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This is a Bill, not an Act. For current law, see the Acts databases.


FOOD BILL 2003




                        New South Wales




Food Bill 2003


Contents

                                                                    Page
Part 1   Preliminary
          1   Name of Act                                             2
          2   Commencement                                            2
          3   Objects of Act                                          2
          4   Definitions                                             2
          5   Meaning of "food"                                       6
          6   Meaning of "food business"                              6
          7   Meaning of "primary food production"                    7
          8   Meaning of "unsafe" food                                8
          9   Meaning of "unsuitable" food                            8
         10   Application of Act to primary food production           9
         11   Application of Act to water suppliers                   9
         12   Relationship to other laws                             10
Food Bill 2003

Contents

                                                                                   Page

Part 2       Offences relating to food
             Division 1        Serious offences relating to food
                 13   Handling of food in unsafe manner                             11
                 14   Sale of unsafe food                                           11
                 15   False description of food                                     11

             Division 2        Other offences relating to food
                 16   Handling and sale of unsafe food                              12
                 17   Handling and sale of unsuitable food                          12
                 18   Misleading conduct relating to sale of food                   13
                 19   Sale of food not complying with purchaser's demand            13
                 20   Sale of unfit equipment or packaging or labelling material    13
                 21   Compliance with Food Standards Code                           14
                 22   False descriptions of food                                    14
                 23   Application of provisions outside the State                   15

             Division 3        Defences
                 24   Defence relating to publication of advertisements             15
                 25   Defence in respect of food for export                         16
                 26   Defence of due diligence                                      16
                 27   Defence of mistaken and reasonable belief not available       17
                 28   Defence in respect of handling food                           18
                 29   Defence in respect of sale of unfit equipment or packaging
                      or labelling material                                         18

Part 3       Emergency powers
                 30   Making of order                                               19
                 31   Nature of order                                               19
                 32   Special provisions relating to recall orders                  20
                 33   Manner of making orders                                       20
                 34   Compensation                                                  21
                 35   Failure to comply with emergency order                        22
                 36   Limitation on stay of operation of emergency orders           22

Part 4       Inspection and seizure powers
             Division 1        Inspection
                 37   Powers of authorised officers                                 23
                 38   Power of seizure                                              24
                 39   Search warrants                                               25
                 40   Failure to comply with requirements of authorised officers    25
                 41   Interfering with seized items                                 25
                 42   False information                                             26

Contents page 2
Food Bill 2003

Contents

                                                                                   Page
                 43   Obstructing or impersonating authorised officers               26

             Division 2        Items seized by authorised officers
                 44   Seized items                                                   26
                 45   Notification of seizure                                        27
                 46   Destruction of filthy, decomposed or putrid matter             27
                 47   Return of seized item                                          27
                 48   Forfeiture of item                                             28
                 49   Cost of destruction or disposal of forfeited item              28
                 50   Return of forfeited item                                       28
                 51   Compensation to be paid in certain circumstances               29
                 52   Application for order disallowing seizure                      29
                 53   Enforcement agency entitled to answer application              30
                 54   Order disallowing seizure of item                              30
                 55   Ancillary orders                                               30
                 56   Adjournment pending hearing of other proceedings               31

Part 5       Improvement notices and prohibition orders for
             premises or equipment
                 57   Unclean or unfit premises, vehicles or equipment               32
                 58   Improvement notice                                             32
                 59   Compliance with improvement notice                             33
                 60   Prohibition order                                              33
                 61   Scope of notices and orders                                    34
                 62   Notices and orders to contain certain information              35
                 63   Request for re-inspection                                      35
                 64   Contravention of prohibition order                             35
                 65   Review of decision to refuse certificate of clearance          36
                 66   Compensation                                                   36

Part 6       Taking and analysis of samples
             Division 1        Taking of samples
                 67   Proprietor to be informed                                      37
                 68   Payment for sample                                             37
                 69   Samples from vending machines                                  37
                 70   Packaged food                                                  37
                 71   Procedure to be followed                                       38
                 72   Samples to be submitted for analysis                           39

             Division 2        Procedures relating to analyses
                 73   Compliance with Food Standards Code                            39
                 74   Certificate of analysis                                        39


                                                                         Contents page 3
Food Bill 2003

Contents

                                                                                 Page
             Division 3         Approval of laboratories
                 75   Approval of laboratories                                    40
                 76   Term of approval                                            40
                 77   Approved laboratory to give notice of certain interests     41
                 78   Variation of conditions or suspension or cancellation
                      of approval of laboratory                                   41
                 79   Review of decisions relating to approval                    42
                 80   List of approved laboratories to be maintained              42

             Division 4         Approval of analysts
                 81   Approval of persons to carry out analyses                   43
                 82   Term of approval                                            43
                 83   Approved analyst to give notice of certain interests        43
                 84   Variation of conditions or suspension or cancellation
                      of approval of analyst                                      43
                 85   Review of decisions relating to approval                    44
                 86   List of approved analysts to be maintained                  45

Part 7       Auditing
             Division 1         Approval of food safety auditors
                 87   Approval of food safety auditors                            46
                 88   Term of approval                                            46
                 89   Food safety auditor to give notice of certain interests     47
                 90   Variation of conditions or suspension or cancellation
                      of approval of auditor                                      47
                 91   Review of decisions relating to approvals                   48

             Division 2         Auditing and reporting requirements
                 92   Food safety programs and auditing requirements              49
                 93   Priority classification system and frequency of auditing    49
                 94   Duties of food safety auditors                              50
                 95   Reporting requirements                                      50
                 96   Redetermination of frequency of auditing                    52
                 97   Certificates of authority of food safety auditors           52
                 98   List of food safety auditors to be maintained               53
                 99   Obstructing or impersonating food safety auditors           53

Part 8       Notification and registration of food
             businesses and approval of food premises
             100      Notification of conduct of food businesses                  54
             101      Exemption in relation to notification of information        54
             102      Registration of food businesses                             54
             103      Renewal of registration                                     55

Contents page 4
Food Bill 2003

Contents

                                                                                   Page
             104   Term of registration                                             56
             105   Variation of conditions or suspension or cancellation of
                   registration of food businesses                                  56
             106   Review of decisions relating to registration                     57
             107   Register of food businesses to be maintained                     57

Part 9       Administration
             Division 1      Regulatory authority
             108   Functions of the regulatory authority in relation to this Act    59
             109   Delegation                                                       59

             Division 2      Functions of enforcement agencies
             110   Functions of enforcement agencies in relation to this Act        59
             111   Conditions on exercise of functions by enforcement
                   agencies                                                         60
             112   Exercise of functions by enforcement agencies                    60
             113   Reports by enforcement agencies                                  60

             Division 3      Appointment of authorised officers
             114   Appointment of authorised officers                               60
             115   Certificates of authority                                        60

             Division 4      Advisory committees
             116   Establishment of advisory committees                             61
             117   Functions of advisory committees                                 62

Part 10      Procedural and evidentiary provisions
             118   Nature of proceedings for offences                               63
             119   Institution of proceedings                                       63
             120   Penalty notices for certain offences                             63
             121   Offences by employers                                            64
             122   Offences by corporations                                         64
             123   Liability of employees and agents                                65
             124   Alternative verdicts for serious food offences                   65
             125   No defence to allege deterioration of sample                     66
             126   Onus to prove certain matters on defendant                       66
             127   Presumptions                                                     66
             128   Certificate evidence and evidence of analysts                    67
             129   Power of court to order further analysis                         68
             130   Disclosure by witnesses                                          69
             131   Court may order costs and expenses                               69
             132   Court may order corrective advertising                           69



                                                                      Contents page 5
Food Bill 2003

Contents

                                                                                  Page
             133     Information in relation to prosecutions to be forwarded to
                     Director-General                                              70

Part 11      Miscellaneous
             134     Protection from personal liability                            71
             135     Exclusion of liability of the State and others                71
             136     Disclosure of certain confidential information                72
             137     Publication of names of offenders                             72
             138     Act to bind Crown                                             73
             139     Regulations                                                   73
             140     Temporary emergency regulations modifying the Code            74
             141     Other regulations modifying the Code                          74
             142     Repeals                                                       74
             143     Amendment of other Acts                                       75
             144     Savings, transitional and other provisions                    75

Schedules
                 1   Amendment of other Acts                                       76
                 2   Savings, transitional and other provisions                    78




Contents page 6
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.


                                               Clerk of the Legislative Assembly.
                                               Legislative Assembly,
                                               Sydney,                     , 2003




                            New South Wales




Food Bill 2003

Act No       , 2003




An Act to regulate the handling of food for sale and the sale of food and to
provide for the application of the Australia New Zealand Food Standards Code
in New South Wales; to repeal the Food Act 1989; and for other purposes.




I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.


                          Chairman of Committees of the Legislative Assembly.
Clause 1          Food Bill 2003

Part 1            Preliminary




The Legislature of New South Wales enacts:

Part 1            Preliminary
  1      Name of Act
               This Act is the Food Act 2003.
  2      Commencement
               This Act commences on a day or days to be appointed by
               proclamation.
  3      Objects of Act
               The objects of this Act include the following:
               (a) to ensure food for sale is both safe and suitable for human
                    consumption,
               (b) to prevent misleading conduct in connection with the sale of
                    food,
               (c) to provide for the application in this State of the Food
                    Standards Code.
  4      Definitions
         (1)   In this Act:
               Administrative Decisions Tribunal means the Administrative
               Decisions Tribunal constituted under the Administrative Decisions
               Tribunal Act 1997.
               advertisement means:
               (a) any words, whether written or spoken, or
               (b) any pictorial representation or design, or
               (c) any other representation by any means at all,
               used or apparently used to promote, directly or indirectly, the sale of
               food.
               analysis includes any examination or testing of food or any other
               thing.
               animal includes an amphibian, bird, crustacean, fish, mollusc or
               reptile.




Page 2
Food Bill 2003                                                        Clause 4

Preliminary                                                           Part 1




              appropriate enforcement agency means, in relation to the provision
              in which the expression is used, the enforcement agency prescribed
              by the regulations for the purposes of that provision.
              approved analyst means a person approved under Division 4 of Part
              6.
              approved form means the form approved from time to time by the
              regulatory authority.
              approved laboratory means a laboratory approved under Division 3
              of Part 6.
              authorised justice has the same meaning as in the Search Warrants
              Act 1985.
              authorised officer means a person appointed under Division 3 of
              Part 9.
              Commonwealth Food Authority has the same meaning as
              Authority in the Food Standards Australia New Zealand Act 1991
              of the Commonwealth.
              enforcement agency means:
              (a) the regulatory authority, or
              (b) any person or body, or a person or body within a class 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 intended for use,
                   in or in connection with the handling of food, or
              (b) any substance, utensil, machinery, instrument, device,
                   apparatus or appliance that is used, or that is designed or
                   intended for use, in cleaning anything referred to in paragraph
                   (a).
              examine includes weigh, count, test or measure.
              food has the meaning given by section 5.
              food business has the meaning given by section 6.
              food safety auditor means a person approved under Division 1 of
              Part 7.




                                                                           Page 3
Clause 4      Food Bill 2003

Part 1        Preliminary




           Food Safety Standards means the standards contained in Chapter 3
           of the Food Standards Code.
           Food Standards Code means the Australia New Zealand Food
           Standards Code as defined in the Food Standards Australia New
           Zealand Act 1991 of the Commonwealth, as modified in accordance
           with regulations referred to in section 140 or 141.
           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, transporting, delivering,
           preparing, treating, preserving, packing, cooking, thawing, serving
           or displaying of food.
           improvement notice means an improvement notice issued under
           Part 5.
           label includes any tag, brand, mark or statement in writing or any
           representation or design or other descriptive matter on or attached to
           or used or displayed in connection with or accompanying any food
           or package.
           package includes any container or wrapper in or by which food
           intended for sale is wholly or partly encased, covered, enclosed,
           contained or packed and, in the case of food carried or sold or
           intended to be carried or sold in more than one package, includes
           every such package.
           premises includes:
           (a) land (whether or not vacant), or
           (b) the whole or any part of a building, tent, stall or other structure
                (whether of a permanent or temporary nature), or
           (c) a pontoon, or
           (d) a vehicle (other than a food transport vehicle while it is
                engaged in the transport of food).
           primary food production has the meaning given by section 7.
           prohibition order means a prohibition order made under Part 5.
           proprietor of a food business means:
           (a) the person carrying on the food business, or
           (b) if that person cannot be identified the person in charge of the
                 food business.



Page 4
Food Bill 2003                                                        Clause 4

Preliminary                                                           Part 1




              recall order means an order under Part 3 requiring the recall or
              disposal, or both, of any food.
              regulatory authority means the Director-General of the Department
              of Health.
               sell includes:
               (a) barter, offer or attempt to sell, or
               (b) receive for sale, or
               (c) have in possession for sale, or
               (d) display for sale, or
               (e) cause or permit to be sold or offered for sale, or
                (f) send, forward or deliver for sale, or
               (g) dispose of by any method for valuable consideration, or
               (h) dispose of to an agent for sale on consignment, or
                (i) provide under a contract of service, or
                (j) supply food as a meal or part of a meal to an employee, in
                      accordance with a term of an award governing the
                      employment of the employee or a term of the employee's
                      contract of service, for consumption by the employee at the
                      employee's place of work, or
               (k) dispose of by way of raffle, lottery or other game of chance, or
                (l) offer as a prize or reward, or
              (m) give away for the purpose of advertisement or in furtherance
                      of trade or business, or
               (n) supply food under a contract (whether or not the contract is
                      made with the consumer of the food), together with
                      accommodation, service or entertainment, in consideration of
                      an inclusive charge for the food supplied and the
                      accommodation, service or entertainment, or
               (o) supply food (whether or not for consideration) in the course
                      of providing services to patients in public hospitals (within
                      the meaning of the Health Services Act 1997) or inmates in
                      correctional centres (within the meaning of the Crimes
                      (Administration of Sentences) Act 1999), or
               (p) sell for the purpose of resale.
              unsafe has the meaning given by section 8.
              unsuitable has the meaning given by section 9.


