate the Food Standards
Code, but only wholly, without modification and as in force
from time to time.
145. Temporary emergency regulations modifying the Food
25 Standards Code
(1) Regulations may be made for the purposes of this section that
contain provisions that are in addition to, or in substitution for,
one or more of the provisions of the Food Standards Code as
those provisions of that Code apply in this State.
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Food Bill 2005
Part 12 Miscellaneous
s. 146
(2) A regulation must not be made for the purposes of this section
unless the Minister has certified to the Governor that the
regulation is necessary because it relates to an issue of public
health and safety.
5 (3) A regulation made for the purposes of this section continues in
force for the period not exceeding 12 months specified in the
regulations.
146. Minister to review and report on Act
(1) The Minister must carry out a review of the operation and
10 effectiveness of this Act as soon as practicable after the fifth
anniversary of the commencement of this section.
(2) The Minister must prepare a report based on the review and, as
soon as practicable after the report is prepared, must cause it to
be laid before each House of Parliament.
page 100
Food Bill 2005
Consequential amendments Part 13
s. 147
Part 13 -- Consequential amendments
147. Health Act 1911 amended
(1) The amendments in this section are to the Health Act 1911*.
[* Reprint 13 as at 15 July 2005.]
5 (2) Section 3(1) is amended as follows:
(a) by deleting the definition of "food" and inserting the
following definition instead --
"
"food" has the meaning given to that term in the Food
10 Act 2008 section 9;
";
(b) in the definition of "premises", by deleting ", except in
Part VIII,";
(c) by deleting the definition of "the Food Advisory
15 Committee";
(d) in the definition of "trade description" by deleting "food
or".
(3) Section 3(1a) is repealed.
(4) Section 134(49) and (52a) are deleted.
20 (5) Part V Division 3 is repealed.
(6) Section 199(14) is deleted.
(7) The heading to Part VIIA is amended by deleting "Animal
produce, drugs," and inserting instead --
" Drugs, ".
25 (8) Part VIIA Divisions 2, 2A, 3, 3A and 4 are repealed.
(9) Section 246D(2) is repealed.
(10) Section 246E is repealed.
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Food Bill 2005
Part 13 Consequential amendments
s. 147
(11) Section 246F is repealed.
(12) Section 246FA is repealed.
(13) Section 246FB is repealed.
(14) Part VIII and Schedule 3 are repealed.
5 (15) Section 344C is amended in the Table as follows:
(a) by deleting "172(3),";
(b) by deleting ", 220(1)(l)".
(16) Section 360(4) is amended as follows:
(a) in paragraph (a), by deleting "as read with section 172,
10 207(1) or (3) or 220(1)";
(b) in paragraph (b), by deleting "section 207D, 212B,
220(2), 246C, 246D(1) or (2) or 247." and inserting
instead --
" section 246C or 246D(1). ".
15 (17) Section 377(5) is deleted.
(18) Schedule 5 Part I is amended as follows:
(a) by deleting "217(1) and (2),";
(b) by deleting "246X(1),".
(19) Schedule 5 Part II is amended as follows:
20 (a) by deleting "162(4),";
(b) by deleting "246ZK,".
(20) Schedule 5 Part III is amended by deleting "246O(2), 246P,
246Q(3) and (4), 246Z(5) and (6), 246ZH(2), 246ZM(1),".
(21) Schedule 5 Part IV is amended as follows:
25 (a) by deleting "207B(3), 207C, 209(1) and (2), 210,
211(1), (2), (3), (4) and (5),";
(b) by deleting "246L, 246N(1), 246O(1), 246Q(2), 246T,
246X(2),".
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Food Bill 2005
Consequential amendments Part 13
s. 148
(22) Schedule 5 Part V is amended as follows:
(a) by deleting "171(2),";
(b) by deleting "246M(2), 246N(2), 246Q(1), 246R(1),".
(23) Schedule 5 Part VI is amended as follows:
5 (a) by deleting "205(6), 212, 214(1), 216(2),";
(b) by deleting "246M(1), 246S, 246W(2), 246Y(10),
246ZD,".
(24) Schedule 5 Part VII is amended by deleting ", 246E".
148. Liquor Control Act 1988 amended
10 (1) The amendments in this section are to the Liquor Control
Act 1988*.
[* Reprint 3 as at 23 April 2004.
For subsequent amendments see Western Australian
Legislation Information Tables for 2004, Table 1, p. 254-5.]
15 (2) After section 39(2)(a)(i) the following subparagraph is
inserted --
"
(ia) the Food Act 2008;
".
20 (3) After section 69(8)(a) the following paragraph is inserted --
"
(aa) the Food Act 2008;
".
