Queensland Bills Queensland Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Food Bill 2005
Queensland
Food Bill 2005
Contents
Page
Chapter 1 Preliminary
Part 1 Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Part 2 Application and purposes of Act
Division 1 Application
3 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4 Exemption from application of Act . . . . . . . . . . . . . . . . . . . . . . . . 14
5 General application of Act to ships . . . . . . . . . . . . . . . . . . . . . . . . 15
6 How Act affects particular rights and remedies . . . . . . . . . . . . . . 16
7 Act not affected by Food Production (Safety) Act 2000 . . . . . . . . 16
Division 2 Purposes of Act
8 Main purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9 How main purposes are primarily achieved . . . . . . . . . . . . . . . . . 16
Part 3 Interpretation
Division 1 Dictionary and notes in text
10 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11 Notes in text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Division 2 Particular definitions
12 Meaning of food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13 Meaning of food business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
14 Meaning of food standards code . . . . . . . . . . . . . . . . . . . . . . . . . 18
15 Meaning of handling of food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
16 Meaning of manufacture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17 Meaning of off-site catering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18 Meaning of on-site catering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19 Meaning of sell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2
Food Bill 2005
20 Meaning of unsafe food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
21 Meaning of unsuitable food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Part 4 Roles of the State and local governments
22 Provisions that are administered only by the State . . . . . . . . . . . 25
23 Provisions that are administered only by local governments . . . . 25
24 Provisions that are administered by both State and local
governments ................................... 25
25 When State and local governments administer this Act in
partnership ..................................... 25
26 Action by the State if local government does not administer and
enforce this Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
27 Procedure before taking action under s 26. . . . . . . . . . . . . . . . . . 27
28 State may require report from local government . . . . . . . . . . . . . 27
29 Chief executive may give report to local government . . . . . . . . . . 27
30 Local laws relating to purposes of Act . . . . . . . . . . . . . . . . . . . . . 28
31 Fees payable to local governments . . . . . . . . . . . . . . . . . . . . . . . 28
Chapter 2 Offences relating to food
Part 1 Serious offences relating to food
32 Handling of food in unsafe way. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
33 Sale of unsafe food. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
34 False description of food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Part 2 Other offences relating to food
35 Handling and sale of unsafe food . . . . . . . . . . . . . . . . . . . . . . . . . 29
36 Handling and sale of unsuitable food . . . . . . . . . . . . . . . . . . . . . . 29
37 Misleading conduct relating to sale of food . . . . . . . . . . . . . . . . . 30
38 Sale of unfit equipment or packaging or labelling material . . . . . . 30
39 Compliance with food standards code . . . . . . . . . . . . . . . . . . . . . 31
40 False descriptions of food. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
41 Application of provisions outside the State. . . . . . . . . . . . . . . . . . 32
Part 3 Defences
42 Defence relating to publication of advertisements . . . . . . . . . . . . 33
43 Defence relating to food for export . . . . . . . . . . . . . . . . . . . . . . . . 33
44 Defence of due diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
45 Disapplication of Criminal Code, ss 23 and 24. . . . . . . . . . . . . . . 35
46 Defence relating to handling food. . . . . . . . . . . . . . . . . . . . . . . . . 35
47 Defence relating to sale of unfit equipment or packaging or
labelling material ................................ 35
3
Food Bill 2005
Chapter 3 Licences for particular food businesses
Part 1 Preliminary
48 Meaning of licensable food business . . . . . . . . . . . . . . . . . . . . . . 36
Part 2 Offences about carrying on licensable food businesses
49 Licence required to carry on licensable food business. . . . . . . . . 38
50 Where licensee may carry on licensable food business . . . . . . . . 38
51 Licensee to comply with conditions of licence . . . . . . . . . . . . . . . 38
Part 3 Applications for, and issue of, licences
Division 1 Applications for licence
52 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
53 What the application must state . . . . . . . . . . . . . . . . . . . . . . . . . . 39
54 When food safety program is to accompany application . . . . . . . 41
55 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
56 Criteria for granting application . . . . . . . . . . . . . . . . . . . . . . . . . . 41
57 Suitability of person to hold licence . . . . . . . . . . . . . . . . . . . . . . . 42
58 Suitability of premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
59 Inquiry about application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Division 2 Decisions on applications for licence
60 Decision on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
61 Failure to decide application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
62 Further consideration of application . . . . . . . . . . . . . . . . . . . . . . . 45
63 Accreditation of food safety program on grant of application . . . . 46
Division 3 Provisional licences
64 Issue of provisional licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
65 When provisional licence ends . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
66 Extension of period for consideration of application if provisional
licence issued. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Part 4 Term and conditions of licences
67 Term of licence other than provisional licence . . . . . . . . . . . . . . . 48
68 Term of provisional licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
69 Conditions of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Part 5 Renewal, restoration or amendment of licences
Division 1 Preliminary
70 Application of pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
71 Notice of imminent expiry of licence. . . . . . . . . . . . . . . . . . . . . . . 51
4
Food Bill 2005
Division 2 Renewal, restoration and amendment
Subdivision 1 Applications
72 Application for renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
73 Application for restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
74 Application for amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Subdivision 2 Inquiries about applications and continuation of licences
75 Inquiry about application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
76 Licence continues pending decision about renewal or restoration 54
77 Failure to decide application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Part 6 Suspension or cancellation of licences
78 Grounds for suspension or cancellation . . . . . . . . . . . . . . . . . . . . 55
79 Show cause notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
80 Representations about show cause notice. . . . . . . . . . . . . . . . . . 57
81 Ending show cause process without further action . . . . . . . . . . . 57
82 Suspension or cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
83 Immediate suspension of licence . . . . . . . . . . . . . . . . . . . . . . . . . 58
84 Return of cancelled or suspended licence to local government . . 59
Part 7 Other provisions about licences and licensees
Division 1 Requirements for applications
85 General requirements for applications under ch 3 . . . . . . . . . . . . 60
Division 2 Food safety supervisors
86 Licensee to have food safety supervisor . . . . . . . . . . . . . . . . . . . 60
87 Availability of food safety supervisor. . . . . . . . . . . . . . . . . . . . . . . 61
88 Licensee to advise local government about food safety
supervisor ..................................... 61
Division 3 Carrying on licensable food business from mobile premises
89 Obligations of licensee while in second local government's area. 62
90 Action that may be taken by second local government . . . . . . . . 62
91 Notification to first local government . . . . . . . . . . . . . . . . . . . . . . 62
92 Action that may be taken by first local government . . . . . . . . . . . 63
Division 4 General provisions
93 Licence issued to more than 1 person . . . . . . . . . . . . . . . . . . . . . 63
94 Form of licence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
95 Surrender of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
96 Application for replacement of licence . . . . . . . . . . . . . . . . . . . . . 64
97 Decision about application for replacement of licence . . . . . . . . . 64
5
Food Bill 2005
Chapter 4 Food safety programs
Part 1 Preliminary
98 Content of food safety program . . . . . . . . . . . . . . . . . . . . . . . . . . 65
99 Who must have accredited food safety program . . . . . . . . . . . . . 66
100 Other persons may have accredited food safety program . . . . . . 67
101 Particular persons taken to have applied for accreditation of food
safety program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Part 2 Applications for accreditation of food safety programs
102 Application for accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
103 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
104 Criteria for accrediting food safety program . . . . . . . . . . . . . . . . . 68
105 Inquiry about application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
106 Decision on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