                                                                           Page 5
Clause 5          Food Bill 2003

Part 1            Preliminary




               vehicle means any means of transport, whether self-propelled or
               not, and whether used on land or sea or in the air.
         (2)   For the purposes of this Act, food or equipment that is displayed for
               the purpose of being offered as a prize or reward or given away for
               the purpose of advertisement or in the furtherance of trade or
               business is taken to have been displayed for sale by the owner of the
               food or equipment.
         (3)   Notes included in this Act do not form part of this Act.
  5      Meaning of "food"
         (1)   In this Act, food includes:
               (a) any substance or thing of a kind used, or represented as being
                      for use, for human consumption (whether it is live, raw,
                      prepared or partly prepared), or
               (b) any substance or thing of a kind used, or represented as being
                      for use, as an ingredient or additive in a substance or thing
                      referred to in paragraph (a), or
               (c) any substance used in preparing a substance or thing referred
                      to in paragraph (a) (other than a substance used in preparing a
                      living thing) if it comes into direct contact with the substance
                      or thing referred to in that paragraph, such as a processing aid,
                      or
               (d) chewing gum or an ingredient or additive in chewing gum, or
                      any substance used in preparing chewing gum, or
               (e) any substance or thing declared to be a food under a
                      declaration in force under section 3B of the Food Standards
                      Australia New Zealand Act 1991 of the Commonwealth,
               whether or not the substance, thing or chewing gum is in a condition
               fit for human consumption.
         (2)   However, food does not include a therapeutic good within the
               meaning of the Therapeutic Goods Act 1989 of the Commonwealth.
         (3)   To avoid doubt, food may include live animals and plants.
  6      Meaning of "food business"
               In this Act, food business means a business, enterprise or activity
               (other than a business, enterprise or activity that is primary food
               production) that involves:
               (a) the handling of food intended for sale, or


Page 6
Food Bill 2003                                                               Clause 7

Preliminary                                                                  Part 1




              (b)    the sale of food,
              regardless of whether the business, enterprise or activity concerned
              is of a commercial, charitable or community nature or whether it
              involves the handling or sale of food on one occasion only.
  7   Meaning of "primary food production"
       (1)    In this Act, primary food production means the growing, raising,
              cultivation, picking, harvesting, collection or catching of food, and
              includes the following:
              (a) the transportation or delivery of food on, from or between the
                     premises on which it was grown, raised, cultivated, picked,
                     harvested, collected or caught,
              (b) the packing, treating (for example, washing) or storing of
                     food on the premises on which it was grown, raised,
                     cultivated, picked, harvested, collected or caught,
              (c) the storage of food in a silo that is not connected with a food
                     processing operation and the transportation or delivery of
                     food from, between or to such silos,
              (d) the sale of livestock at saleyards and the transportation of
                     livestock to and from saleyards,
              (e) any other food production activity that is regulated by or
                     under an Act prescribed by the regulations for the purposes of
                     this subsection.
       (2)    However, primary food production does not include:
              (a) any process involving the substantial transformation of food
                  (for example, manufacturing or canning), regardless of
                  whether the process is carried out on the premises on which
                  the food was grown, cultivated, picked, harvested, collected
                  or caught, or
              (b) the sale or service of food directly to the public, or
              (c) any other food production activity that is prescribed by the
                  regulations for the purposes of this subsection.
              Note. Section 7 (2) (c) enables regulations to be made prescribing food
              production activities that are not included in the definition of primary food
              production. Such a regulation might be made, for example, to prescribe a food
              production activity in relation to which significant and unmanaged food safety
              hazards have been identified.




                                                                                   Page 7
Clause 8          Food Bill 2003

Part 1            Preliminary




  8      Meaning of "unsafe" food
         (1)   For the purposes of this Act, food is unsafe at a particular time if it
               would be likely to cause physical harm to a person who might later
               consume it, assuming:
               (a) it was, after that particular time and before being consumed
                     by the person, properly subjected to all processes (if any) that
                     are relevant to its reasonable intended use, and
               (b) nothing happened to it after that particular time and before
                     being consumed by the person that would prevent its being
                     used for its reasonable intended use, and
               (c) it was consumed by the person according to its reasonable
                     intended use.
         (2)   However, food is not unsafe for the purposes of this Act merely
               because its inherent nutritional or chemical properties cause, or its
               inherent nature causes, adverse reactions only in persons with
               allergies or sensitivities that are not common to the majority of
               persons.
         (3)   In subsection (1), processes include processes involving storage and
               preparation.
  9      Meaning of "unsuitable" food
         (1)   For the purposes of this Act, food is unsuitable if it is food that:
               (a) is damaged, deteriorated or perished to an extent that affects
                     its reasonable intended use, or
               (b) contains any damaged, deteriorated or perished substance that
                     affects its reasonable intended use, or
               (c) is the product of a diseased animal, or an animal that has died
                     otherwise than by slaughter, and has not been declared by or
                     under another Act to be safe for human consumption, or
               (d) contains a biological or chemical agent, or other matter or
                     substance, that is foreign to the nature of the food.
         (2)   However, food is not unsuitable for the purposes of this Act merely
               because:
               (a) at any particular time before it is sold for human consumption
                    it contains an agricultural or veterinary chemical, or




Page 8
Food Bill 2003                                                              Clause 10

Preliminary                                                                 Part 1




              (b)      when it is sold for human consumption it contains an
                       agricultural or veterinary chemical, so long as it does not
                       contain the chemical in an amount that contravenes the Food
                       Standards Code, or
                 (c)   it contains a metal or non-metal contaminant (within the
                       meaning of the Food Standards Code) in an amount that does
                       not contravene the permitted level for the contaminant as
                       specified in the Food Standards Code, or
              (d)      it contains any matter or substance that is permitted by the
                       Food Standards Code.
       (3)    In this section, slaughter of an animal includes the killing of an
              animal in the process of capturing, taking or harvesting it for the
              purposes of preparing it for use as food.
10    Application of Act to primary food production
       (1)    Parts 5, 7 and 8 do not apply to or in respect of primary food
              production.
       (2)    The functions conferred on authorised officers by Parts 4 and 6 may
              only be exercised in respect of primary food production:
              (a) to enable the investigation and prosecution of offences against
                    this Act or the regulations, or
              (b) in connection with the making or enforcement of emergency
                    orders under Part 3.
              Note. The definition of food business excludes primary food production.

11    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:
              (a) sections 13, 15, 16 (1), 17 (1), 18, 19, 20 and 21 (but only to
                     the extent to which section 21 requires compliance with the
                     requirements of the Food Safety Standards),
              (b) Parts 5, 7 and 8.
       (2)    In this section, 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, or




                                                                                  Page 9
Clause 12            Food Bill 2003

Part 1               Preliminary




               (b)      a person who is employed or engaged by such a body to
                        supply water for human consumption, or
               (c)      any body or person prescribed by the regulations for the
                        purposes of this section.
12       Relationship to other laws
         (1)   If, by or under any other Act (whether passed before or after the
               commencement of this section) any provision is made in relation to
               food for sale, being a provision that is inconsistent with the
               provisions of this Act or the regulations under this Act, the
               provisions of this Act or the regulations prevail to the extent of the
               inconsistency.
         (2)   Any statutory rule relating to any of the following matters must be
               submitted to the Minister before being made:
               (a) the wholesomeness, cleanliness or freedom from
                    contamination of food,
               (b) the composition of, and standards for, food,
               (c) the cleanliness of vehicles, premises or places in which food
                    is sold or handled for sale.
         (3)   No such statutory rule may be made unless the Minister approves of
               such of its provisions as relate to any of those matters.
         (4)   Failure to comply with any provision of this section does not affect
               the validity of a statutory rule.
         (5)   In this section, statutory rule means a regulation, by-law, rule or
               ordinance made, or required by law to be approved or confirmed, by
               the Governor or made by a council.




Page 10
Food Bill 2003                                                                Clause 13

Offences relating to food                                                     Part 2




Part 2            Offences relating to food
Division 1           Serious offences relating to food
13     Handling of food in unsafe manner
       (1)    A person must not handle food intended for sale in a manner that the
              person knows will render, or is likely to render, the food unsafe.
              Maximum penalty: 1,000 penalty units or imprisonment for 2 years,
              or both, in the case of an individual and 5,000 penalty units in the
              case of a corporation.
       (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.
              Maximum penalty: 750 penalty units in the case of an individual and
              3,750 penalty units in the case of a corporation.
14     Sale of unsafe food
       (1)    A person must not sell food that the person knows is unsafe.
              Maximum penalty: 1,000 penalty units or imprisonment for 2 years,
              or both, in the case of an individual and 5,000 penalty units in the
              case of a corporation.
       (2)    A person must not sell food that the person ought reasonably to
              know is unsafe.
              Maximum penalty: 750 penalty units in the case of an individual and
              3,750 penalty units in the case of a corporation.
15     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 harm.
              Maximum penalty: 1,000 penalty units or imprisonment for 2 years,
              or both, in the case of an individual and 5,000 penalty units in the
              case of a corporation.
              Note. Examples of food that is falsely described are contained in section 22.




                                                                                   Page 11
Clause 16         Food Bill 2003

Part 2            Offences relating to food




         (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.
               Maximum penalty: 750 penalty units in the case of an individual and
               3,750 penalty units in the case of a corporation.
               Note. Examples of food that is falsely described are contained in section 22.
         (3)   A person must not sell food that the person knows is falsely
               described and will, or is likely to, cause physical harm to a consumer
               of the food who relies on the description.
               Maximum penalty: 1,000 penalty units or imprisonment for 2 years,
               or both, in the case of an individual and 5,000 penalty units in the
               case of a corporation.
               Note. Examples of food that is falsely described are contained in section 22.
         (4)   A person must not sell food that the person ought reasonably to
               know is falsely described and is likely to cause physical harm to a
               consumer of the food who relies on the description.
               Maximum penalty: 750 penalty units in the case of an individual and
               3,750 penalty units in the case of a corporation.
               Note. Examples of food that is falsely described are contained in section 22.

Division 2            Other offences relating to food
16       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.
         (2)   A person must not sell food that is unsafe.
               Maximum penalty: 500 penalty units in the case of an individual and
               2,500 penalty units in the case of a corporation.
17       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.
         (2)   A person must not sell food that is unsuitable.




Page 12
Food Bill 2003                                                                Clause 18

Offences relating to food                                                     Part 2




       (3)    For the purposes of this section, it is immaterial whether the food
              concerned is safe.
              Maximum penalty: 400 penalty units in the case of an individual and
              2,000 penalty units in the case of a corporation.
18     Misleading conduct relating to sale of food
       (1)    A person must not, in the course of carrying on a food business,
              engage in conduct that is misleading or deceptive or is likely to
              mislead or deceive in relation to the advertising, packaging or
              labelling of food intended for sale or the sale of food.
       (2)    A person must not, for the purpose of effecting or promoting the sale
              of any food in the course of carrying on a food business, cause the
              food to be advertised, packaged or labelled in a way that falsely
              describes the food.
              Note. Examples of food that is falsely described are contained in section 22.
       (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.
              Note. Examples of food that is falsely described are contained in section 22.
       (4)    Nothing in subsection (2) or (3) limits the generality of subsection
              (1).
              Maximum penalty: 500 penalty units in the case of an individual and
              2,500 penalty units in the case of a corporation.
19     Sale of food not complying with purchaser's demand
       (1)    A person must not, in the course of carrying on a food business,
              supply food by way of sale if the food is not of the nature or
              substance demanded by the purchaser.
              Maximum penalty: 500 penalty units in the case of an individual and
              2,500 penalty units in the case of a corporation.
       (2)    For the purposes of this section, it is immaterial whether the food
              concerned is safe.
20     Sale of unfit equipment or packaging or labelling material
       (1)    A person must not sell equipment that if used for the purposes for
              which it was designed or intended to be used:
              (a) would render or be likely to render food unsafe, or



                                                                                   Page 13
Clause 21            Food Bill 2003

Part 2               Offences relating to food




               (b)      would put other equipment, or would be likely to put other
                        equipment, in such a condition that, if the other equipment
                        were used for the purposes for which it was designed or
                        intended to be used, it would render, or be likely to render,
                        food unsafe.
         (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.
               Maximum penalty: 500 penalty units in the case of an individual and
               2,500 penalty units in the case of a corporation.
21       Compliance with Food Standards Code
         (1)   A person must comply with any requirement imposed on the person
               by a provision of the Food Standards Code in relation to the conduct
               of a food business or to food intended for sale or food for sale.
         (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.
         (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.
         (4)   A person must not sell or advertise for sale any food in a manner that
               contravenes a provision of the Food Standards Code.
               Maximum penalty: 500 penalty units in the case of an individual and
               2,500 penalty units in the case of a corporation.
22       False descriptions of food
         (1)   For the purposes of this Part, food that is falsely described includes
               food to which any one or more of the following paragraphs applies:
               (a) the food is represented as being of a particular nature or
                     substance for which there is a prescribed standard under the
                     Food Standards Code and the food does not comply with that
                     prescribed standard,
               (b) the food is represented as being of a particular nature or
                     substance and it contains, or is mixed or diluted with, any
                     substance in a quantity or proportion that significantly
                     diminishes its food value or nutritive properties as compared
                     with food of the represented nature or substance,




Page 14
Food Bill 2003                                                                 Clause 23

Offences relating to food                                                      Part 2




                 (c)   the food is represented as being of a particular nature or
                       substance and it contains, or is mixed or diluted with, any
                       substance of lower commercial value than food of the
                       represented nature or substance,
              (d)      the food is represented as being of a particular nature or
                       substance and a constituent of the food has been wholly or
                       partly removed so that its properties are diminished as
                       compared with food of the represented nature or substance,
                 (e)   any word, statement, device or design used in the packaging
                       or labelling of the food, or in an advertisement for the food,
                       would create a false impression as to the nature or substance
                       of the food, or the commercial value of the food, in the mind
                       of a reasonable person,
                 (f)   the food is not of the nature or substance represented by the
                       manner in which it is packaged, labelled or offered for sale.
       (2)    Without limiting the application of subsection (1) of this section to
              section 18 (2), food is falsely described for the purposes of section
              18 (2) if it is supplied in response to a purchaser's request for a
              particular type of food, or a food that does not contain a particular
              ingredient, and the food is not of that type or contains that
              ingredient.
23     Application of provisions outside the State
              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.
              Note. See section 25 for a defence in relation to food intended for export.