(4) After section 95(4)(f)(i) the following subparagraph is
25 inserted --
"
(ia) an offence under the Food Act 2008 in
relation to the licensed premises;
".
page 103
Food Bill 2005
Part 13 Consequential amendments
s. 149
149. Volunteers and Food and Other Donors (Protection from
Liability) Act 2002 amended
Section 3(1) is amended in the definition of "food" by deleting
"section 3(1) of the Health Act 1911;" and inserting instead --
5 " the Food Act 2008 section 9; ".
page 104
Food Bill 2005
Transitional provisions Part 14
s. 150
Part 14 -- Transitional provisions
150. Definition
In this Part --
"commencement day" means the day on which this Part comes
5 into operation.
151. Interpretation Act 1984 not affected
Nothing in this Part is to be construed so as to limit the
operation of the Interpretation Act 1984.
152. Orders under Health Act 1911 section 246W
10 An order under the Health Act 1911 section 246W(1) that is in
force immediately before the commencement day has effect on
and after that day as if it were an emergency order made under
section 32(b).
153. Orders under Health Act 1911 section 246Y
15 (1) An order under the Health Act 1911 section 246Y(1) that is in
force immediately before the commencement day has effect on
and after that day as if it were an improvement notice.
(2) An order under the Health Act 1911 section 246Y(2) that is in
force immediately before the commencement day has effect on
20 and after that day as if it were a prohibition order.
154. Transitional regulations
(1) If this Act does not provide sufficiently for a matter or issue of a
transitional nature that arises as a result of the amendment of an
Act by this Act or the coming into operation of this Act, the
25 Governor may make regulations prescribing all matters that are
required, necessary or convenient to be prescribed for providing
for that matter or issue.
page 105
Food Bill 2005
Part 14 Transitional provisions
s. 154
(2) If regulations made under subsection (1) provide that a specified
state of affairs is taken to have existed, or not to have existed,
on and from a day that is earlier than the day on which the
regulations are published in the Gazette but not earlier than the
5 commencement day, the regulations have effect according to
their terms.
(3) In subsection (2) --
"specified" means specified or described in the regulations.
(4) If regulations contain a provision referred to in subsection (2),
10 the provision does not operate so as --
(a) to affect in a manner prejudicial to any person (other
than the State or an authority of the State) the rights of
that person existing before the day of publication; or
(b) to impose liabilities on any person (other than the State
15 or an authority of the State) in respect of anything done
or omitted to be done before the day of publication.
page 106
Food Bill 2005
Transitional provisions Part 14
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
advertisement................................................................................................... 8
analysis............................................................................................................ 8
animal.............................................................................................................. 8
another person............................................................................................ 27(3)
appropriate enforcement agency ....................................................................... 8
approved analyst .............................................................................................. 8
approved form.................................................................................................. 8
approved laboratory ......................................................................................... 8
authorised officer ............................................................................................. 8
CEO ................................................................................................................ 8
commencement day...................................................................................... 150
convicted person .......................................................................................... 139
court ................................................................................................................ 8
current audit frequency............................................................................. 103(1)
designated officer..................................................................................... 126(1)
emergency order .............................................................................................. 8
enforcement agency ......................................................................................... 8
equipment........................................................................................................ 8
examine ........................................................................................................... 8
exempted food business............................................................................ 109(2)
false statement ......................................................................................... 131(2)
food .........................................................................................8, 9(1), 9(2), 9(3)
food business ..............................................................................................8, 10
food safety auditor ........................................................................................... 8
food safety program ................................................................................. 103(1)
Food Safety Standards...................................................................................... 8
Food Standards Australia New Zealand ............................................................ 8
Food Standards Code ....................................................................................... 8
food transport vehicle....................................................................................... 8
handling........................................................................................................... 8
improvement notice.......................................................................................... 8
label................................................................................................................. 8
law enforcement authority........................................................................ 142(3)
member of staff................................................................................................ 8
national guidelines ................................................................................... 120(3)
offence..................................................................................................... 128(1)
officer...................................................................................................... 128(1)
package............................................................................................................ 8
police officer.................................................................................................... 8
page 107
Food Bill 2005
Part 14 Transitional provisions
Defined Terms
premises .......................................................................................................... 8
prescribed ........................................................................................6(1), 126(1)
primary food production............................................................... 8, 11(1), 11(2)
priority classification................................................................................ 103(1)
processes ................................................................................................... 12(3)
prohibition order .............................................................................................. 8
proprietor......................................................................................................... 8
protected person....................................................................................... 141(2)
public institution .............................................................................................. 8
recall order....................................................................................................... 8
remote communication..................................................................................... 8
sell................................................................................................................... 8
slaughter .................................................................................................... 13(3)
specified .................................................................................................. 154(3)
specified information ............................................................................... 107(2)
unsafe .......................................................................................... 8, 12(1), 12(2)
unsuitable .................................................................................... 8, 13(1), 13(2)
vehicle ............................................................................................................. 8
water supplier ..............................................................................................5(2)
page 108
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