107 Failure to decide application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
108 Further consideration of application . . . . . . . . . . . . . . . . . . . . . . . 70
Part 3 Matters about compliance audits for accredited food safety
programs
109 Frequency of compliance audits. . . . . . . . . . . . . . . . . . . . . . . . . . 71
110 Changing frequency of compliance audits . . . . . . . . . . . . . . . . . . 72
111 Limitation on frequency of compliance audits . . . . . . . . . . . . . . . 72
Part 4 Amendment of accredited food safety programs
Division 1 Amendment by holder of accredited food safety program
112 Application for approval of amendment . . . . . . . . . . . . . . . . . . . . 73
113 Inquiry about application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Division 2 Amendment of accredited food safety program--local
government's initiative
114 Local government may direct holder to amend accredited food
safety program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
115 Amending accredited food safety program . . . . . . . . . . . . . . . . . . 76
Part 5 Cancellation of accreditation, and surrender, of particular
food safety programs
116 Application of pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
117 Grounds for cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
118 Show cause notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
119 Representations about show cause notice. . . . . . . . . . . . . . . . . . 77
120 Ending show cause process without further action . . . . . . . . . . . 78
121 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
122 Surrender of accredited food safety program . . . . . . . . . . . . . . . . 79
6
Food Bill 2005
Part 6 Other provisions about accredited food safety programs
123 Obligation to comply with accredited food safety program . . . . . . 79
124 Keeping copy of accredited food safety program . . . . . . . . . . . . . 79
125 Inspection of accredited food safety program. . . . . . . . . . . . . . . . 79
126 Offence about advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Chapter 5 Auditors
Part 1 Functions and approval of auditors
Division 1 Functions
127 Auditor's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Division 2 Obtaining approval as auditor
128 Application for approval as auditor . . . . . . . . . . . . . . . . . . . . . . . . 81
129 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
130 Criteria for granting application . . . . . . . . . . . . . . . . . . . . . . . . . . 81
131 Suitability of person to be an auditor . . . . . . . . . . . . . . . . . . . . . . 81
132 Inquiry about application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
133 Decision on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
134 Failure to decide application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Part 2 Term and conditions of approval
135 Term of approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
136 Conditions of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
137 Auditor to comply with conditions of approval . . . . . . . . . . . . . . . 84
Part 3 Renewal of approvals
138 Application for renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
139 Inquiry about application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
140 Approval continues pending decision about renewal . . . . . . . . . . 85
Part 4 Amending conditions of approvals--application by auditor
141 Application by auditor to amend conditions of approval . . . . . . . . 86
142 Inquiry about application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
143 Failure to decide application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Part 5 Suspension or cancellation of approvals
144 Grounds for suspension or cancellation . . . . . . . . . . . . . . . . . . . . 87
145 Show cause notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
146 Representations about show cause notice. . . . . . . . . . . . . . . . . . 89
147 Ending show cause process without further action . . . . . . . . . . . 89
148 Suspension or cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
149 Immediate suspension of approval. . . . . . . . . . . . . . . . . . . . . . . . 90
150 Return of cancelled or suspended approval to chief executive . . 91
7
Food Bill 2005
Part 6 General provisions
151 Applications--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
152 Form of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
153 Surrender of approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
154 Application for replacement of approval . . . . . . . . . . . . . . . . . . . . 92
155 Decision about application for replacement of approval . . . . . . . . 93
Chapter 6 Audits of accredited food safety programs
Part 1 Preliminary
156 Purpose of ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Part 2 Audits
Division 1 Compliance audits
157 First compliance audit of accredited food safety program . . . . . . 94
158 Particular licensee to have compliance audits conducted . . . . . . 94
Division 2 Check audits and nonconformance audits
159 Check audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
160 Nonconformance audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Division 3 Auditors' reports and responsibilities
161 Report about audit for compliance or nonconformance audit. . . . 95
162 Auditor's responsibility to inform local governments. . . . . . . . . . . 97
Part 3 Other matters
163 Obstructing auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
164 Impersonating auditor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Chapter 7 Monitoring and enforcement
Part 1 Authorised persons
Division 1 Preliminary
165 Powers generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
166 Powers of particular authorised persons limited to local
government area ................................ 99
167 Functions of authorised person . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Division 2 Appointment of authorised persons
168 Appointment and qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . 99
169 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . 100
170 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
171 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . 101
172 When authorised person ceases to hold office . . . . . . . . . . . . . . 101
173 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
174 Return of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
8
Food Bill 2005
Part 2 Powers of authorised persons
Division 1 Entry of places
175 Power to enter places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Division 2 Procedure for entry
176 Entry with consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
177 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
178 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
179 Application by electronic communication and duplicate warrant . 105
180 Defect in relation to a warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
181 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . 107
Division 3 General powers
182 General powers after entering places . . . . . . . . . . . . . . . . . . . . . 108
183 Failure to help authorised person . . . . . . . . . . . . . . . . . . . . . . . . . 109
184 Failure to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Division 4 Stopping or moving motor vehicles
185 Stopping or moving motor vehicle . . . . . . . . . . . . . . . . . . . . . . . . 110
Division 5 Power to seize evidence
186 Seizing evidence at a place that may be entered without
consent or warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
187 Seizing evidence at a place that may only be entered with
consent or warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Division 6 Dealing with seized things
188 Securing seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
189 Tampering with seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
190 Powers to support seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
191 Authorised person may require thing's return. . . . . . . . . . . . . . . . 114
192 Receipts for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
193 Forfeiture of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
194 Return of seized things. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
195 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
196 Power of destruction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Division 7 Power to obtain information
197 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . 117
198 Failure to give name or address . . . . . . . . . . . . . . . . . . . . . . . . . . 118
199 Power to require production of documents . . . . . . . . . . . . . . . . . . 118
200 Failure to produce document . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
201 Failure to certify copy of document. . . . . . . . . . . . . . . . . . . . . . . . 119
9
Food Bill 2005
202 Power to require information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Division 8 Emergency powers of authorised persons
203 Application of div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
204 Power and procedure for entry . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
205 Power in relation to food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
206 How power may be exercised. . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
207 Failure to comply with authorised person's directions in
emergency ................................... 122
208 Authorised person's powers not affected . . . . . . . . . . . . . . . . . . . 122
Division 9 Improvement notices
209 Improvement notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
210 Approval for particular improvement notice . . . . . . . . . . . . . . . . . 124
211 Record of compliance with improvement notice . . . . . . . . . . . . . . 124
Part 3 General enforcement matters
Division 1 Notice of damage and compensation
212 Notice of damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