Division 3             Defences
24     Defence relating to publication of advertisements
       (1)    In any proceedings for an offence under this Part in relation to the
              publication of an advertisement, it is a defence for a person to prove
              that the person carried on the business of publishing or arranging for
              the publication of advertisements and that the person published or
              arranged for the publication of the advertisement in question in the
              ordinary course of that business.
       (2)    Subsection (1) does not apply if the person:
              (a) should reasonably have known that the publication of the
                   advertisement was an offence, or



                                                                                    Page 15
Clause 25            Food Bill 2003

Part 2               Offences relating to food




               (b)      had previously been informed in writing by the relevant
                        authority 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.
25       Defence in respect of food for export
         (1)   In any proceedings for an offence under this Part involving a
               contravention of or failure to comply with a provision of the Food
               Standards Code in relation to food, it is a defence for a person to
               prove that:
               (a) the food in question is to be exported to another country, and
               (b) the food complies with the laws in force at the time of the
                     alleged offence in the place to which the food is to be
                     exported, being laws that deal with the same subject-matter as
                     the provision of the Food Standards Code concerned.
         (2)   This section does not apply to food that was originally intended for
               export but was sold in this State.
26       Defence of due diligence
         (1)   In any proceedings for an offence under this Part, it is a defence if it
               is proved that the person took all reasonable precautions and
               exercised all due diligence to prevent the commission of the offence
               by the person or by another person under the person's control.
         (2)   Without limiting the ways in which a person may satisfy the
               requirements of subsection (1), a person satisfies those requirements
               if it is proved:
               (a) that the commission of the offence was due to:
                        (i) an act or default of another person, or
                       (ii) reliance on information supplied by another person, and
               (b) that:
                        (i) the person carried out all such checks of the food
                             concerned as were reasonable in all the circumstances,
                             or
                       (ii) it was reasonable in all the circumstances to rely on
                             checks carried out by the person who supplied the food
                             concerned to the person, and



Page 16
Food Bill 2003                                                            Clause 27

Offences relating to food                                                 Part 2




                 (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, that:
                        (i) the person sold the food in the same condition as when
                              the person purchased it, or
                       (ii) the person sold the food in a different condition to that
                              in which the person purchased it, but that the difference
                              did not result in any contravention of this Act or the
                              regulations.
       (3)    In subsection (2) (a), another person does not include a person who
              was:
              (a) an employee or agent of the defendant, or
              (b) in the case of a defendant that is a body corporate, a director,
                    employee or agent of the defendant.
       (4)    Without limiting the ways in which a person may satisfy the
              requirements of subsection (1) or (2) (b) (i), a person may satisfy
              those requirements by proving that:
              (a) in the case of an offence relating to a food business for which
                    a food safety program is required to be prepared in accordance
                    with the regulations, the person complied with a food safety
                    program for the food business that complies with the
                    requirements of the regulations, or
              (b) in any other case, the person complied with a scheme (for
                    example, a quality assurance program or an industry code of
                    practice) that was:
                     (i) designed to manage food safety hazards and based on
                          Australian national or international standards, codes or
                          guidelines designed for that purpose, and
                    (ii) documented in some manner.
27     Defence of mistaken and reasonable belief not available
              In any proceedings for an offence under Division 2, it is no defence
              that the defendant had a mistaken but reasonable belief as to the
              facts that constituted the offence.




                                                                              Page 17
Clause 28        Food Bill 2003

Part 2           Offences relating to food




28       Defence in respect of handling food
              In any proceedings for an offence under section 13, 16 (1) or 17 (1),
              it is a defence if it is proved that the person caused the food to which
              the offence relates to be destroyed or otherwise disposed of
              immediately after the food was handled in the manner that was
              likely to render it unsafe or unsuitable.
29       Defence in respect of sale of unfit equipment or packaging or
         labelling material
              In any proceedings for an offence under section 20 (1) or (2), it is a
              defence if the person proves that the person reasonably believed that
              the equipment or material concerned was not intended for use in
              connection with the handling of food.




Page 18
Food Bill 2003                                                        Clause 30

Emergency powers                                                      Part 3




Part 3           Emergency powers
30    Making of order
             An order may be made under this Part by the regulatory authority if
             the regulatory authority has reasonable grounds to believe that the
             making of the order is necessary to prevent or reduce the possibility
             of a serious danger to public health or to mitigate the adverse
             consequences of a serious danger to public health.
31    Nature of order
             An order under this Part may do any one or more of the following:
             (a) require the publication of warnings, in a form approved by the
                  regulatory authority, that a particular food or type of food is
                  unsafe,
             (b) prohibit the cultivation, taking, harvesting or obtaining, from
                  a specified area, of a particular food or type of food,
             (c) prohibit a particular food or type of food from being
                  advertised or sold,
             (d) direct that a particular food or type of food consigned or
                  distributed for sale or sold be recalled and specify the manner
                  in which, and the period within which, the recall is to be
                  conducted,
             (e) direct that a particular food or type of food be impounded,
                  isolated, destroyed or otherwise disposed of and specify the
                  manner in which the impounding, isolation, destruction or
                  disposal is to be conducted,
              (f) prohibit absolutely the carrying on of an activity in relation to
                  a particular food or type of food, or permit the carrying on of
                  the activity in accordance with conditions specified in the
                  order,
             (g) without limiting the generality of paragraph (f), impose
                  conditions relating to the taking and analysis of samples of the
                  food or of water or soil or any other thing that is part of the
                  environment in which that activity is carried on in relation to
                  the food,
             (h) specify methods of analysis (not inconsistent with any
                  methods prescribed by the Food Standards Code) of any
                  samples required to be taken in accordance with the order.




                                                                          Page 19
Clause 32         Food Bill 2003

Part 3            Emergency powers




32       Special provisions relating to recall orders
         (1)   A recall order may require the person, or the persons of a class, that
               is bound by the order to disclose to the public or to a class of persons
               specified in the order, in a manner so specified, any one or more of
               the following:
               (a) the particular food or type of food to be recalled or disposed
                     of,
               (b) the reasons why the food is considered to be unsafe,
               (c) the circumstances in which the consumption of the food is
                     unsafe,
               (d) procedures for disposing of the food.
         (2)   A person who is required by a recall order to conduct a recall of any
               food must give written notice to the regulatory authority of the
               completion of the recall as soon as practicable after that completion.
         (3)   A person who is bound by a recall order is liable for any cost
               incurred by or on behalf of the regulatory authority in connection
               with the recall order and any such cost is taken to be a debt due to
               the regulatory authority from that person.
         (4)   In any proceedings for the recovery of the debt, a certificate signed
               by the regulatory authority stating the amount of any costs and the
               manner in which they were incurred is evidence of the matters
               certified.
33       Manner of making orders
         (1)   An order under this Part:
               (a) may be made in writing addressed to the person or persons
                    intended to be bound by it, and served on that person or each
                    of those persons, as the case requires, or
               (b) may be addressed to several persons, to a class of persons, or
                    to all persons.
         (2)   Notice of an order addressed as referred to in subsection (1) (b)
               setting out the terms of the order and the persons to be bound by the
               order must, as soon as practicable after the order is made, be
               published in a newspaper that, in the opinion of the regulatory
               authority, will be most likely to bring the order to the attention of the
               persons bound by it.
         (3)   An order under this Part, when it takes effect, is binding on the
               person or persons to whom it is addressed.


Page 20
Food Bill 2003                                                       Clause 34

Emergency powers                                                     Part 3




       (4)   An order that is served on a person takes effect when it is served.
       (5)   An order, notice of which is published under subsection (2), takes
             effect at the beginning of the first day on which the notice was
             published.
       (6)   An order ceases to have effect at the expiration of 90 days after the
             day on which it takes effect unless it is sooner revoked.
       (7)   Subsection (6) does not prevent a further order being made in the
             same terms as an order that has expired.
       (8)   An order under this Part may be varied or revoked by the regulatory
             authority in the same manner as the order was made.
34    Compensation
       (1)   A person bound by an order under this Part who suffers loss as a
             result of the making of the order may apply to the regulatory
             authority for compensation if the person considers that there were
             insufficient grounds for the making of the order.
       (2)   If there were insufficient grounds for the making of the order, the
             regulatory authority is to pay such compensation to the applicant as
             is just and reasonable.
       (3)   The regulatory authority is to send written notification of its
             determination as to the payment of compensation under this section
             to each applicant for the payment of such compensation.
       (4)   If the regulatory authority has not determined an application for
             compensation under this section within 28 days of receiving the
             application, the regulatory authority 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 regulatory authority
             as to the refusal to pay compensation or as to the amount of
             compensation may apply to the Administrative Decisions 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 28 days after
                    the expiration of the 28-day period referred to in that
                    subsection.




                                                                         Page 21
Clause 35        Food Bill 2003

Part 3           Emergency powers




35       Failure to comply with emergency order
              A person must not, without reasonable excuse:
              (a) carry on an activity in contravention of any prohibition
                    imposed on the person by an order under this Part, or
              (b) neglect or refuse to comply with a direction given by such an
                    order, or
              (c) fail to comply with a condition specified in such an order.
              Maximum penalty: 500 penalty units in the case of an individual or
              2,500 penalty units in the case of a corporation.
36       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 interlocutory order
              that has the effect of staying the operation of an order under this
              Part.




Page 22
Food Bill 2003                                                        Clause 37

Inspection and seizure powers                                         Part 4




Part 4           Inspection and seizure powers
Division 1          Inspection
37    Powers of authorised officers
       (1)   For the purposes of this Act, an authorised officer may, at any
             reasonable time, do any one or more of the following:
             (a) alone, or with such police officers or other persons as the
                   authorised officer considers necessary, enter and inspect any
                   premises that the authorised officer reasonably believes are
                   used in connection with the handling of any food intended for
                   sale or the sale of food, or any food transport vehicle,
             (b) alone, or with such police officers or other persons as the
                   authorised officer considers necessary, enter and inspect any
                   premises or food transport vehicle, in which the authorised
                   officer reasonably believes that there are any records or
                   documents that relate to the handling of any food intended for
                   sale or the sale of food,
             (c) examine any food intended for sale,
             (d) open and examine any package that the authorised officer
                   reasonably believes contains any food intended for sale or any
                   equipment,
             (e) open and examine any equipment,
              (f) examine any labelling or advertising material that appears to
                   the authorised officer to be intended for use in connection
                   with any food intended for sale or any equipment,
             (g) subject to Division 1 of Part 6, for the purpose of analysing
                   any food sold or intended for sale or for carrying out any other
                   examination in order to determine whether the provisions of
                   this Act or the regulations are being complied with, demand,
                   select and obtain samples of any food,
             (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 human consumption,
              (i) take samples of any thing, other than for the purpose of
                   analysis, that the authorised officer reasonably believes may
                   be used as evidence that an offence has been, or is being,
                   committed under this Act or the regulations,



                                                                          Page 23
Clause 38             Food Bill 2003

Part 4                Inspection and seizure powers




                (j)      examine any records or documents referred to in paragraph
                         (b), make copies of those records or documents or any part of
                         them and, for that purpose, take away and retain (for such
                         time as may be reasonably necessary) any such records or
                         documents or any part of them,
               (k)       stop and detain any vehicle that the authorised officer is
                         authorised by this subsection to enter,
                (l)      open, or require to be opened, any container used for the
                         conveyance of goods, or any package, that the authorised
                         officer reasonably believes to contain any food sold or
                         intended for sale, or any equipment,
               (m)       take such photographs, films or audio or visual recordings as
                         the authorised officer considers necessary,
               (n)       take any measurements and make sketches or drawings or any
                         other type of record,
               (o)       require a person to provide information or answer questions in
                         connection with the authorised officer's functions under this
                         Act or to produce any record, document or thing that an
                         authorised officer is authorised to examine under this Act,
               (p)       require a person to state the person's name and residential
                         address,
               (q)       generally make such investigations and inquiries as may be
                         necessary to ascertain whether an offence under this Act or
                         the regulations has been or is being committed.
         (2)   This section does not authorise entry into any part of premises that
               is being used solely for residential purposes, except:
               (a) with the consent of the occupier of the premises, or
               (b) under the authority of a search warrant, or
               (c) if that part of the premises is being used for the preparation or
                      service of meals provided with paid accommodation.
38       Power of seizure
               An authorised officer may seize any food, or any vehicle,
               equipment, package or labelling or advertising material, or any
               other thing at all, that the authorised officer believes on reasonable
               grounds:
               (a) is evidence that an offence under this Act or the regulations
                     has been or is being committed, or



Page 24
Food Bill 2003                                                         Clause 39

Inspection and seizure powers                                          Part 4




             (b)    does not comply with a provision of this Act or the
                    regulations, or, in the case of food, is labelled or packaged in
                    a way that does not comply with a provision of this Act or the
                    regulations.
39    Search warrants
       (1)   An authorised officer may apply to an authorised justice for a search
             warrant if the authorised officer has reasonable grounds for
             believing that a provision of this Act or the regulations has been or
             is being contravened on premises.
       (2)   An authorised justice to whom an application is made under this
             section may, if satisfied that there are reasonable grounds for doing
             so, issue a search warrant authorising the authorised officer named
             in the warrant, when accompanied by a police officer, and such
             other person (if any) as is named in the warrant:
             (a) to enter the premises concerned, and
             (b) to search the premises for evidence of a contravention of this
                    Act or the regulations.
       (3)   Part 3 of the Search Warrants Act 1985 applies to a search warrant
             issued under this section.
40    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 duly made under this
             Division.
             Maximum penalty: 500 penalty units in the case of an individual and
             2,500 penalty units in the case of a corporation.
       (2)   Such a requirement is not duly made unless, at the time of the
             making of the requirement, the person of whom the requirement is
             made is informed by the authorised officer that a refusal or failure
             to comply with the requirement may constitute an offence.
41    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




                                                                           Page 25
Clause 42         Food Bill 2003

Part 4            Inspection and seizure powers




               been seized under this Act, unless it has been returned in accordance
               with Division 2 or an order disallowing the seizure has been made
               under that Division.
               Maximum penalty: 500 penalty units in the case of an individual and
               2,500 penalty units in the case of a corporation.
42       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.
               Maximum penalty: 500 penalty units in the case of an individual and
               2,500 penalty units in the case of a corporation.
43       Obstructing or impersonating authorised officers
         (1)   A person must not, without reasonable excuse, resist, obstruct, or
               attempt to obstruct, an authorised officer in the exercise of the
               authorised officer's functions under this Act.
         (2)   A person must not impersonate an authorised officer.
         (3)   A person must not threaten, intimidate or assault an authorised
               officer in the exercise of the authorised officer's functions under this
               Act.
               Maximum penalty: 500 penalty units.

Division 2           Items seized by authorised officers
44       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 where it was found or be
               removed to another place and detained there.
         (2)   If the item is to be detained in the premises where it was found, the
               authorised officer:
               (a) may place it in a room, compartment or cabinet in those
                      premises, and
               (b) may mark, fasten and seal the door or opening providing
                      access to that room, compartment or cabinet, and
               (c) must ensure that it is marked in such a way as to indicate that
                      it has been seized under this Act.


Page 26
Food Bill 2003                                                       Clause 45

Inspection and seizure powers                                        Part 4




45    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 the
             following:
             (a) a description of the items seized,
             (b) the reason for the seizure,
             (c) an explanation of the person's right to make an application to
                   the court under section 52 for an order disallowing the
                   seizure,
             (d) the address of the place where the item is held if the item has
                   been removed from the premises where it was seized,
             (e) the name of the enforcement agency to whom the authorised
                   officer reports.
46    Destruction of filthy, decomposed or putrid matter
             If an authorised officer who has seized food under this Part is
             satisfied that the food consists wholly or partly of filthy,
             decomposed or putrid matter or that it poses an immediate risk to
             health or property, the authorised officer (disregarding any
             provision to the contrary in this Part) may cause the food to be
             destroyed.
47    Return of seized item
             If, before any item seized under this Part is forfeited to the Crown
             under this Division, the enforcement agency concerned becomes
             satisfied that there has been no contravention of this Act or the
             regulations of which the item is evidence, the enforcement agency
             must, as soon as practicable, cause the item to be delivered to:
             (a) the person from whom it was seized, or
             (b) such other person as appears to the enforcement agency to be
                    entitled to it.




                                                                         Page 27
Clause 48         Food Bill 2003

Part 4            Inspection and seizure powers




48       Forfeiture of item
         (1)   An item seized under this Part is forfeited to the Crown:
               (a) on the expiration of the period allowed by section 52 for the
                     making of an application for an order disallowing the seizure
                     if the item has not been dealt with under section 47 and no
                     application under section 52 has been made within that
                     period, or
               (b) if an application for an order disallowing the seizure has been
                     made under section 52 but the application has been refused or
                     has been withdrawn before a decision on the application has
                     been made, on the date on which the application is refused or
                     withdrawn.
         (2)   An item forfeited to the Crown under this section may be destroyed,
               sold or otherwise disposed of as the enforcement agency concerned
               may, generally or in a particular case, direct.
49       Cost of destruction or disposal of forfeited item
         (1)   A person who was the owner of an item immediately before its
               forfeiture under this Division is liable for any cost incurred by or on
               behalf of the enforcement agency concerned in connection with the
               lawful destruction or disposal of the item (including any storage
               costs) and any such cost is taken to be a debt due to the enforcement
               agency from that person.
         (2)   In any proceedings for the recovery of the debt, a certificate signed
               by the enforcement agency stating the amount of any costs and the
               manner in which they were incurred is evidence of the matters
               certified.
50       Return of forfeited item
         (1)   An item seized under this Part that is forfeited under this Division
               and that has not been destroyed or otherwise disposed of in a manner
               that would prevent its return must, as soon as practicable, be
               delivered to the person from whom it was seized, or such other
               person as appears to the enforcement agency concerned to be
               entitled to it, if the enforcement agency becomes satisfied that no
               contravention of this Act or the regulations 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 28
Food Bill 2003                                                         Clause 51

Inspection and seizure powers                                          Part 4




51    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 the period allowed by section 52 for
             the making of an application for an order disallowing the seizure has
             expired and no application has been made.
       (2)   An enforcement agency is, on an application made in accordance
             with this section, to pay such compensation as is just and reasonable
             in relation to any item seized under this Part by an authorised officer
             appointed by it if:
             (a) no contravention of this Act or the regulations has been
                    committed in relation to the item, and
             (b) the item cannot be returned or has in consequence of the
                    seizure depreciated in value.
       (3)   An enforcement agency required to make a determination under
             subsection (2) as to the payment of compensation is to send written
             notification of its determination to the person from whom the item
             was seized and any person seeking compensation under this section.
       (4)   If an enforcement agency determines to pay compensation under
             this section in relation to an item, the compensation is to be paid to
             the person from whom the item was seized, or such other person as
             appears to the enforcement agency to be entitled to it.
       (5)   A person from whom an item was seized under this Part, or any
             other person who has sought compensation under this section, who
             is dissatisfied with a determination by an enforcement agency under
             this section as to the payment of such compensation may apply to
             the Administrative Decisions Tribunal for a review of the
             determination within 10 days after the date on which notification of
             the determination was received.
52    Application for order disallowing seizure
       (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 District Court or a Local Court for an
             order disallowing the seizure.
       (2)   The application is to be made in accordance with the rules
             governing the court and is not to be heard unless the applicant has
             previously served a copy of the application on the enforcement
             agency concerned.



                                                                           Page 29
Clause 53         Food Bill 2003

Part 4            Inspection and seizure powers




53       Enforcement agency entitled to answer application
               The enforcement agency concerned is entitled to appear as
               respondent at the hearing of an application made under section 52.
54       Order disallowing seizure of item
               The court, on the hearing of an application made under section 52,
               must make an order disallowing the seizure of an item if:
               (a) it is proved that the applicant would, but for the seizure, be
                     entitled to the item and it is not proved that an offence under
                     this Act or the regulations 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
                     circumstances justifying the making of such an order,
               but otherwise the court must refuse the application.
55       Ancillary orders
         (1)   In the event that the court makes an order for the return of any item
               seized under this Part, it must also make one or both of the following
               orders:
               (a) an order directing the respondent to cause the item to be
                      delivered to the applicant or to such other person as appears
                      to the court to be entitled to it,
               (b) if the item cannot for any reason be so delivered or has in
                      consequence of the seizure depreciated in value, an order
                      directing the enforcement agency concerned to pay to the
                      applicant such amount by way of compensation as the court
                      considers to be just and reasonable.
         (2)   Despite subsection (1), the court is not to award an amount of
               compensation that exceeds its general monetary jurisdiction.
         (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 is
               enforceable as a judgment of the court.




Page 30
Food Bill 2003                                                       Clause 56

Inspection and seizure powers                                        Part 4




56    Adjournment pending hearing of other proceedings
             If on the hearing of an application made under section 52 it appears
             to the court that the item that is the subject of the application is
             required to be produced in evidence in any pending proceedings in
             connection with an offence under this Act or the regulations or
             under any other Act or regulations under any other Act, the court, on
             the application of the respondent or on its own motion, may adjourn
             the hearing until the conclusion of those proceedings.




                                                                         Page 31
Clause 57         Food Bill 2003

Part 5            Improvement notices and prohibition orders for premises or equipment




Part 5            Improvement notices and prohibition orders
                  for premises or equipment
57       Unclean or unfit premises, vehicles or equipment
               If an authorised officer believes, on reasonable grounds, that:
               (a) any premises used by a food business in connection with the
                      handling of food intended for sale or any equipment or food
                      transport vehicle is in an unclean or insanitary condition or is
                      otherwise unfit for the purpose for which it is designed or
                      intended to be used, or
               (b) any premises used by a food business in connection with the
                      handling of food intended for sale or any equipment or food
                      transport vehicle does not comply with a provision of the
                      Food Safety Standards, or
               (c) in relation to any premises used in connection with the
                      handling of food for sale or any food transport vehicle, any
                      relevant food safety program prepared in accordance with the
                      regulations is not being implemented adequately by a food
                      business, or
               (d) any provision of the Food Standards Code is being
                      contravened in relation to the handling of food intended for
                      sale on any premises or in any food transport vehicle used by
                      a food business in connection with the handling of food
                      intended for sale,
               the authorised officer may serve an improvement notice on the
               proprietor of the food business in accordance with this Part.
58       Improvement notice
         (1)   An improvement notice is to take the form of an order that:
               (a) premises, equipment or a food transport vehicle be put into a
                    clean and sanitary condition, or be repaired, to the satisfaction
                    of an authorised officer, or
               (b) equipment or a vehicle be replaced, or
               (c) a food safety program be prepared if required by the
                    regulations, or
               (d) a food safety program required by the regulations be revised
                    so as to comply with the requirements of the regulations, or




Page 32
Food Bill 2003                                                           Clause 59

Improvement notices and prohibition orders for premises or equipment     Part 5




                 (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 to be prepared by the regulations, or
                 (f)   in relation to the handling of food intended for sale, measures
                       be taken to implement the requirements of the Food Safety
                       Standards,
             within a period of 24 hours (or such longer period as is specified in
             the notice) after the service of the notice on the proprietor of the
             food business.
       (2)   Before the end of the period specified in the improvement notice,
             the authorised officer who issued the notice may, on his or her own
             motion or on the application of the proprietor of the food business,
             extend the period within which the proprietor of the food business
             is to take action in accordance with the notice.
       (3)   An improvement notice is to state that it is issued under this section.
59    Compliance with improvement notice
       (1)   If an improvement notice is complied with, an authorised officer is
             to note the date of compliance on a copy of the notice.
       (2)   An authorised officer must give a copy of an improvement notice,
             noted in accordance with this section, to the person on whom the
             improvement notice was served if requested to do so by the person.
60    Prohibition order
       (1)   If a regulatory authority or an enforcement agency believes, on
             reasonable grounds:
             (a) that any of the circumstances specified in section 57 (a), (b),
                   (c) or (d) exist, and
             (b) that:
                    (i) the proprietor of a food business has not complied with
                          an improvement notice within the time required by
                          section 58 for compliance, or
                   (ii) the issue of the order is necessary to prevent or mitigate
                          a serious danger to public health,
             the regulatory authority or the enforcement agency may serve a
             prohibition order on the proprietor of the food business in
             accordance with this Part.




                                                                             Page 33
Clause 61         Food Bill 2003

Part 5            Improvement notices and prohibition orders for premises or equipment




         (2)   A prohibition order is to take the form of an order that:
               (a) no food intended for sale is to be handled on specified
                    premises or a specified part of specified premises, or
               (b) no food intended for sale is to be conveyed in a specified
                    vehicle, or
               (c) specified equipment is not to be used in connection with food
                    intended for sale, or
               (d) no food intended for sale is to be handled by a food business
                    in a specified way or for a specified purpose,
               until the proprietor of the food business has been given a certificate
               of clearance stating that the premises, part of the premises, vehicle
               or equipment may be used for the handling or conveyance of food
               intended for sale, or for use in connection with such food, or that the
               food may be handled in the specified way or for the specified
               purpose, as the case may be.
         (3)   A prohibition order is to state that it is issued under this section.
         (4)   The regulatory authority or person that made the order must give a
               certificate of clearance if, after an inspection of the premises, part of
               the premises, vehicle or equipment, or the way of handling food,
               specified in the prohibition order, the regulatory authority or person
               finds, by the regulatory authority's or person's own inspection or
               the report of an authorised officer, that:
               (a) the premises, part of the premises, vehicle or equipment, or
                      the handling of food by the food business in the specified way
                      or for the specified purpose, is not a serious danger to public
                      health, and
               (b) the person on whom the prohibition order was served has
                      complied with the prohibition order and any improvement
                      notices served on the person.
61       Scope of notices and orders
               An improvement notice or a prohibition order may be made with
               respect to any one or more of the following:
               (a) any premises or any part of any premises, food transport
                     vehicle or equipment specified in the notice or order,
               (b) all equipment contained on any premises or any part of any
                     premises, or in a food transport vehicle, specified in the notice
                     or order, or any specified equipment so contained,



Page 34
Food Bill 2003                                                          Clause 62

Improvement notices and prohibition orders for premises or equipment    Part 5




                 (c)   the handling of food intended for sale by a food business in a
                       specified way or for a specified purpose.
62    Notices and orders to contain certain information
             An improvement notice or prohibition order under this Part:
             (a) must specify any provision of the Food Standards Code to
                  which it relates, and
             (b) may specify particular action to be taken by a person to ensure
                  compliance with the provision of the Food Standards Code to
                  which it relates.
63    Request for re-inspection
       (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 regulatory
             authority or person who made the order to cause the premises to be
             inspected by an authorised officer.
       (2)   The proprietor of the food business whose vehicle or equipment is
             affected by a prohibition order may at any time after the order has
             been served make a written request to the regulatory authority or
             person who made the order to cause the vehicle or equipment to be
             inspected by an authorised officer:
             (a) at the place where it was originally inspected, or
             (b) if it is not convenient for it to be inspected at that place, at
                   some other place that the regulatory authority or person who
                   made the order has agreed to.
       (3)   If a request for inspection is made under this section and the
             premises, vehicle or equipment concerned, through no fault of the
             proprietor of the food business, is not inspected by an authorised
             officer within the period of 48 hours of the receipt of the request by
             the regulatory authority or person, a certificate of clearance is taken
             to have been given to the proprietor of the food business under
             section 60.
64    Contravention of prohibition order
             A person must not contravene or fail to comply with a prohibition
             order served on the person under this Part.
             Maximum penalty: 500 penalty units in the case of an individual and
             2,500 penalty units in the case of a corporation.