213 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Division 2 Other matters
214 Obstructing authorised person . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
215 Impersonating authorised person. . . . . . . . . . . . . . . . . . . . . . . . . 127
Part 4 Emergency powers of chief executive
216 Making of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
217 Nature of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
218 Special provisions relating to recall orders . . . . . . . . . . . . . . . . . . 128
219 Way of making orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
220 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
221 Failure to comply with order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Part 5 Injunctions
222 Application of pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
223 Who may apply for an injunction . . . . . . . . . . . . . . . . . . . . . . . . . 131
224 District Court's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
225 Terms of injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
226 Undertakings as to damages or costs . . . . . . . . . . . . . . . . . . . . . 132
Chapter 8 Analysis of things
Part 1 State analysts and approval of laboratories
227 Appointment and qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . 133
228 Appointment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
10
Food Bill 2005
229 When State analyst ceases to hold office . . . . . . . . . . . . . . . . . . 133
230 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
231 Chief executive may approve laboratory. . . . . . . . . . . . . . . . . . . . 134
Part 2 Other matters about analysis of things
232 Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
233 Certificate must indicate methodology used. . . . . . . . . . . . . . . . . 135
234 Giving results of analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
235 Prohibition about use of results of analysis . . . . . . . . . . . . . . . . . 135
Chapter 9 Reviews and appeals
Part 1 Internal review of decisions
236 Appeal process starts with internal review . . . . . . . . . . . . . . . . . . 136
237 Application for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
238 Applying for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
239 Review decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
240 Stay of operation of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Part 2 Appeals
241 Who may appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
242 Starting appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
243 Stay of operation of review decision . . . . . . . . . . . . . . . . . . . . . . . 139
244 Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
245 Court's powers on appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
246 Appeal to District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Chapter 10 Legal proceedings
Part 1 Application
247 Application of ch 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Part 2 Evidence
248 Appointments and authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
249 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
250 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Part 3 Proceedings
251 Summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
252 Alternative verdicts for serious food offences . . . . . . . . . . . . . . . . 144
253 Independent analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
254 Allegations of false or misleading information or document . . . . . 145
255 Recovery of costs of investigation . . . . . . . . . . . . . . . . . . . . . . . . 145
256 Application for order for payment of costs under s 255 . . . . . . . . 146
257 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
11
Food Bill 2005
258 Dealing with forfeited thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
259 Responsibility for acts or omissions of representative . . . . . . . . . 147
260 Executive officers must ensure corporation complies with Act. . . 148
261 Fines payable to local government . . . . . . . . . . . . . . . . . . . . . . . . 148
Chapter 11 Miscellaneous
Part 1 Guidelines and registers of auditors and food businesses
Division 1 Guidelines
262 Chief executive may make guidelines. . . . . . . . . . . . . . . . . . . . . . 149
263 Availability of guideline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Division 2 Registers
264 Chief executive to keep registers . . . . . . . . . . . . . . . . . . . . . . . . . 150
265 Content of registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
266 Availability of registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Part 2 Offences about false or misleading statements or
documents
267 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . 152
268 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Part 3 Prescribed contaminants in food
269 Definition for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
270 Notice of isolation of prescribed contaminant. . . . . . . . . . . . . . . . 153
271 Chief executive may give direction . . . . . . . . . . . . . . . . . . . . . . . . 155
Part 4 Other matters
272 Confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
273 Service of documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
274 Protecting officials from liability . . . . . . . . . . . . . . . . . . . . . . . . . . 157
275 Particular premises taken to be within local government area . . . 158
276 Delegation by chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
277 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
278 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Chapter 12 Repeal and transitional provisions
Part 1 Repeal provision
279 Repeal of Food Act 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Part 2 Transitional provisions
Division 1 Preliminary
280 Definitions for pt 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Division 2 Transitional references
281 References to repealed Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
12
Food Bill 2005
Division 3 Other transitional provisions
282 Continuation of order under repealed Act, s 8 . . . . . . . . . . . . . . . 161
283 Continuation of order under repealed Act, pt 3 . . . . . . . . . . . . . . 161
284 Application for compensation under repealed Act . . . . . . . . . . . . 162
285 Continuation of orders under repealed Act, s 21 . . . . . . . . . . . . . 163
286 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
287 Dealing with articles seized under repealed Act. . . . . . . . . . . . . . 164
288 Direction about isolation of prescribed pathogen . . . . . . . . . . . . . 165
289 Continuation of particular licences under former regulation . . . . . 165
290 Lapsing of licences under former regulation . . . . . . . . . . . . . . . . 166
291 Application for particular licence under former regulation . . . . . . 167
292 Application for renewal of particular licence under former
regulation ...................................... 167
293 Lapsing of other applications relating to licences under former
regulation ....................................... 168
294 Lapsing of registration under former regulation . . . . . . . . . . . . . . 168
295 Lapsing of applications relating to registration under former
regulation ....................................... 168
296 Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Chapter 13 Amendment of Act
297 Act amended in sch 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Schedule 1 Amendment of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Food Production (Safety) Act 2000 . . . . . . . . . . . . . . . . . . . . . . . 170
Schedule 2 Changes to food standards code . . . . . . . . . . . . . . . . . . . . . . . 171
Schedule 3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
2005
A Bill
for
An Act to provide for matters relating to handling and selling
food, securing the safety and suitability of food and fixing
standards for food, and for other purposes
s1 14 s4
Food Bill 2005
The Parliament of Queensland enacts-- 1
Chapter 1 Preliminary 2
Part 1 Introduction 3
1 Short title 4
This Act may be cited as the Food Act 2005. 5
2 Commencement 6
This Act commences on a day to be fixed by proclamation. 7
Part 2 Application and purposes of 8
Act 9
Division 1 Application 10
3 Act binds all persons 11
(1) This Act binds all persons. 12
(2) However, this Act does not bind the State or a government 13
owned corporation. 14
4 Exemption from application of Act 15
(1) This Act does not apply to-- 16
(a) the handling or sale of food at a tuckshop operated by a 17
parents and citizens association at a State school; or 18
s5 15 s5
Food Bill 2005
(b) the handling, at a person's home, of food intended to be 1
given away to a non-profit organisation for sale by the 2
organisation. 3
4
Example--
5
baking a cake at a person's home to give to a junior football club
6
committee for sale by the committee at a fundraising stall
(2) In this section-- 7
parents and citizens association means a parents and citizens 8
association formed under the Education (General Provisions) 9
Act 1989. 10
State school see the Education (General Provisions) Act 11
1989, section 2(1).1 12
5 General application of Act to ships 13
(1) This section states the application of this Act to ships in 14
Queensland waters and ships in waters beyond the outer limit 15
of Queensland waters (other waters). 16
(2) This Act applies to-- 17
(a) a ship in Queensland waters; and 18
(b) to the extent this Act applies in other waters, for 19
example, under the Crimes at Sea Act 2001--a ship in 20
other waters if the ship is travelling from a place in 21
Queensland to a place in Queensland. 22
(3) This Act does not apply to-- 23
(a) a ship in other waters if the ship is travelling from a 24
place outside of Queensland to a place outside of 25
Queensland; or 26
(b) a ship of the Australian Defence Force or another 27
country. 28
1 Education (General Provisions) Act 1989, section 2--
State school means a school at which primary, secondary or special education is
provided by the State.
s6 16 s9
Food Bill 2005
6 How Act affects particular rights and remedies 1
(1) No provision of this Act creates a civil cause of action based 2
on a contravention of the provision. 3
(2) This Act does not affect or limit a civil right or remedy that 4
exists apart from this Act, whether at common law or 5
otherwise. 6
(3) Without limiting subsection (2), compliance with this Act 7
does not necessarily show that a civil obligation that exists 8
apart from this Act has been satisfied or has not been 9
breached. 10
7 Act not affected by Food Production (Safety) Act 2000 11
The Food Production (Safety) Act 2000 is additional to, and 12
does not limit, this Act. 13
Division 2 Purposes of Act 14
8 Main purposes 15
The main purposes of this Act are as follows-- 16
(a) to ensure food for sale is safe and suitable for human 17
consumption; 18
(b) to prevent misleading conduct relating to the sale of 19
food; 20
(c) to apply the food standards code. 21
9 How main purposes are primarily achieved 22
The main purposes are to be achieved primarily by-- 23
(a) providing for the licensing of particular food businesses; 24
and 25
(b) requiring particular licensees to have an accredited food 26
safety program; and 27
(c) providing for the accreditation and auditing of food 28
safety programs; and 29
s 10 17 s 12
Food Bill 2005
(d) providing for the monitoring and enforcement of 1
compliance with this Act and the food standards code. 2
Part 3 Interpretation 3
Division 1 Dictionary and notes in text 4
10 Definitions 5
The dictionary in schedule 3 defines particular words used in 6
this Act. 7
11 Notes in text 8
A note in the text of this Act is part of the Act. 9
Division 2 Particular definitions 10
12 Meaning of food 11
(1) Food includes-- 12
(a) a substance or thing of a kind used, or represented as 13
being for use, for human consumption (whether it is raw, 14
prepared or partly prepared); and 15
(b) a substance or thing of a kind used, or represented as 16
being for use, as an ingredient or additive in a substance 17
or thing mentioned in paragraph (a); and 18
(c) a substance used in preparing a substance or thing 19
mentioned in paragraph (a) if it comes into direct 20
contact with the substance or thing mentioned in that 21
paragraph, including, for example, a processing aid; and 22
(d) chewing gum or an ingredient or additive in chewing 23
gum, or a substance used in preparing chewing gum; 24
and 25
s 13 18 s 14
Food Bill 2005
(e) water, other than reticulated water, that is-- 1
(i) for sale by retail (whether it is packaged for sale or 2
not); and 3
(ii) intended for human consumption; and 4
(f) water that is carried in bulk in a vehicle and intended for 5
human consumption, regardless of the source of the 6
water; and 7
8
Example of a source of water--
9
a reticulated water supply system
(g) reticulated water on premises where a food business is 10
carried on; and 11
(h) a substance or thing declared to be a food under a 12
declaration in force under the Food Standards Australia 13
New Zealand Act 1991 (Cwlth), section 3B; 14
whether or not the substance, thing, chewing gum or water is 15
in a condition fit for human consumption. 16
(2) However, food does not include a therapeutic good within the 17
meaning of the Therapeutic Goods Act 1989 (Cwlth). 18
13 Meaning of food business 19
Food business means a business, enterprise or activity that 20
involves-- 21
(a) the handling of food intended for sale; or 22
(b) the sale of food; 23
regardless of whether the business, enterprise or activity 24
concerned is of a commercial, charitable or community nature 25
and whether it involves the handling or sale of food on 1 26
occasion only. 27
14 Meaning of food standards code 28
(1) Subject to subsection (2), food standards code means the 29
Australia New Zealand Food Standards Code as defined in the 30
Food Standards Australia New Zealand Act 1991 (Cwlth). 31
(2) In applying the food standards code for this Act-- 32
s 15 19 s 16
Food Bill 2005
(a) the code applies with the changes-- 1
(i) stated in schedule 2; or 2
(ii) prescribed under a regulation made under section 3
278(2)(a); and 4
5
Note--
6
A regulation made under section 278(2)(a) expires 1 year
7
after it is made.
(b) clause 9 of standard 1.6.2, standard 3.2.1, clause 4 of 8
standard 3.2.2 and chapter 4 of the code2 do not apply. 9
15 Meaning of handling of food 10
Handling, of food, includes the making, manufacturing, 11
producing, collecting, extracting, processing, storing, 12
transporting, delivering, preparing, treating, preserving, 13
packing, cooking, thawing, serving and displaying of food. 14
16 Meaning of manufacture 15
(1) Manufacture, in relation to food, includes the following-- 16
(a) making food by combining ingredients; 17
18
Examples--
19
· producing frozen meals in a factory
20
· producing cake mixes
(b) significantly changing the condition or nature of food by 21
any process; 22
23
Examples--
24
· milling flour
25
· peeling, cutting and freezing vegetables
(c) bottling or canning food, including, for example, 26
bottling water or canning fruit; 27
2 Food standards code, standard 1.6.2 (Processing requirements), clause 9 (Production
of uncooked comminuted fermented meat (UCFM)), standard 3.2.1 (Food Safety
Programs), standard 3.2.2 (Food Safety Practices and General Requirements), clause
4 (Notification) and chapter 4 (Primary production standards)
s 17 20 s 17
Food Bill 2005
(d) packing unpackaged food, other than unprocessed 1
primary produce; 2
3
Example--
4
packing bulk ground coffee into packages for retail sale
(e) making ice. 5
(2) However, manufacture, in relation to food, does not include 6
the following-- 7
(a) preparing food at a particular place for retail sale at the 8
place, including sale for immediate consumption; 9
10
Examples--
11
· preparing food at a restaurant for sale to a person dining in
12
the restaurant
13
· preparing and packing sandwiches in a package at a cafe for
14
retail sale at the cafe
(b) preparing food for a food business that involves off-site 15
catering; 16
(c) making ice at a particular place for use at the place; 17
(d) changing the condition of food merely by changing its 18
temperature. 19
17 Meaning of off-site catering 20
(1) Off-site catering, in relation to a food business, means serving 21
potentially hazardous food at a place other than the principal 22
place of business for the food business. 23
(2) Off-site catering does not include-- 24
(a) merely delivering food under an arrangement with, or on 25
the order of, a consumer; or 26
27
Example--
28
delivering pizzas from a takeaway pizza shop
(b) the sale of food from mobile premises or temporary 29
premises. 30
31
Example--
32
the sale of ice-creams from a mobile ice-cream van
s 18 21 s 19
Food Bill 2005
18 Meaning of on-site catering 1
(1) On-site catering, in relation to a food business, means 2
preparing and serving potentially hazardous food, to all 3
consumers of the food at the premises from which the 4
business is carried on, under an agreement under which the 5
food is-- 6
(a) of a predetermined type; and 7
(b) for a predetermined number of persons; and 8
(c) served at a predetermined time; and 9
(d) for a predetermined cost. 10
(2) On-site catering does not include-- 11
(a) preparing and serving food at an eating establishment; 12
or 13
(b) merely preparing and displaying food for self-service by 14
consumers. 15
16
Example for paragraph (b)--
17
preparing food for consumption from a buffet at a restaurant
(3) In this section-- 18
eating establishment means a restaurant, cafe or similar food 19
business that involves the preparation and service of food on 20
the order of a person for immediate consumption by the 21
person. 22
19 Meaning of sell 23
(1) Sell includes-- 24
(a) barter, offer or attempt to sell; and 25
(b) receive for sale; and 26
(c) have in possession for sale; and 27
(d) display for sale; and 28
(e) cause or permit to be sold or offered for sale; and 29
(f) send, forward or deliver for sale; and 30
(g) dispose of in any way for valuable consideration; and 31
s 19 22 s 19
Food Bill 2005
(h) dispose of to an agent for sale on consignment; and 1