                                                                            Page 35
Clause 65         Food Bill 2003

Part 5            Improvement notices and prohibition orders for premises or equipment




65       Review of decision to refuse certificate of clearance
               The proprietor of a food business on whom a prohibition order has
               been served may apply to the Administrative Decisions Tribunal for
               a review of a decision of the regulatory authority or the person who
               made the order to refuse to give a certificate of clearance under
               section 60 to the proprietor.
66       Compensation
         (1)   A person bound by a prohibition order who suffers loss as a result
               of the making of the order may apply to the regulatory authority or
               person who made the order for compensation if the person bound by
               the order considers that there were no grounds for the making of the
               order.
         (2)   If there were no grounds for the making of the order, the regulatory
               authority or enforcement agency is to pay such compensation to the
               applicant as is just and reasonable.
         (3)   The regulatory authority or enforcement agency is to send written
               notification of its determination as to the payment of compensation
               under this section to each applicant for the payment of such
               compensation.
         (4)   If the regulatory authority or enforcement agency has not
               determined an application for compensation under this section
               within 28 days of receiving the application, the regulatory authority
               or 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 regulatory authority
               or enforcement agency as to the refusal to pay compensation or as
               to the amount of compensation may apply to the Administrative
               Decisions 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 28 days after
                     the expiration of the 28-day period referred to in that
                     subsection.




Page 36
Food Bill 2003                                                       Clause 67

Taking and analysis of samples                                       Part 6




Part 6           Taking and analysis of samples
Division 1          Taking of samples
67    Proprietor to be informed
             Whenever an authorised officer obtains a sample of food for the
             purposes of analysis, an authorised officer must, either before or as
             soon as practicable after obtaining the sample, inform:
             (a) the proprietor of the food business from which the sample is
                   to be 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,
             of the authorised officer's intention to have the sample analysed.
68    Payment for sample
             An authorised officer when obtaining a sample of food must pay, or
             tender 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,
             to the person from whom the sample is obtained.
69    Samples from vending machines
             Sections 67 and 68 do not apply to the obtaining of a sample by an
             authorised officer from a vending machine if the authorised officer
             obtains the sample by making proper payment for it and the
             authorised officer cannot identify anyone who at the time appears to
             be in charge of the machine.
70    Packaged food
             An authorised officer who takes a sample of food for the purposes
             of this Act that is contained in a closed package intended for retail
             sale must take the whole of the package unless the package contains
             two or more smaller packages of the same food.




                                                                         Page 37
Clause 71         Food Bill 2003

Part 6            Taking and analysis of samples




71       Procedure to be followed
         (1)   This section applies to the taking of samples for the purposes of this
               Act except to the extent that the Food Standards Code otherwise
               provides.
         (2)   An authorised officer who obtains a sample of food for the purposes
               of analysis must (unless subsection (3) applies):
               (a) divide the sample into 3 separate parts and mark and seal or
                     fasten each part in such manner as its nature will permit, and
               (b) leave one part with the proprietor of the food business or any
                     other person from whom the sample was obtained or a person
                     appearing to be the employee or agent of that proprietor or
                     other person, and
               (c) submit one of the remaining parts for analysis, and
               (d) retain the other remaining part for future comparison.
         (3)   If the division of a sample for analysis into 3 separate parts in
               accordance with subsection (2) would in the opinion of the
               authorised officer:
               (a) so affect or impair the composition or quality of the sample as
                     to render the separate parts unsuitable for accurate analysis, or
               (b) result in the separate parts being of an insufficient size for
                     accurate analysis, or
               (c) render the sample in any other way unsuitable for analysis,
                     including a method of analysis prescribed by the regulations
                     in relation to the food from which the sample was taken,
               the authorised officer may take, in accordance with this section, as
               many samples as the authorised officer considers necessary to
               enable an accurate analysis to be carried out and may deal with the
               sample or samples in such manner as is appropriate in the
               circumstances.
         (4)   If a sample of food is taken by an authorised officer in the form of
               separate or severable objects, it is not necessary, in dividing that
               sample into parts in accordance with this section, to divide any one
               of those objects, and it is sufficient compliance with this section if
               the authorised officer:
               (a) takes a number of those objects, and
               (b) divides the number so taken into the requisite number of parts
                      so that each part consists of one or more than one of the
                      separate or severable objects, and


Page 38
Food Bill 2003                                                          Clause 72

Taking and analysis of samples                                          Part 6




                 (c)   deals with those parts in accordance with the preceding
                       provisions of this section.
72    Samples to be submitted for analysis
             An authorised officer must submit any sample obtained in
             accordance with this Division for analysis under Division 2 unless
             no longer of the opinion that the sample ought to be analysed.

Division 2             Procedures relating to analyses
73    Compliance with Food Standards Code
             A person who carries out an analysis for the purposes of this Act is
             to comply with any requirements of the Food Standards Code
             relating to the carrying out of analyses.
74    Certificate of analysis
       (1)   This section applies to an analysis that is carried out:
             (a) by an approved laboratory, or
             (b) by an approved analyst, or
             (c) under the supervision of an approved analyst,
             for the purposes of this Act.
       (2)   On completion of an analysis to which this section applies:
             (a) the person in charge of the laboratory at which the analysis
                  was carried out, or
             (b) the approved analyst who carried out the analysis, or
             (c) the approved analyst who supervised the carrying out of the
                  analysis,
             is to give the person who requested the analysis, or an agent of the
             person, a certificate of analysis, in the approved form, that complies
             with the requirements of subsection (3).
       (3)   The certificate of analysis must:
             (a) be dated and signed by the person in charge of the laboratory
                  at which the analysis was carried out or by the approved
                  analyst who carried out the analysis or who supervised the
                  carrying out of the analysis, and
             (b) contain a written report of the analysis that sets out the
                  findings, and



                                                                            Page 39
Clause 75            Food Bill 2003

Part 6               Taking and analysis of samples




               (c)      specify the requirements, if any, of the Food Standards Code
                        relating to the carrying out of the analysis and certify that the
                        analysis was carried out in accordance with those
                        requirements.

Division 3              Approval of laboratories
75       Approval of laboratories
         (1)   The regulatory authority may approve laboratories for the purposes
               of carrying out analyses under this Act.
         (2)   A person providing or intending to provide analysis services at a
               laboratory may make an application, in the approved form, to the
               regulatory authority for an approval of the laboratory under this
               Division.
         (3)   The application is to be accompanied by:
               (a) such information as the regulatory authority requires to
                    determine the application, and
               (b) the fee, if any, prescribed by the regulations.
         (4)   The regulatory authority may, after considering an application for
               approval:
               (a) grant the application, with or without conditions, or
               (b) refuse the application.
         (5)   If the regulatory authority grants an application for approval, it must
               issue the applicant with a written approval that sets out the
               conditions to which the approval is subject.
         (6)   If the regulatory authority refuses an application for approval, the
               regulatory authority must give notice of the refusal in writing to the
               applicant setting out the reasons for the refusal.
76       Term of approval
               Except during any period of suspension, an approval of a laboratory
               granted under this Division remains in force until cancelled.




Page 40
Food Bill 2003                                                         Clause 77

Taking and analysis of samples                                         Part 6




77    Approved laboratory to give notice of certain interests
             The person in charge of an approved laboratory must notify the
             regulatory authority of any direct or indirect interest in any food
             business that a person concerned in the management of, or an
             employee of, the approved laboratory has as soon as possible after
             becoming aware of that interest.
             Maximum penalty: 50 penalty units.
78    Variation of conditions or suspension or cancellation of approval of
      laboratory
       (1)   The regulatory authority may vary the conditions of, or suspend or
             cancel, the approval of a laboratory under this Division.
       (2)   An approval of a laboratory may be suspended or cancelled on one
             or more of the following grounds:
             (a) if the regulatory authority 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
                  or the regulations,
             (b) if the regulatory authority is satisfied that a person providing
                  services at the laboratory has contravened a condition to
                  which the approval is subject,
             (c) if the regulatory authority 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 regulatory authority, could affect the
                  carrying out of the laboratory's functions under this Act,
             (d) at the request of the person in charge of the laboratory,
             (e) for any other reason that the regulatory authority considers
                  appropriate.
       (3)   The regulatory authority may only vary the conditions of, or
             suspend or cancel, the approval of a laboratory:
             (a) after having given the person in charge of the laboratory:
                   (i) written reasons of its intention to vary, suspend or
                         cancel, and
                  (ii) an opportunity to make submissions, and
             (b) after having considered any submissions duly made by the
                  person.




                                                                           Page 41
Clause 79         Food Bill 2003

Part 6            Taking and analysis of samples




         (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, and
               (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.
79       Review of decisions relating to approval
         (1)   An applicant for an approval of a laboratory under this Division, or
               the holder of such an approval, may apply to the Administrative
               Decisions Tribunal for a review of any of the following decisions
               relating to the application or approval:
               (a) the grant or refusal of an application for approval of a
                      laboratory under this Division,
               (b) the imposition of conditions on an approval,
               (c) the variation of conditions of an approval,
               (d) the suspension or cancellation of an approval.
         (2)   An application under this section may only be made within 10 days
               after service of:
               (a) the relevant written approval or notice of refusal under section
                      75, in the case of an application for the review of a decision
                      referred to in subsection (1) (a) or (b), or
               (b) the relevant notice of the variation, suspension or cancellation
                      under section 78, in the case of an application for the review
                      of a decision referred to in subsection (1) (c) or (d).
80       List of approved laboratories to be maintained
         (1)   The regulatory authority is to prepare and maintain a list of
               approved laboratories.
         (2)   The list is to be made publicly available and is to be revised at least
               annually.




Page 42
Food Bill 2003                                                         Clause 81

Taking and analysis of samples                                         Part 6




Division 4          Approval of analysts
81    Approval of persons to carry out analyses
       (1)   The regulatory authority may approve natural persons for the
             purposes of carrying out analyses under this Act.
       (2)   A natural person may make an application, in the approved form, to
             the regulatory authority for an approval under this Division.
       (3)   The application is to be accompanied by:
             (a) such information as the regulatory authority requires to
                  determine the application, and
             (b) the fee, if any, prescribed by the regulations.
       (4)   The regulatory authority may, after considering an application for
             approval:
             (a) grant the application, with or without conditions, or
             (b) refuse the application.
       (5)   If the regulatory authority grants an application for approval, it must
             issue the applicant with a written approval that sets out the
             conditions to which the approval is subject.
       (6)   If the regulatory authority refuses an application for approval, the
             regulatory authority must give notice of the refusal in writing to the
             applicant setting out the reasons for the refusal.
82    Term of approval
             Except during any period of suspension, an approval of a person
             granted under this Division remains in force until cancelled.
83    Approved analyst to give notice of certain interests
             A person who is an approved analyst must notify the regulatory
             authority of any direct or indirect interest in any food business that
             the person has as soon as possible after becoming aware of that
             interest.
             Maximum penalty: 50 penalty units.
84    Variation of conditions or suspension or cancellation of approval of
      analyst
       (1)   The regulatory authority may vary the conditions of, or suspend or
             cancel, an approval under this Division.



                                                                           Page 43
Clause 85         Food Bill 2003

Part 6            Taking and analysis of samples




         (2)   An approval of a person under this Division may be suspended or
               cancelled on one or more of the following grounds:
               (a) if the regulatory authority is satisfied that the person has
                     wilfully or negligently contravened any provision of this Act
                     or the regulations,
               (b) if the regulatory authority is satisfied that the person has
                     contravened a condition to which the approval is subject,
               (c) if the regulatory authority is satisfied that the person has a
                     direct or indirect interest in any food business that, in the
                     opinion of the regulatory authority, could affect the carrying
                     out of the person's functions under this Act,
               (d) at the request of the person,
               (e) for any other reason that the regulatory authority considers
                     appropriate.
         (3)   The regulatory authority may only vary the conditions of, or
               suspend or cancel, the approval of a person under this Division:
               (a) after having given the person:
                     (i) written reasons of its intention to vary, suspend or
                           cancel, and
                    (ii) an opportunity to make submissions, and
               (b) after having considered any submissions duly made by the
                    person.
         (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,
               an approval of a person under this Division:
               (a) must be made by notice in writing, and
               (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.
85       Review of decisions relating to approval
         (1)   An applicant for an approval under this Division, or the holder of
               such an approval, may apply to the Administrative Decisions
               Tribunal for a review of any of the following decisions of the
               regulatory authority relating to the application or approval:




Page 44
Food Bill 2003                                                          Clause 86

Taking and analysis of samples                                          Part 6




                 (a)   the grant or refusal of an application for approval under this
                       Division, or
             (b)       the imposition of conditions on an approval, or
             (c)       the variation of conditions of an approval, or
             (d)       the suspension or cancellation of an approval.
       (2)   An application under this section may only be made within 10 days
             after service of:
             (a) the relevant written approval or notice of refusal under section
                    81, in the case of an application for the review of a decision
                    referred to in subsection (1) (a) or (b), or
             (b) the relevant notice of the variation, suspension or cancellation
                    under section 84, in the case of an application for the review
                    of a decision referred to in subsection (1) (c) or (d).
86    List of approved analysts to be maintained
       (1)   The regulatory authority is to prepare and maintain a list of
             approved analysts.
       (2)   The list is to be made publicly available and is to be revised at least
             annually.