(i) provide under a contract of service; and 2
(j) in relation to food, supply the food as a meal or part of a 3
meal to an employee, under a term of an award 4
governing the employment of the employee or a term of 5
the employee's contract of service, for consumption by 6
the employee at the employee's place of work; and 7
(k) dispose of by way of raffle, lottery or other game of 8
chance; and 9
(l) offer as a prize or reward; and 10
(m) give away for the purpose of advertisement or in 11
furtherance of trade or business; and 12
(n) in relation to food, supply the food under a contract 13
(whether or not the contract is made with the consumer 14
of the food), together with accommodation, service or 15
entertainment, in consideration of an inclusive charge 16
for the food supplied and the accommodation, service or 17
entertainment; and 18
(o) in relation to food, give the food away, from a food 19
business, to a person; and 20
(p) sell for the purpose of resale. 21
(2) However, sell does not include, in relation to food-- 22
(a) prepare the food at a private residence, and supply it at 23
the residence, to a person employed at the residence for 24
consumption by the person; or 25
26
Example--
27
preparing and supplying meals to a live-in gardener or
28
housekeeper
(b) prepare the food at a private residence and supply it at 29
the residence for a fee. 30
31
Examples--
32
· preparing and supplying food at a family home to a student
33
boarding in the home
34
· preparing and supplying food at the home of a person with a
35
disability as part of a home support service for the person
s 20 23 s 20
Food Bill 2005
(3) For this Act, food or equipment that is displayed for the 1
purpose of being offered as a prize or reward, or given away 2
for the purpose of advertisement or in the furtherance of trade 3
or business, is taken to have been displayed for sale by the 4
owner of the food or equipment. 5
(4) In this section-- 6
bed and breakfast facility means premises from which a food 7
business providing accommodation and breakfast for guests is 8
carried on, if the person who carries on the business lives at 9
the premises. 10
farmstay premises means premises on a farm, other than a 11
bed and breakfast facility, at which paying guests of the farm 12
are given food and accommodation. 13
private residence does not include the following-- 14
(a) premises in which a residential service under the 15
Residential Services (Accreditation) Act 2002 is 16
conducted; 17
(b) premises in which residential care within the meaning of 18
the Aged Care Act 1997 (Cwlth) is provided; 19
(c) farmstay premises; 20
(d) a bed and breakfast facility. 21
20 Meaning of unsafe food 22
(1) Food is unsafe at a particular time if it would be likely to 23
cause physical harm to a person who might later consume it, 24
assuming-- 25
(a) it was, after that particular time and before being 26
consumed by the person, properly subjected to all 27
processes, if any, that are relevant to its reasonable 28
intended use; and 29
(b) nothing happened to it after that particular time and 30
before being consumed by the person that would prevent 31
its being used for its reasonable intended use; and 32
(c) it was consumed by the person according to its 33
reasonable intended use. 34
s 21 24 s 21
Food Bill 2005
(2) However, food is not unsafe merely because its inherent 1
nutritional or chemical properties cause, or its inherent nature 2
causes, adverse reactions only in persons with allergies or 3
sensitivities that are not common to the majority of persons. 4
(3) In subsection (l)-- 5
processes include processes involving storage and 6
preparation. 7
21 Meaning of unsuitable food 8
(1) Food is unsuitable if it is food that-- 9
(a) is damaged, deteriorated or perished to an extent that 10
affects its reasonable intended use; or 11
(b) contains a damaged, deteriorated or perished substance 12
that affects its reasonable intended use; or 13
(c) is the product of a diseased animal, or an animal that has 14
died other than by slaughter, and has not been declared 15
under an Act to be safe for human consumption; or 16
(d) contains a biological or chemical agent, or other matter 17
or substance, that is foreign to the nature of the food. 18
(2) However, food is not unsuitable merely because-- 19
(a) it contains an agricultural or veterinary chemical in an 20
amount that does not contravene the food standards 21
code; or 22
(b) it contains a metal or non-metal contaminant (within the 23
meaning of the food standards code) in an amount that 24
does not contravene the permitted level for the 25
contaminant as stated in the food standards code; or 26
(c) it contains a matter or substance that is permitted by the 27
food standards code. 28
(3) In this section-- 29
animal includes an amphibian, bird, crustacean, fish, mollusc 30
and reptile. 31
slaughter, of an animal, includes the killing of an animal in 32
the process of capturing, taking or harvesting it for the 33
purposes of preparing it for use as food. 34
s 22 25 s 25
Food Bill 2005
Part 4 Roles of the State and local 1
governments 2
22 Provisions that are administered only by the State 3
(1) The following provisions of this Act are to be administered 4
and enforced by the State and not by local governments-- 5
(a) sections 34, 37, 38 and 39(2) to (4); 6
(b) chapter 5; 7
(c) section 159; 8
(d) chapter 7, part 4. 9
(2) This section is subject to section 25. 10
23 Provisions that are administered only by local 11
governments 12
(1) The following provisions of this Act are to be administered 13
and enforced by local governments and not by the State-- 14
(a) section 39(1); 15
(b) chapters 3 and 4; 16
(c) chapter 6, other than section 159. 17
(2) This section is subject to section 25. 18
24 Provisions that are administered by both State and local 19
governments 20
Sections 32, 33, 35 and 36 are to be administered and 21
enforced by the State and local governments. 22
25 When State and local governments administer this Act in 23
partnership 24
(1) The chief executive officer of a local government and the 25
chief executive may agree that-- 26
(a) the State do a thing in the administration or enforcement 27
of this Act for a matter mentioned in section 23(1); or 28
s 26 26 s 26
Food Bill 2005
(b) the local government do a thing in the administration or 1
enforcement of this Act for a matter mentioned in 2
section 22(1). 3
(2) For subsection (1)(a), the chief executive may perform 4
functions and exercise powers for this Act for a matter 5
mentioned in section 23(1). 6
(3) For subsection (1)(b), the chief executive officer may perform 7
functions and exercise powers for this Act for a matter 8
mentioned in section 22(1). 9
26 Action by the State if local government does not 10
administer and enforce this Act 11
(1) Subsection (2) applies if the chief executive-- 12
(a) is satisfied a local government has not done, or 13
sufficiently done, a thing in the administration or 14
enforcement of this Act for a matter mentioned in 15
section 23(1); and 16
(b) is reasonably of the opinion that doing the thing is 17
necessary-- 18
(i) to reduce a significant risk associated with the sale 19
of unsafe or unsuitable food; or 20
(ii) to prevent a significant risk to public health or 21
safety recurring. 22
(2) The chief executive may do the thing and the reasonable costs 23
and expenses incurred by the chief executive are a debt 24
payable by the local government to the State. 25
(3) For subsection (1)(b), in forming an opinion about whether 26
there is a significant risk associated with the sale of unsafe or 27
unsuitable food, or to public health or safety, the chief 28
executive must have regard to-- 29
(a) the potential consequences to the health of individuals; 30
and 31
(b) the number of persons likely to be exposed to the risk. 32
(4) For this section, the chief executive may perform functions 33
and exercise powers for this Act for a matter mentioned in 34
section 23(1). 35
s 27 27 s 29
Food Bill 2005
27 Procedure before taking action under s 26 1
Before the chief executive does a thing under section 26(2), 2
the chief executive must-- 3
(a) consult with the chief executive officer of the local 4
government; and 5
(b) give the local government a reasonable opportunity to 6
do the thing. 7
28 State may require report from local government 8
(1) This section applies to a matter under this Act administered 9
and enforced-- 10
(a) by both the State and local governments under section 11
24 or 25; or 12
(b) by local governments only. 13
(2) The chief executive, by notice, may ask a local government to 14
give the chief executive information about the local 15
government's administration and enforcement of the matter 16
within a stated reasonable time. 17
(3) The local government must comply with the request. 18
(4) However, before giving notice under this section, the chief 19
executive must consult with the chief executive officer of the 20
local government. 21
29 Chief executive may give report to local government 22
(1) The chief executive may give a local government a report 23
about the administration of this Act by the chief executive and 24
local governments. 25
(2) The report may contain information the chief executive 26
considers appropriate, including, for example, information 27
about the licensing of food businesses, or enforcement, under 28
this Act. 29
(3) The chief executive may give the report when the chief 30
executive considers it appropriate. 31
s 30 28 s 33
Food Bill 2005
30 Local laws relating to purposes of Act 1
A local government must not make a local law about a matter 2
relating to the purposes of this Act unless it is necessary to 3
make the law to carry out or give effect to the local 4
government's administration or enforcement of the Act. 5
31 Fees payable to local governments 6
(1) A local government may make a resolution or local law about 7
the fees payable to it for providing a service or taking action 8
under this Act. 9
(2) For a fee for providing a service or taking action, a resolution 10
or local law under subsection (1) may only prescribe a fee that 11
is not more than the cost to the local government of providing 12
the service or taking the action. 13
Chapter 2 Offences relating to food 14
Part 1 Serious offences relating to 15
food 16
32 Handling of food in unsafe way 17
A person must not handle food intended for sale in a way that 18
the person knows, or reasonably ought to know, will make, or 19
is likely to make, the food unsafe. 20
Maximum penalty--1350 penalty units or 2 years 21
imprisonment. 22
33 Sale of unsafe food 23
A person must not sell food that the person knows, or 24
reasonably ought to know, is unsafe. 25
s 34 29 s 36
Food Bill 2005
Maximum penalty--1350 penalty units or 2 years 1
imprisonment. 2
34 False description of food 3
(1) A person must not cause food intended for sale to be falsely 4
described if the person knows, or reasonably ought to know, 5
that a consumer of the food who relies on the description will, 6
or is likely to, suffer physical harm. 7
Maximum penalty--1350 penalty units or 2 years 8
imprisonment. 9
(2) A person must not sell food that the person knows, or 10
reasonably ought to know, is falsely described and will, or is 11
likely to, cause physical harm to a consumer of the food who 12
relies on the description. 13
Maximum penalty--1350 penalty units or 2 years 14
imprisonment. 15
Part 2 Other offences relating to food 16
35 Handling and sale of unsafe food 17
(1) A person must not handle food intended for sale in a way that 18
will make, or is likely to make, the food unsafe. 19
Maximum penalty--700 penalty units. 20
(2) A person must not sell food that is unsafe. 21
Maximum penalty--700 penalty units. 22
36 Handling and sale of unsuitable food 23
(1) A person must not handle food intended for sale in a way that 24
will make, or is likely to make, the food unsuitable. 25
Maximum penalty--550 penalty units. 26
(2) A person must not sell food that is unsuitable. 27
s 37 30 s 38
Food Bill 2005
Maximum penalty--550 penalty units. 1
(3) For the purposes of this section, it is immaterial whether the 2
food concerned is safe. 3
37 Misleading conduct relating to sale of food 4
(1) A person must not, in the course of carrying on a food 5
business, engage in conduct that is misleading or deceptive or 6
is likely to mislead or deceive in relation to the advertising, 7
packaging or labelling of food intended for sale or the sale of 8
food. 9
Maximum penalty--700 penalty units. 10
(2) A person must not, for the purpose of effecting or promoting 11
the sale of food in the course of carrying on a food business, 12
cause the food to be advertised, packaged or labelled in a way 13
that falsely describes the food. 14
Maximum penalty--700 penalty units. 15
(3) A person must not, in the course of carrying on a food 16
business, sell food that is packaged or labelled in a way that 17
falsely describes the food. 18
Maximum penalty--700 penalty units. 19
(4) Neither subsection (2) nor (3) limits the generality of 20
subsection (1). 21
38 Sale of unfit equipment or packaging or labelling material 22
(1) A person must not sell equipment that, if used for the 23
purposes for which it was designed or intended to be used-- 24
(a) would make or be likely to make food unsafe; or 25
(b) would put other equipment, or would be likely to put 26
other equipment, in a condition that, if the other 27
equipment were used for the purposes for which it was 28
designed or intended to be used, it would make, or be 29
likely to make, food unsafe. 30
Maximum penalty--700 penalty units. 31
s 39 31 s 40
Food Bill 2005
(2) A person must not sell packaging or labelling material that, if 1
used for the purposes for which it was designed or intended to 2
be used, would make or be likely to make food unsafe. 3
Maximum penalty--700 penalty units. 4
39 Compliance with food standards code 5
(1) A person must comply with a requirement imposed on the 6
person by a provision of the food standards code in relation to 7
the conduct of a food business or to food intended for sale or 8
food for sale. 9
Maximum penalty--700 penalty units. 10
(2) A person must not sell food that does not comply with a 11
requirement of the food standards code that relates to the 12
food. 13
Maximum penalty--700 penalty units. 14
(3) A person must not sell or advertise food that is packaged or 15
labelled in a way that contravenes a provision of the food 16
standards code. 17
Maximum penalty--700 penalty units. 18
(4) A person must not sell or advertise for sale food in a way that 19
contravenes a provision of the food standards code. 20
Maximum penalty--700 penalty units. 21
40 False descriptions of food 22
(1) For this chapter, food that is falsely described includes food to 23
which any 1 or more of the following paragraphs applies-- 24
(a) the food is represented as being of a particular nature or 25
substance for which there is a prescribed standard under 26
the food standards code and the food does not comply 27
with that prescribed standard; 28
(b) the food is represented as being of a particular nature or 29
substance and it contains, or is mixed or diluted with, 30
any substance in a quantity or proportion that 31
significantly diminishes its food value or nutritive 32
s 41 32 s 41
Food Bill 2005
properties as compared with food of the represented 1
nature or substance; 2
(c) the food is represented as being of a particular nature or 3
substance and it contains, or is mixed or diluted with, a 4
substance of lower commercial value than food of the 5
represented nature or substance; 6
(d) the food is represented as being of a particular nature or 7
substance and a constituent of the food has been wholly 8
or partly removed so that its properties are diminished as 9
compared with food of the represented nature or 10
substance; 11
(e) a word, statement, device or design used in the 12
packaging or labelling of the food, or in an 13
advertisement for the food, would create a false 14
impression about the nature or substance of the food, or 15
the commercial value of the food, in the mind of a 16
reasonable person; 17
(f) the food is not of the nature or substance represented by 18