                                                                            Page 45
Clause 87         Food Bill 2003

Part 7            Auditing




Part 7            Auditing
Division 1           Approval of food safety auditors
87       Approval of food safety auditors
         (1)   The regulatory authority may approve a natural person to be a food
               safety auditor for the purposes of this Act if the regulatory authority
               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
               (b) any guidelines relating to competency criteria approved by
                      the regulatory authority.
         (2)   A natural person may make an application, in the approved form, to
               the regulatory authority for an approval under this Part.
         (3)   The application is to be accompanied by:
               (a) such information as the regulatory authority requires to
                    determine the application, and
               (b) the fee, if any, prescribed by the regulations.
         (4)   The regulatory authority may, after considering an application for
               approval:
               (a) grant the application, with or without conditions, or
               (b) refuse the application.
         (5)   If the regulatory authority grants an application for approval, it must
               issue the applicant with a written approval that sets out any
               conditions to which the approval is subject.
         (6)   If the regulatory authority refuses an application for approval, the
               regulatory authority must give notice of the refusal in writing to the
               applicant setting out the reasons for the refusal.
88       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.




Page 46
Food Bill 2003                                                         Clause 89

Auditing                                                               Part 7




89    Food safety auditor to give notice of certain interests
       (1)   A food safety auditor must notify the regulatory authority of any
             direct or indirect interest in any food business that the auditor has as
             soon as possible after becoming aware of that interest.
             Maximum penalty: 50 penalty units.
       (2)   Payment to an auditor for carrying out the functions of an auditor
             does not constitute a direct or indirect interest in a food business for
             the purposes of subsection (1).
90    Variation of conditions or suspension or cancellation of approval of
      auditor
       (1)   The regulatory authority may vary the conditions of, or suspend or
             cancel, an approval under this Division.
       (2)   An approval of a person may be suspended or cancelled on one or
             more of the following grounds:
             (a) if the regulatory authority is satisfied that the person has
                  wilfully or negligently contravened any provision of this Act
                  or the regulations,
             (b) if the regulatory authority is satisfied that the person has
                  contravened a condition to which the approval is subject,
             (c) if the regulatory authority is satisfied that the person has not
                  competently carried out any duty of an auditor under this Act,
             (d) if the regulatory authority is satisfied that the person has a
                  direct or indirect interest in any food business that, in the
                  opinion of the regulatory authority, could affect the
                  performance of the person's duties under this Act,
             (e) at the request of the person,
              (f) for any other reason that the regulatory authority considers
                  appropriate.
       (3)   Payment to an auditor for performing the duties of an auditor does
             not constitute a direct or indirect interest in a food business for the
             purposes of subsection (2) (d).
       (4)   The regulatory authority may only vary the conditions of, or
             suspend or cancel, the approval of a person:
             (a) after having given the person:
                   (i) written reasons of its intention to vary, suspend or
                         cancel, and



                                                                            Page 47
Clause 91            Food Bill 2003

Part 7               Auditing




                        (ii) an opportunity to make submissions, 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.
         (6)   A variation of the conditions of, or the suspension or cancellation of,
               the approval of a person under this Part:
               (a) must be by notice in writing, and
               (b) must be served on the person to whom the approval relates,
                     and
               (c) takes effect on the day on which the notice is served or on a
                     later day specified in the notice.
91       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 Administrative Decisions
               Tribunal for a review of any of the following decisions of the
               regulatory authority relating to the application or approval:
               (a) the grant or refusal of an application for an approval under
                     this Division,
               (b) the imposition of conditions on an approval,
               (c) the variation of conditions of an approval,
               (d) the suspension or cancellation of an approval.
         (2)   An applicant for an approval under this Division, or the holder of
               such an approval may apply to the regulatory authority for a review
               of any of the following decisions relating to the application or
               approval if the decision was made by a body acting under a
               delegation given by the regulatory authority:
               (a) the grant or refusal of an application for an approval under
                     this Division,
               (b) the imposition of conditions on an approval,
               (c) the variation of conditions of an approval,
               (d) the suspension or cancellation of an approval.
         (3)   An application under this section may only be made within 10 days
               after service of:




Page 48
Food Bill 2003                                                             Clause 92

Auditing                                                                   Part 7




                 (a)   the relevant written approval or notice of refusal under section
                       87, 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), or
             (b)       the relevant notice of the variation, suspension or cancellation
                       under section 90, 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).

Division 2             Auditing and reporting requirements
92    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 preparation,
             implementation, maintenance or monitoring of a food safety
             program for the food business is complied with.
             Maximum penalty: 500 penalty units in the case of an individual and
             2,500 penalty units in the case of a corporation.
       (2)   The proprietor of a food business must ensure that any food safety
             program required to be prepared by the regulations in relation to the
             food business is audited at least as frequently as is determined under
             section 93 (1), or as redetermined under section 96, in relation to the
             food business.
             Maximum penalty: 500 penalty units in the case of an individual and
             2,500 penalty units in the case of a corporation.
93    Priority classification system and frequency of auditing
       (1)   The appropriate enforcement agency must determine:
             (a) the priority classification of individual food businesses 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 to be prepared by the regulations in relation to the
                  food businesses.
       (2)   The determination must be made having regard to a priority
             classification system for types of food businesses approved by the
             regulatory authority.
       (3)   The appropriate enforcement agency must provide written
             notification to the proprietor of a food business of:



                                                                               Page 49
Clause 94            Food Bill 2003

Part 7               Auditing




               (a)      the priority classification it has determined for the food
                        business, and
               (b)      the frequency of auditing of any food safety programs
                        required to be prepared by the regulations in relation to the
                        food business, and
               (c)      the date by which the food business must have implemented
                        any food safety program required to be prepared by the
                        regulations in relation to the food business.
         (4)   The appropriate enforcement agency may change the priority
               classification of an individual food business if the appropriate
               enforcement agency believes that the classification is inappropriate
               for any reason, including as a result of changes made to the conduct
               of the food business.
         (5)   The appropriate enforcement agency must provide written
               notification to the proprietor of a food business of any change in
               priority classification of the food business under subsection (4).
94       Duties of food safety auditors
               A food safety auditor has the following duties:
               (a) to carry out audits of any food safety programs required by the
                    regulations to be prepared in relation to food businesses
                    having regard to the requirements of the regulations,
               (b) to carry out any necessary follow-up action, including further
                    audits, if necessary, to determine whether action 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,
               (d) to report in accordance with section 95.
95       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 this Act.
         (2)   A report under subsection (1) must:
               (a) be in the prescribed form, and
               (b) be submitted to the appropriate enforcement agency within 21
                    days after the completion of the audit or assessment, and



Page 50
Food Bill 2003                                                         Clause 95

Auditing                                                               Part 7




                 (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
             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
             (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
             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
                   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 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
                   intended for sale, or
             (b) that will cause significant unsuitability of food intended for
                   sale,
             as soon as possible but in any event within 24 hours after the
             contravention comes to the food safety auditor's attention.
       (6)   A food safety auditor must report in writing to the appropriate
             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.
       (7)   A copy of a report provided to the appropriate enforcement agency
             in relation to an audit or assessment must be given to the proprietor
             of the food business concerned.



                                                                           Page 51
Clause 96         Food Bill 2003

Part 7            Auditing




96       Redetermination of frequency of auditing
         (1)   In this section:
               food safety program, in relation to a food business, means the food
               safety program (if any) 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 93.
         (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 initial audit frequency
               applicable to a food business within the relevant priority
               classification to another audit frequency.
         (3)   The audit frequency to which the initial frequency may be changed
               must be within the range of audit frequencies appropriate for food
               businesses within that relevant priority classification.
         (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 food
                    safety programs and the requirements of the Food Safety
                    Standards,
               (b) the audit compliance history (if any) established before the
                    commencement of this subsection.
97       Certificates of authority of food safety auditors
         (1)   The regulatory authority is to provide each food safety auditor with
               a certificate of authority as a food safety auditor.
         (2)   The certificate of authority:
               (a) must state that it is issued under this Act, and
               (b) must give the name of the person to whom it is issued and bear
                    a photograph of that person and the person's signature, and
               (c) must state the date, if any, on which it expires, and
               (d) must specify any conditions to which the person's approval is
                    subject, and
               (e) must bear the signature of the person by whom it is issued and
                    state the capacity in which the person is acting in issuing the
                    certificate.


Page 52
Food Bill 2003                                                         Clause 98

Auditing                                                               Part 7




98    List of food safety auditors to be maintained
       (1)   The regulatory authority is to prepare and maintain a list of food
             safety auditors.
       (2)   The list is to be made publicly available and is to be revised at least
             annually.
99    Obstructing or impersonating food safety auditors
       (1)   A person must not, without reasonable excuse, resist, obstruct or
             attempt to obstruct, a food safety auditor in the exercise of the food
             safety auditor's functions under this Act.
             Maximum penalty: 500 penalty units in the case of an individual and
             2,500 penalty units in the case of a corporation.
       (2)   A person who impersonates a food safety auditor is guilty of an
             offence.
             Maximum penalty: 500 penalty units.




                                                                           Page 53
Clause 100        Food Bill 2003

Part 8            Notification and registration of food businesses and approval of food
                  premises



Part 8            Notification and registration of food
                  businesses and approval of food premises
100      Notification of conduct of food businesses
               The proprietor of a food business must not conduct the food
               business unless the proprietor has given written notice, in the
               approved form, of the information specified in the Food Safety
               Standards that is to be notified to the appropriate enforcement
               agency before the business is conducted.
               Maximum penalty: 500 penalty units in the case of an individual and
               1,200 penalty units in the case of a corporation.
101      Exemption in relation to notification of information
               Section 21 (to the extent to which it requires notification of the
               information referred to in section 100) and section 100 do not apply
               to the following food businesses:
               (a) any food business that is not required by the Food Safety
                      Standards to notify that information, or
               (b) any food business that is registered under this Act or under a
                      law prescribed by the regulations.
102      Registration of food businesses
         (1)   The proprietor of a food business that is required by the regulations
               to be registered under this Part must not carry on the food business
               unless it is registered under this Part.
               Maximum penalty: 500 penalty units in the case of an individual and
               1,200 penalty units in the case of a corporation.
         (2)   The appropriate enforcement agency may register a food business
               for the purposes of this Part.
         (3)   The proprietor of a food business may make an application, in the
               approved form, to the appropriate enforcement agency for the
               registration of the food business under this Part.
         (4)   The application is to be accompanied by:
               (a) if required by the appropriate enforcement agency, the design
                    and fitout specifications, in a form approved by the
                    appropriate enforcement agency, of any premises or proposed
                    premises on which food is to be handled in the course of
                    carrying on the food business, and


Page 54
Food Bill 2003                                                          Clause 103

Notification and registration of food businesses and approval of food   Part 8
premises



              (b)      such other information as the appropriate enforcement agency
                       requires to determine the application, and
                 (c)   the fee, if any, prescribed by the regulations.
       (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.
       (6)    If the appropriate enforcement agency grants an application for
              registration, it must issue the applicant with a certificate of
              registration that sets out the conditions to which the registration is
              subject.
       (7)    If the appropriate enforcement agency refuses an application for
              registration, the appropriate enforcement agency must give notice of
              the refusal in writing to the applicant setting out the reasons for the
              refusal.
103    Renewal of registration
       (1)    The holder of a certificate of registration under this Part may, at any
              time during the currency of the registration, apply to the appropriate
              enforcement agency for a renewal of the registration.
       (2)    The application is to be accompanied by such fee, if any, as is
              prescribed by the regulations.
       (3)    The appropriate enforcement agency may, after considering an
              application for renewal of registration:
              (a) grant the application, with or without conditions, or
              (b) refuse the application.
       (4)    If the appropriate enforcement agency grants an application for
              renewal of registration, the registration is renewed by the issue of a
              further certificate of registration:
              (a) that takes effect from the expiry of the holder's current
                    certificate of registration, or
              (b) if the certificate is issued after that expiry--that takes effect,
                    or is taken to have effect, from the date specified in the
                    certificate.




                                                                            Page 55
Clause 104        Food Bill 2003

Part 8            Notification and registration of food businesses and approval of food
                  premises


         (5)   If the appropriate enforcement agency refuses an application for
               renewal of registration, the appropriate enforcement agency must
               give notice of the refusal in writing to the applicant setting out the
               reasons for the refusal.
         (6)   Nothing in this section gives any force to a certificate of registration
               that has expired or been cancelled, or otherwise affects the operation
               of section 104.
104      Term of registration
               Except during any period of suspension, the registration of a food
               business granted under this Part remains in force for the period
               specified in the certificate unless sooner cancelled.
105      Variation of conditions or suspension or cancellation of registration
         of food businesses
         (1)   The appropriate enforcement agency may vary the conditions of, or
               suspend or cancel, the registration of a food business under this Part.
         (2)   The registration of a food business may be suspended or cancelled
               on one or more of the following grounds:
               (a) if the appropriate enforcement agency is satisfied that there
                     has been a contravention of any provision of this Act or the
                     regulations in the conduct of the food business,
               (b) if the appropriate enforcement agency is satisfied that a
                     condition to which the registration is subject is being
                     contravened by the food business,
               (c) at the request of the holder of the certificate of registration,
               (d) for any other reason that the appropriate enforcement agency
                     considers appropriate.
         (3)   The appropriate enforcement agency may only vary the conditions
               of, or suspend or cancel, the registration of a food business under
               this Part:
               (a) after having given the holder of the certificate of registration:
                       (i) written notice of its intention to vary, suspend or cancel
                            the registration setting out its reasons, and
                      (ii) an opportunity to make submissions, and
               (b) after having considered any submissions duly made by the
                      holder.