the way in which it is packaged, labelled or offered for 19
sale. 20
(2) Without limiting the application of subsection (1) of this 21
section to section 34(2), food is falsely described for the 22
purposes of section 34(2) if it is supplied in response to a 23
purchaser's request for a particular type of food or a food that 24
does not contain a particular ingredient, and the food is not of 25
that type or contains that ingredient. 26
41 Application of provisions outside the State 27
For this chapter, it does not matter that the food concerned 28
was sold or intended for sale outside the State. 29
s 42 33 s 43
Food Bill 2005
Part 3 Defences 1
42 Defence relating to publication of advertisements 2
(1) In proceedings for an offence under this chapter in relation to 3
the publication of an advertisement, it is a defence for a 4
person to prove that-- 5
(a) the person carried on the business of publishing or 6
arranging for the publication of advertisements; and 7
(b) the person published or arranged for the publication of 8
the advertisement concerned in the ordinary course of 9
that business. 10
(2) Subsection (1) does not apply if the person-- 11
(a) should reasonably have known that the publication of 12
the advertisement was an offence; or 13
(b) is the proprietor of a food business or is otherwise 14
engaged in the conduct of a food business for which the 15
advertisement was published; or 16
(c) had previously been informed in writing by the chief 17
executive that publication of an advertisement of that 18
type would constitute an offence. 19
43 Defence relating to food for export 20
(1) In proceedings for an offence under this chapter involving a 21
contravention of a provision of the food standards code in 22
relation to food, it is a defence for a person to prove that-- 23
(a) the food concerned is to be exported to another country; 24
and 25
(b) the food complies with the laws in force at the time of 26
the alleged offence in the place to which the food is to 27
be exported being laws that deal with the same subject 28
matter as the provision of the food standards code 29
concerned. 30
(2) This section does not apply to food that was originally 31
intended for export but was sold in the State. 32
s 44 34 s 44
Food Bill 2005
44 Defence of due diligence 1
(1) In proceedings for an offence under this chapter, it is a 2
defence for a person to prove that the person exercised all due 3
diligence to prevent the commission of the offence by the 4
person or by another person under the person's control. 5
(2) Without limiting the ways in which a person may satisfy the 6
requirements of subsection (1), a person satisfies those 7
requirements if it is proved-- 8
(a) that the commission of the offence was due to-- 9
(i) an act or default of another person; or 10
(ii) reliance on information supplied by another 11
person; and 12
(b) that-- 13
(i) the person carried out all checks of the food 14
concerned as were reasonable in all the 15
circumstances; or 16
(ii) it was reasonable in all the circumstances to rely on 17
checks carried out by the person who supplied the 18
food concerned to the person; and 19
(c) that the person did not import the food into the State 20
from another country; and 21
(d) if the offence involves the sale of food, that-- 22
(i) the person sold the food in the same condition as 23
when the person purchased it; or 24
(ii) the person sold the food in a different condition to 25
that in which the person purchased it, but that the 26
difference did not result in a contravention of this 27
Act. 28
(3) Without limiting the ways in which a person may satisfy the 29
requirements of subsection (1) or (2)(b)(i), a person may 30
satisfy those requirements by proving that the person 31
complied with-- 32
(a) an accredited food safety program; or 33
(b) a scheme (for example, a quality assurance program or 34
an industry code of practice) that was-- 35
s 45 35 s 47
Food Bill 2005
(i) designed to manage food safety hazards and based 1
on Australian national or international standards, 2
codes or guidelines designed for that purpose; and 3
(ii) documented in some way. 4
(4) In subsection (2)(a)-- 5
another person does not include a person who was-- 6
(a) an employee or agent of the defendant; or 7
(b) in the case of a defendant that is a body corporate, a 8
director, employee or agent of the defendant. 9
45 Disapplication of Criminal Code, ss 23 and 24 10
(1) The Criminal Code, section 23, does not apply to an offence 11
under this chapter. 12
(2) The Criminal Code, section 24, does not apply to an offence 13
under part 2.3 14
46 Defence relating to handling food 15
In proceedings for an offence under section 32, 35(1) or 16
36(1),4 it is a defence for a person to prove that the person 17
caused the food to which the offence relates to be destroyed or 18
otherwise disposed of immediately after the food was handled 19
in the way that was likely to make it unsafe or unsuitable. 20
47 Defence relating to sale of unfit equipment or packaging 21
or labelling material 22
In proceedings for an offence under section 38(1) or (2),5 it is 23
a defence for a person to prove that the person reasonably 24
believed that the equipment or material concerned was not 25
intended for use in connection with the handling of food. 26
3 Criminal Code, sections 23 (Intention--motive) and 24 (Mistake of fact)
4 Section 32 (Handling of food in unsafe way), 35 (Handling and sale of unsafe food)
or 36 (Handling and sale of unsuitable food)
5 Section 38 (Sale of unfit equipment or packaging or labelling material)
s 48 36 s 48
Food Bill 2005
Chapter 3 Licences for particular food 1
businesses 2
Part 1 Preliminary 3
48 Meaning of licensable food business 4
(1) Licensable food business means a food business that-- 5
(a) involves the manufacture of food; or 6
(b) is carried on by an entity other than a non-profit 7
organisation and involves the sale of unpackaged food 8
by retail; or 9
10
Examples--
11
· a restaurant or delicatessen
12
· a catering business
13
· a takeaway pizza shop
14
· a motel supplying meals with accommodation
15
· a food business that involves selling hamburgers from a
16
motor vehicle or unpackaged food from a vending machine
(c) is carried on by a non-profit organisation and involves 17
the sale, on at least 12 days each financial year, of meals 18
prepared by the organisation at a particular place. 19
20
Examples--
21
· a restaurant, open daily to the public, operated by a sporting
22
club to raise revenue for the club
23
· a non-profit organisation preparing and selling meals to
24
homeless persons at a homeless persons' hostel
25
· the preparation of meals by Meals on Wheels
(2) However, a licensable food business does not include a food 26
business that consists only of 1 or more of the following-- 27
(a) the production of primary produce under an 28
accreditation granted under the Food Production 29
(Safety) Act 2000, part 5; 30
s 48 37 s 48
Food Bill 2005
(b) the processing or sale of fisheries resources under a 1
buyer licence issued under the Fisheries Regulation 2
1995; 3
(c) the sale of unpackaged snack food; 4
(d) the sale of whole fruit or vegetables; 5
(e) the sale of seeds, spices, dried herbs, tea leaves, coffee 6
beans or ground coffee; 7
(f) the grinding of coffee beans; 8
(g) the sale of drinks (other than fruit or vegetable juice 9
processed at the place of sale) including, for example, 10
tea, coffee, soft drinks and alcoholic drinks; 11
(h) the sale of ice including flavoured ice; 12
(i) the sale of meals by a non-profit organisation if-- 13
(i) the meal consists only of fruit, cereal, toast, or 14
similar food; or 15
(ii) the consumer of the meal helps to prepare it; 16
(j) the sale of meals by a non-profit organisation that-- 17
(i) are pre-prepared by an entity other than the 18
organisation; and 19
(ii) are stored and heated or otherwise prepared by the 20
organisation in accordance with directions of the 21
meal's manufacturer; 22
23
Example--
24
The sale of a frozen meal, at the canteen of an independent
25
school, after the meal is microwaved in accordance with
26
instructions on the meal's packaging.