Page 56
Food Bill 2003                                                          Clause 106

Notification and registration of food businesses and approval of food   Part 8
premises



       (4)    Subsection (3) does not apply to the cancellation of registration at
              the request of the holder of the certificate of registration.
       (5)    A variation of the conditions of, or the suspension or cancellation of,
              the registration of premises:
              (a) must be made by notice in writing, and
              (b) must be served on the holder of the certificate of registration,
                    and
              (c) takes effect on the day on which the notice is served or on a
                    later day specified in the notice.
106    Review of decisions relating to registration
       (1)    An applicant for registration of a food business under this Part, or
              the holder of any such registration, may apply to the Administrative
              Decisions Tribunal for a review of any of the following decisions of
              an enforcement agency relating to the application or registration:
              (a) the grant or refusal of an application for the registration, or the
                    renewal of registration, of a food business under this Part,
              (b) the imposition of conditions on the registration of a food
                    business,
              (c) the variation of conditions of the registration of a food
                    business,
              (d) the suspension or cancellation of the registration of a food
                    business.
       (2)    An application under this section may only be made within 10 days
              after:
              (a) the issue of the relevant certificate of registration under
                     section 102 (6) or 103 (4) or the service of the relevant notice
                     of refusal under section 102 (7) or 103 (5), in the case of an
                     application for the review of a decision referred to in
                     subsection (1) (a) or (b), or
              (b) the service of the relevant notice of the variation, suspension
                     or cancellation under section 105 (5), in the case of an
                     application for the review of a decision referred to in
                     subsection (1) (c) or (d).
107    Register of food businesses to be maintained
       (1)    Each enforcement agency is to prepare and maintain a list of:
              (a) food businesses notified to it under section 100, and


                                                                            Page 57
Clause 107           Food Bill 2003

Part 8               Notification and registration of food businesses and approval of food
                     premises


               (b)      food businesses registered by it under section 102.
         (2)   The list is to be made publicly available and is to be revised at least
               annually.




Page 58
Food Bill 2003                                                        Clause 108

Administration                                                        Part 9




Part 9           Administration
Division 1         Regulatory authority
108   Functions of the regulatory authority in relation to this Act
             The regulatory authority has such functions in relation to the
             administration of this Act as are conferred or imposed on it by or
             under this Act.
109   Delegation
       (1)   The regulatory authority may delegate to:
             (a) a member of staff of the regulatory authority, or
             (b) an authorised officer, or
             (c) the holder of an office prescribed by the regulations,
             any function of the regulatory authority under this Act that is not
             specified in subsection (2).
       (2)   The following functions of the regulatory authority cannot be
             delegated:
             (a) the power of delegation conferred by this section,
             (b) any function under Part 3 (Emergency powers),
             (c) any function under section 111 (Conditions on exercise of
                   functions by enforcement agencies).
       (3)   A delegate may sub-delegate to a person referred to in subsection
             (1) any function delegated by the regulatory authority if the delegate
             is authorised in writing to do so by the regulatory authority.
       (4)   A function must not be delegated under this section to an
             enforcement agency without the consent in writing of the
             enforcement agency.

Division 2         Functions of enforcement agencies
110   Functions of enforcement agencies in relation to this Act
       (1)   An enforcement agency has such functions in relation to the
             administration of this Act as are conferred or imposed on it by or
             under this Act or are delegated to it under this Act.
       (2)   A function conferred specifically on an enforcement agency (other
             than the regulatory authority) by this Act cannot be delegated.


                                                                          Page 59
Clause 111        Food Bill 2003

Part 9            Administration




111      Conditions on exercise of functions by enforcement agencies
               The regulatory authority, after consultation with an enforcement
               agency, may, in writing, impose conditions or limitations on the
               exercise of functions under this Act by the enforcement agency.
112      Exercise of functions by enforcement agencies
         (1)   The regulatory authority may adopt national guidelines relating to
               the exercise of its functions under this Act and may require other
               enforcement agencies and authorised officers to adopt those
               guidelines in the carrying out of their functions under this Act.
         (2)   In this section, national guidelines means guidelines prepared for
               the purposes of this section by the Commonwealth Food Authority.
113      Reports by enforcement agencies
         (1)   An enforcement agency (other than the regulatory authority) is to
               report to the regulatory authority, at such intervals as the regulatory
               authority requires, on the performance of functions under this Act
               by persons employed or engaged by the agency.
         (2)   In addition to any report required under subsection (1), an
               enforcement agency is to forward to the regulatory authority details
               of any proceedings for an offence under this Act or the regulations
               taken by an officer of the agency within one month of the
               proceedings being finally dealt with.

Division 3           Appointment of authorised officers
114      Appointment of authorised officers
         (1)   An enforcement agency may appoint a person to be an authorised
               officer for the purposes of this Act, but only if the enforcement
               agency considers the person has appropriate qualifications or
               experience to exercise the functions of an authorised officer.
         (2)   Each enforcement agency is to prepare and maintain a list of
               authorised officers appointed by it.
115      Certificates of authority
         (1)   An enforcement agency is to provide each authorised officer
               appointed by it with a certificate of authority as an authorised
               officer.




Page 60
Food Bill 2003                                                      Clause 116

Administration                                                      Part 9




       (2)   The functions of an authorised officer may be limited by the
             authorised officer's certificate of authority.
       (3)   The certificate of authority:
             (a) must state that it is issued under this Act, and
             (b) must give the name of the person to whom it is issued and bear
                  a photograph of that person and the person's signature, and
             (c) must state the date, if any, on which it expires, and
             (d) must specify any conditions to which the person's authority is
                  subject, and
             (e) must bear the signature of the person by whom it is issued and
                  state the capacity in which the person is acting in issuing the
                  certificate.
       (4)   An authorised officer is required to produce the certificate of
             authority:
             (a) if requested to do so by the proprietor of a food business
                   whose premises are entered by the authorised officer, or
             (b) if requested to do so by a person whom the authorised officer
                   requires to produce anything or to answer any question.

Division 4         Advisory committees
116   Establishment of advisory committees
       (1)   The Minister may establish advisory committees to assist the
             regulatory authority in the exercise of its functions.
       (2)   An advisory committee is to consist of members appointed from
             persons having expertise in one or more of the following areas:
             (a) the food industry,
             (b) public health,
             (c) the interests of consumers,
             (d) the enforcement of food legislation.
       (3)   In addition, the Minister may appoint as members of an advisory
             committee persons having expertise in nutrition, toxicology,
             microbiology and food technology and such other persons as the
             Minister considers have appropriate expertise, qualifications or
             experience as will enable them to make a valuable contribution to
             the advisory committee.



                                                                        Page 61
Clause 117        Food Bill 2003

Part 9            Administration




         (4)   The Minister may determine the term of office and remuneration of
               members and the procedure of an advisory committee.
117      Functions of advisory committees
               An advisory committee has the following functions:
               (a) to provide advice to the Minister and the regulatory authority
                    on any issue relating to food as the Minister or the regulatory
                    authority may require,
               (b) such other advisory functions relating to food as the Minister
                    may determine.




Page 62
Food Bill 2003                                                         Clause 118

Procedural and evidentiary provisions                                  Part 10




Part 10          Procedural and evidentiary provisions
118   Nature of proceedings for offences
       (1)   Proceedings for an offence under this Act or the regulations may be
             dealt with:
             (a) summarily before a Local Court, or
             (b) before the Supreme Court in its summary jurisdiction.
       (2)   If proceedings are brought before a Local Court, the maximum
             monetary penalty that the Local Court may impose for the offence
             is $10,000, despite any higher maximum monetary penalty provided
             in respect of the offence.
119   Institution of proceedings
       (1)   Proceedings for an offence under this Act or the regulations may
             only be instituted:
             (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 obtained.
       (2)   The court may extend the time referred to in subsection (1) for the
             institution of proceedings.
120   Penalty notices for certain offences
       (1)   An authorised officer may serve a penalty notice on a person if it
             appears to the officer that the person has committed an offence
             under this Act or the regulations, being an offence prescribed by the
             regulations.
       (2)   A penalty notice is a notice to the effect that, if the person served
             does not wish to have the matter determined by a court, the person
             may pay, within the time and to the person specified in the notice,
             the penalty prescribed by the regulations for the offence if dealt with
             under this section.
       (3)   A penalty notice is to be served personally or by post.
       (4)   If the amount of the penalty prescribed for an alleged offence is paid
             under this section, no person is liable to any further proceedings for
             the alleged offence.




                                                                           Page 63
Clause 121      Food Bill 2003

Part 10         Procedural and evidentiary provisions




      (5)    Payment under this section is not to be regarded as an admission of
             liability for the purpose of, nor in any way as affecting or
             prejudicing, any civil claim, action or proceeding arising out of the
             same occurrence.
      (6)    The regulations may:
             (a) prescribe an offence for the purposes of this section by
                   specifying the offence or by referring to the provision creating
                   the offence, and
             (b) prescribe the amount of penalty payable for the offence if
                   dealt with under this section, and
             (c) prescribe different amounts of penalties for different offences
                   or classes of offences.
      (7)    The amount of a penalty prescribed under this section for an offence
             must not exceed the maximum amount of penalty which could be
             imposed for the offence by a court.
      (8)    This section does not limit the operation of any other provision of,
             or made under, this or any other Act relating to proceedings that may
             be taken in respect of offences.
      (9)    In this section, authorised officer means a police officer, the
             Director-General or an authorised officer as defined in section 4 (1).
121   Offences by employers
      (1)    If an employee contravenes any provision of this Act or the
             regulations, the employer is taken to have contravened the same
             provision.
      (2)    It is a defence in proceedings against an employer for such a
             contravention if it is established that the employer could not, by the
             exercise of due diligence, have prevented the contravention.
      (3)    An employer may be proceeded against and convicted under a
             provision pursuant to this section whether or not the employee has
             been proceeded against or been convicted under that provision.
122   Offences by corporations
      (1)    If a corporation contravenes, whether by act or omission, any
             provision of this Act or the regulations, each person who is a
             director of the corporation or who is concerned in the management
             of the corporation is taken to have contravened the same provision,
             unless the person satisfies the court that:



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Food Bill 2003                                                             Clause 123

Procedural and evidentiary provisions                                     Part 10




                 (a)   the corporation contravened the provision without the
                       knowledge actual, imputed or constructive of the person, or
              (b)      the person was not in a position to influence the conduct of the
                       corporation in relation to its contravention of the provision, or
                 (c)   the person, if in such a position, used all due diligence to
                       prevent the contravention by the corporation.
       (2)   A person may be proceeded against and convicted under a provision
             pursuant to this section whether or not the corporation has been
             proceeded against or been convicted under that provision.
       (3)   Nothing in this section affects any liability imposed on a corporation
             for an offence committed by the corporation against this Act or the
             regulations.
       (4)   Without limiting any other law or practice regarding the
             admissibility of evidence, evidence that an officer, employee or
             agent of a corporation (while acting in his or her capacity as such)
             had, at any particular time, a particular intention, is evidence that the
             corporation had that intention.
123   Liability of employees and agents
       (1)   Except as provided by subsection (2), it is no defence in proceedings
             for an offence under this Act or the regulations that the defendant
             was, at the time of the commission of the offence, an employee or
             agent of another person.
       (2)   In any proceedings for an offence under this Act or the regulations,
             it is a defence for the defendant to prove that the defendant was
             under the personal supervision of the proprietor of the food
             business, or the owner or person in charge of the place or vehicle, in
             relation to which the offence was committed or of another person
             representing that proprietor, owner or person in charge.
124   Alternative verdicts for serious food offences
       (1)   If, on the trial of a person charged with an offence against section 13
             the trier of fact is not satisfied that the person committed the offence
             but is satisfied that the person committed an offence against section
             16 (1), the trier of fact may find the person not guilty of the offence
             charged but guilty of an offence against section 16 (1), and the
             person is liable to punishment accordingly.




                                                                               Page 65
Clause 125      Food Bill 2003

Part 10         Procedural and evidentiary provisions




      (2)    If, on the trial of a person charged with an offence against section
             14, the trier of fact is not satisfied that the person committed the
             offence but is satisfied that the person committed an offence against
             section 16 (2), the trier of fact may find the person not guilty of the
             offence charged but guilty of an offence against section 16 (2), and
             the person is liable to punishment accordingly.
125   No defence to allege deterioration of sample
             In any proceedings for an offence under this Act or the regulations,
             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.
126   Onus to prove certain matters on defendant
             In any proceedings for an offence under this Act or the regulations
             against a defendant who was responsible for making a statement on
             a package or in an advertisement relating to the origin or
             composition of the food in question or the therapeutic or nutritive
             properties of the food, being a statement that is alleged to have
             caused the food to be falsely described, the onus of proving the
             correctness of the statement is on the defendant.
127   Presumptions
             In any proceedings for an offence under this Act or the regulations,
             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 that was
                    sold or prepared for sale or conveyed or intended for sale was
                    sold, prepared, conveyed or intended for sale for human
                    consumption, and
             (b) any substance or thing capable of being used as food is not for
                    human consumption if it is prominently marked as not being
                    for human consumption, or with words to that effect, and
             (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, and
             (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, and



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Food Bill 2003                                                            Clause 128

Procedural and evidentiary provisions                                     Part 10




                 (e)   a person who sold food in the conduct of a food business and
                       was not the proprietor of the food business sold the food as the
                       agent of the proprietor, and
                 (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 food, as the case may be, and
              (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 regulatory authority, an
                       authorised officer, the person in charge of an approved
                       laboratory or an approved analyst is that signature.
128   Certificate evidence and evidence of analysts
       (1)   A certificate of the result of an analysis obtained by the defendant
             or the prosecution in proceedings for an offence under this Act or
             the regulations is admissible in any such proceedings and evidence
             of the facts stated in it if:
             (a) the certificate was issued in accordance with section 74, and
             (b) a copy of the certificate is served by the person who obtained
                    it on the other party to the proceedings at least 7 days before
                    the hearing.
       (2)   An analyst who carried out an analysis in relation to which a
             certificate is produced as evidence in proceedings as referred to in
             subsection (1) need not be called as a witness in the proceedings by
             the party producing the certificate unless the court hearing the
             proceedings so orders (whether on application made to it or by any
             other means).
       (3)   In any proceedings for an offence under this Act or the regulations,
             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, or
             (b) is an approved analyst, or
             (c) was acting under the supervision of an approved analyst.
       (4)   In any proceedings for an offence under this Act or the regulations:




                                                                               Page 67
Clause 129         Food Bill 2003

Part 10            Procedural and evidentiary provisions




             (a)      a document purporting to be a copy of any registration,
                      approval, order, notice or authority under this Act is evidence
                      of that registration, approval, order, notice or authority, or
             (b)      a document purporting to be signed by the regulatory
                      authority certifying that at a specified time or during a
                      specified 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
                      (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, or
             (c)      a document purporting to be signed by the regulatory
                      authority certifying:
                       (i) as to the receipt or otherwise of any notice, application
                             or payment, or
                      (ii) that any amount of fees or other money is payable under
                             this Act by a specified person and has not been paid at
                             the date of the certificate,
                      is evidence of the matters contained in the document.
129   Power of court to order further analysis
      (1)    In any proceedings for an offence under this Act or the regulations,
             the court may, if satisfied that:
             (a) there is a disagreement between the evidence of the analysts
                   for the parties to the proceedings, and
             (b) it is in the interests of justice to do so,
             order that the part or parts of any sample retained under section 71
             be sent by the enforcement agency concerned to an 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 is to make an analysis of that part or those parts for the
             information of the court.
      (4)    Subject to section 131, the cost of an analysis under this section is
             to be borne by the enforcement agency concerned.



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Food Bill 2003                                                         Clause 130

Procedural and evidentiary provisions                                  Part 10




130   Disclosure by witnesses
       (1)   In any proceedings for an offence under this Act or the regulations,
             a witness for the prosecution is not compelled to disclose the fact
             that the witness received information, the nature of the information
             received or the name of the person from whom the information was
             received.
       (2)   An authorised officer appearing as a witness in any proceedings is
             not compelled to produce any document containing any confidential
             matter made or received in his or her capacity as an authorised
             officer.
       (3)   Despite subsections (1) and (2), a court hearing proceedings for an
             offence under this Act or the regulations may order the disclosure of
             any matter, or the production of a document, referred to in those
             subsections if the court considers that it is necessary in the interests
             of justice.
131   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 or the
             regulations has power to make such orders as it thinks fit in respect
             of the costs and expenses of and incidental to the examination,
             seizure, detention, storage, analysis (including further analysis),
             destruction or other disposition of any thing the subject of those
             proceedings.
132   Court may order corrective advertising
             A court by which a person (in this section referred to as the
             defendant) is found guilty of an offence under Part 2, may make one
             or both of the following orders:
             (a) an order requiring the defendant to disclose in a particular
                   manner to the public, to a particular person or to a particular
                   class of persons specified information, or information of a
                   specified kind, which the defendant possesses or to which the
                   defendant has access,
             (b) an order requiring the defendant to publish, at his or her own
                   expense, in a manner and at times specified in the order,
                   advertisements the terms of which are specified in the order.




                                                                            Page 69
Clause 133      Food Bill 2003

Part 10         Procedural and evidentiary provisions




133   Information in relation to prosecutions to be forwarded to Director-
      General
             Whenever an information is laid by an employee of a council or a
             police officer against a person for an offence against this Act or the
             regulations, it is the duty of the council concerned or the
             Commissioner of Police, as the case requires, to forward to the
             regulatory authority, within one month after the prosecution is dealt
             with:
             (a) a copy of the information, and
             (b) particulars of the result of the prosecution.




Page 70
Food Bill 2003                                                       Clause 134

Miscellaneous                                                        Part 11




Part 11          Miscellaneous
134   Protection from personal liability
       (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 action, liability, claim or
             demand.
       (2)   In this section, protected person means any of the following:
             (a) the Minister,
             (b) any member of the enforcement agency or of the staff of the
                    enforcement agency,
             (c) an authorised officer,
             (d) any person acting under the direction of an enforcement
                    agency,
             (e) any member of an advisory committee,
              (f) 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.
135   Exclusion of liability of the State and others
       (1)   This section applies to civil proceedings for damages or other
             compensation brought against the State, the regulatory authority or
             other enforcement agency or a protected person referred to in
             section 134.
       (2)   Damages or other compensation is not payable in any such civil
             proceedings to the extent that:
             (a) the claim is made in connection with the handling, sale or
                  consumption of food, and
             (b) the claim is based on alleged negligence or other breach of
                  duty (including statutory duty) arising because of the exercise
                  of, or the failure to exercise, any function under this Act.
       (3)   This section does not affect any entitlement to compensation
             expressly conferred by this Act.




                                                                         Page 71
Clause 136      Food Bill 2003

Part 11         Miscellaneous




136   Disclosure of certain confidential information
      (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 disclosure is
             made:
             (a) with the consent of the person from whom the information
                   was obtained, or
             (b) in connection with the administration or execution of this Act,
                   or
             (c) for the purposes of any legal proceedings arising out of this
                   Act or of any report of any such proceedings, or
             (d) in accordance with a requirement imposed by or under this
                   Act or any other law, or
             (e) to a person administering or enforcing a law of another
                   jurisdiction that corresponds to this Act or any other law
                   prescribed by the regulations, or
              (f) to the Commonwealth Food Authority, or
             (g) to a law enforcement authority, or
             (h) with other lawful excuse.
             Maximum penalty: 500 penalty units.
      (2)    A person is not guilty of an offence under this section if the
             information was publicly available at the time the disclosure
             concerned was made.
137   Publication of names of offenders
      (1)    The regulatory authority may publish a notification under this
             section in the Gazette or in a newspaper circulating in this State in
             respect of any person who is convicted of an offence under this Act
             or the regulations relating to the handling or sale of food or an
             employee or agent of whom has been convicted of such an offence.
      (2)    The notification may only be published within 21 days after the
             conviction unless an appeal is made against the conviction.
      (3)    If an appeal is made against the conviction, a notification under this
             section must not be published unless a final order has been made on
             appeal affirming the conviction, in which case, the notification may
             only be published within 21 days of the final order being made.



Page 72
Food Bill 2003                                                         Clause 138

Miscellaneous                                                          Part 11




       (4)   A notification under this section may contain:
             (a) the address of the relevant person's place of business, and
             (b) the trade or company name under which the company trades,
                   if relevant, and
             (c) a description of the nature of the offence, the decision of the
                   court, the penalty imposed or any forfeiture incurred, and
             (d) such other information relating to the safety of the food
                   concerned as the regulatory authority thinks necessary.
       (5)   No liability is incurred by a person for publishing in good faith:
             (a) a notification under this section, or
             (b) a fair report or summary of such a notification.
138   Act to bind Crown
             This Act binds the Crown in right of New South Wales and, in so far
             as the legislative power of the Parliament of New South Wales
             permits, the Crown in all its other capacities.
139   Regulations
       (1)   The Governor may make regulations, not inconsistent with this Act,
             for or with respect to any matter that by this Act is required or
             permitted to be prescribed or that is necessary or convenient to be
             prescribed for carrying out or giving effect to this Act, including the
             following:
             (a) requiring 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,
             (b) fees or charges for the purposes of this Act, including (but not
                   limited to) fees or charges for the provision of information, or
                   for the carrying out of any inspection or analysis (whether or
                   not the inspection or analysis was requested or agreed to), or
                   in connection with the notification of the use of any food
                   business or the registration of any food business,
             (c) fees for the making of applications under this Act,
             (d) requirements for the notification by food businesses of
                   information relating to the conduct of those food businesses,
             (e) regulating or prohibiting any activity relating to the handling
                   or sale of food.



                                                                           Page 73
Clause 140      Food Bill 2003

Part 11         Miscellaneous




      (2)    A regulation may create an offence punishable by a penalty not
             exceeding 25 penalty units.
      (3)    The regulations may apply, adopt or incorporate, whether wholly or
             in part or with or without modifications, any standard, code (except
             the Food Standards Code) or other document as in force from time
             to time or as in force at a particular time.
140   Temporary emergency regulations modifying the 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 the Code apply in this State.
      (2)    A regulation made for the purposes of this section must not be made
             unless the Minister has certified that such a regulation is necessary
             as it relates to an issue of public health and safety.
      (3)    A provision of a regulation made for the purposes of this section
             does not continue in force:
             (a) except as provided by paragraph (b), for a period that is more
                   than 12 months, or
             (b) if the provision is the same in substance as a provision of a
                   regulation that was previously in force under this Act, for a
                   period that, when added to the period for which that previous
                   provision was in force, is more than 12 months.
141   Other regulations modifying the 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 the Code apply in this State.
      (2)    A regulation made for the purposes of this section must not be made
             unless the Minister has certified that such a regulation does not have
             a significant impact on the implementation and enforcement of
             uniform food laws in Australia.
      (3)    A regulation made for the purposes of this section may be made only
             with the approval of the Premier.
142   Repeals
             The Food Act 1989 and the Food Regulation 2001 are repealed.



Page 74
Food Bill 2003                                                 Clause 143

Miscellaneous                                                  Part 11




143   Amendment of other Acts
             Each Act specified in Schedule 1 is amended as set out in that
             Schedule.
144   Savings, transitional and other provisions
             Schedule 2 has effect.




                                                                   Page 75
               Food Bill 2003

Schedule 1     Amendment of other Acts




Schedule 1 Amendment of other Acts
                                                                  (Section 143)

1.1 Contaminated Land Management Act 1997 No 140
      Section 112 Regulations
      Omit "Section 88 of the Food Act 1989" from section 112 (5).
      Insert instead "Section 12 of the Food Act 2003".
1.2 Fair Trading Act 1987 No 68
      Schedules 1 and 2
      Omit "Food Act 1989" wherever occurring.
      Insert instead "Food Act 2003".
1.3 Fluoridation of Public Water Supplies Act 1957 No 58
      Section 8 Proof of certificate of analyst
      Omit "any person appointed by the Director-General of the Department of
      Health as an analyst under the Food Act 1989" from section 8 (3).
      Insert instead "any person who is an approved analyst within the meaning
      of the Food Act 2003".
1.4 Food Production (Safety) Act 1998 No 128
[1]   Sections 3 (1) (definition of "relevant Ministers"), 6 and 19 (4)
      Omit "Food Act 1989" wherever occurring.
      Insert instead "Food Act 2003".
[2]   Section 14 Authorised officers
      Omit "any person appointed under section 79 (1) of the Food Act 1989".
      Insert instead "an authorised officer within the meaning of the Food Act
      2003".




Page 76
Food Bill 2003

Amendment of other Acts                                                 Schedule 1




1.5 Local Government Act 1993 No 30
[1]   Section 22 Other functions
      Omit "Food Act 1989" from the note to that section.
      Insert instead "Food Act 2003".
[2]   Section 124 Orders
      Omit the matter relating to the Food Act 1989 from the note to the section.
      Insert instead:

       Food Act 2003       (by delegation) improvement notice or prohibition order

1.6 Protection of the Environment Operations Act 1997 No 156
      Section 323 Regulations
      Omit "Section 88 of the Food Act 1989" from section 323 (6).
      Insert instead "Section 12 of the Food Act 2003".
1.7 Search Warrants Act 1985 No 37
      Section 10 Definitions
      Omit "section 18 of the Food Act 1989" from the definition of search
      warrant.
      Insert instead "section 39 of the Food Act 2003".




                                                                            Page 77
                Food Bill 2003

Schedule 2      Savings, transitional and other provisions




Schedule 2 Savings, transitional and other provisions
                                                                      (Section 144)


Part 1       General
 1    Regulations
      (1)    The regulations may contain provisions of a savings or transitional
             nature consequent on the enactment of the following Acts:
             this Act
      (2)    If such a regulation so provides, it has effect despite any provision
             of this Act.
      (3)    Any such provision may, if the regulations so provide, take effect
             from the date of assent to the Act concerned or a later date.
      (4)    To the extent to which any such provision takes effect from a date
             that is earlier than the date of its publication in the Gazette, 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 date of its publication, or
             (b) to impose liabilities on any person (other than the State or an
                    authority of the State) in respect of anything done or omitted
                    to be done before the date of its publication.

Part 2       Provisions consequent on enactment of this
             Act
 2    Definition
             In this Part, former Act means the Food Act 1989.
 3    Inspectors
             A person appointed as an inspector for the purposes of the former
             Act and holding that position immediately before the
             commencement of section 114 of this Act is taken to have been
             appointed as an authorised officer under that section and the
             appointment is subject to the same conditions as were imposed on
             the original appointment.




Page 78
Food Bill 2003

Savings, transitional and other provisions                            Schedule 2




  4    Analysts and certificates
       (1)    A person appointed as an analyst for the purposes of the former Act
              and holding that position immediately before the commencement of
              section 81 of this Act is taken to have been approved as an analyst
              under that section and the approval is subject to the same conditions
              as were imposed on the original appointment.
       (2)    A certificate given under section 39 of the former Act by an analyst
              is, for the purposes of any proceedings under this Act, taken to be a
              certificate given under section 74 of this Act.
  5    Orders and clean-up notices
              An order or clean-up notice made under Part 4 of the former Act
              before its repeal by this Act continues to have effect, and may be
              enforced, as if that Act had not been repealed.




                                                                          Page 79


 


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