(k) the sale by a non-profit organisation of a meal prepared 27
as part of an educational or training activity conducted 28
by the organisation involving food preparation, 29
hospitality or catering; 30
(l) the sale of other food prescribed under a regulation. 31
(3) In this section-- 32
processing does not include cooking. 33
s 49 38 s 51
Food Bill 2005
snack food means any of the following food that is not 1
potentially hazardous food-- 2
(a) biscuits or cakes; 3
(b) confectionary, corn chips, potato chips or nuts; 4
(c) dried or glazed fruit; 5
(d) other food prescribed under a regulation. 6
Part 2 Offences about carrying on 7
licensable food businesses 8
49 Licence required to carry on licensable food business 9
A person must not carry on a licensable food business unless 10
the person holds a licence to carry on the business. 11
Maximum penalty--1000 penalty units. 12
50 Where licensee may carry on licensable food business 13
(1) A licensee must not carry on a licensable food business from 14
premises other than premises stated in the licence for carrying 15
on the business. 16
Maximum penalty--500 penalty units. 17
(2) Despite subsection (1), if a licensee's food business under a 18
licence involves off-site catering, the licensee may, to carry on 19
the off-site catering, handle food at premises other than 20
premises stated in the licence for carrying on the business. 21
51 Licensee to comply with conditions of licence 22
(1) A licensee must not contravene a condition of the licence. 23
Maximum penalty--200 penalty units. 24
(2) The penalty under subsection (1) may be imposed whether or 25
not the licence is suspended or cancelled because of the 26
contravention. 27
s 52 39 s 53
Food Bill 2005
Part 3 Applications for, and issue of, 1
licences 2
Division 1 Applications for licence 3
52 Application 4
(1) A person may apply for a licence to carry on a licensable food 5
business. 6
(2) The application must be made to-- 7
(a) for a food business that involves off-site catering--the 8
local government for the area in which the applicant's 9
principal place of business is located or proposed to be 10
located; or 11
(b) for another food business-- 12
(i) if the food business is to be carried on from fixed 13
premises or temporary premises--the local 14
government for the area in which the premises are, 15
or will be, located; or 16
(ii) if the food business is to be carried on from mobile 17
premises--any local government for an area in 18
which the business intends to operate. 19
(3) The application must comply with section 85.6 20
53 What the application must state 21
(1) The application must state all of the following-- 22
(a) if the applicant is a corporation-- 23
(i) the corporation's name; and 24
(ii) the names of its directors; and 25
(iii) the address of its registered office under the 26
Corporations Act; 27
6 Section 85 (General requirements for applications under ch 3)
s 53 40 s 53
Food Bill 2005
(b) if the applicant is an incorporated association-- 1
(i) the incorporated association's name; and 2
(ii) the names of the members of its management 3
committee; and 4
(iii) the address of its registered office under the 5
Associations Incorporation Act 1981; 6
(c) for an applicant other than an entity mentioned in 7
paragraph (a) or (b), the applicant's name and address; 8
(d) for fixed premises, the address of the premises; 9
(e) for mobile premises-- 10
(i) a description of the premises that includes the 11
registration number if the premises are a vehicle 12
that is required to be registered; and 13
(ii) an address, in the area of the local government to 14
which the application is made, at which the 15
premises may be inspected for deciding the 16
application; 17
(f) for temporary premises, the proposed location of the 18
premises; 19
(g) a brief description of the food business proposed to be 20
carried on under the licence; 21
22
Examples--
23
cafe, restaurant, smallgoods manufacturing, catering, takeaway
24
pizza shop
(h) if the food business involves off-site catering--the make 25
and model of each food transport vehicle proposed to be 26
used for the business, including the registration number 27
if the vehicle is required to be registered; 28
(i) if the applicant (or, if the applicant is a corporation or an 29
incorporated association, an executive officer of the 30
corporation or a member of the association's 31
management committee) has a conviction for a relevant 32
offence, other than a spent conviction--details of the 33
offence and the circumstances of its commission; 34
s 54 41 s 56
Food Bill 2005
(j) the details, required in the approved form for the 1
application, to enable the local government to decide 2
whether-- 3
(i) the applicant is a suitable person to hold a licence; 4
and 5
(ii) the premises from which the food business is to be 6
carried on are suitable for carrying on the business; 7
(k) if known by the applicant, the name and contact details 8
of the proposed food safety supervisor for the food 9
business;7 10
(l) the term for which the licence is sought. 11
(2) In this section-- 12
food transport vehicle, for a food business that involves 13
off-site catering, means a vehicle, other than mobile premises, 14
used to transport food for the business. 15
54 When food safety program is to accompany application 16
(1) If, under section 99, the applicant must have an accredited
8
17
food safety program for the food business, the application 18
must be accompanied by the proposed food safety program 19
for the business. 20
(2) If the applicant is not an applicant mentioned in subsection 21
(1), the application may be accompanied by a proposed food 22
safety program for the food business. 23
55 Consideration of application 24
The local government must consider the application and 25
decide to grant, or refuse to grant, the application. 26
56 Criteria for granting application 27
(1) The local government may grant the application only if 28
satisfied of all of the following-- 29
7 See section 86 for requirement for licensee to have a food safety supervisor
8 Section 99 (Who must have accredited food safety program)
s 57 42 s 57
Food Bill 2005
(a) the applicant is a suitable person to hold a licence; 1
(b) the premises from which the food business is to be 2
carried on are suitable for carrying on the business; 3
(c) if the application is accompanied by a proposed food 4
safety program for the food business-- 5
(i) the proposed food safety program complies with 6
section 98;9 and 7
(ii) implementation of the program is reasonably likely 8
to effectively control the food safety hazards of the 9
business. 10
(2) To decide if it is satisfied about the matters mentioned in 11
subsection (1)(c), the local government must obtain and 12
consider the written advice of an auditor about whether or not 13
the auditor considers the food safety program complies with 14
section 98. 15
57 Suitability of person to hold licence 16
In deciding whether the applicant is a suitable person to hold a 17
licence, the local government may have regard to the 18
following matters-- 19
(a) whether the applicant has appropriate skills and 20
knowledge to sell safe and suitable food under the 21
licence; 22
(b) whether the applicant has obtained, or can obtain, the 23
services of other persons with appropriate skills and 24
knowledge to sell safe and suitable food under the 25
licence; 26
(c) whether the applicant (or, if the applicant is a 27
corporation or an incorporated association, an executive 28
officer of the corporation or a member of the 29
association's management committee) has a conviction 30
for a relevant offence, other than a spent conviction; 31
(d) whether the applicant (or, if the applicant is a 32
corporation or an incorporated association, an executive 33
9 Section 98 (Content of food safety program)
s 58 43 s 59
Food Bill 2005
officer of the corporation or a member of the 1
association's management committee)-- 2
(i) held a licence under this Act, the Food Act 1981 or 3
a corresponding law that was suspended or 4
cancelled; or 5
(ii) has been refused a licence under this Act, the Food 6
Act 1981 or a corresponding law; 7
(e) anything else relevant to the applicant's ability to handle 8
or sell safe and suitable food. 9
58 Suitability of premises 10
In deciding whether premises are suitable for carrying on a 11
licensable food business, the local government-- 12
(a) may have regard to whether the premises comply with 13
the food standards code, standard 3.2.3;10 and 14
(b) must obtain and consider the written advice of an 15
authorised person about whether or not the authorised 16
person considers the premises are suitable for carrying 17
on the business. 18
59 Inquiry about application 19
(1) Before deciding the application, the local government-- 20
(a) may make inquiries to decide the suitability of-- 21
(i) the applicant to hold a licence; and 22
(ii) the premises for carrying on a licensable food 23
business; and 24
(b) may, by notice given to the applicant, require the 25
applicant to give the local government within the 26
reasonable period of at least 30 days stated in the notice, 27
further information or a document the local government 28
reasonably requires to decide the application. 29
10 Food Standards Code, standard 3.2.3 (Food premises and equipment)
s 60 44 s 61
Food Bill 2005
(2) The applicant is taken to have withdrawn the application if, 1
within the stated period, the applicant does not comply with a 2
requirement under subsection (1)(b). 3
(3) A notice under subsection (1)(b) must be given to the 4
applicant within 30 days after the local government receives 5
the application. 6
(4) The information or document under subsection (1)(b) must, if 7
the notice requires, be verified by statutory declaration. 8
Division 2 Decisions on applications for 9
licence 10
60 Decision on application 11
(1) If the local government decides to grant the application, the 12
local government must issue the licence to the applicant. 13
(2) If the local government decides to refuse to grant the 14
application, or impose conditions on the licence, the local 15
government must as soon as practicable give the applicant an 16
information notice for the decision. 17
(3) This section does not apply to a decision to issue a provisional 18
licence under section 64. 19
61 Failure to decide application 20
(1) Subject to subsections (2) and (3), if the local government 21
fails to decide the application within 30 days after its receipt, 22
the failure is taken to be a decision by the local government to 23
refuse to grant the application. 24
(2) Subsection (3) applies if-- 25
(a) a person has made an application for a licence; and 26
(b) the local government has, under section 59(1)(b), 27
required the applicant to give the local government 28
further information or a document. 29
(3) The local government is taken to have refused to grant the 30
application if the local government does not decide the 31
application within 30 days after the local government receives 32
s 62 45 s 62
Food Bill 2005
the further information or document verified, if required, by 1
statutory declaration. 2
(4) If the application is refused under this section, the applicant is 3
entitled to be given an information notice by the local 4
government for the decision. 5
(5) This section is subject to sections 62 and 66. 6
7
Note--
8
Under section 66, the period for consideration of the application may be
9
extended to the end of the term of a provisional licence issued for the
10
food business to which the application relates.
62 Further consideration of application 11
(1) This section applies if the local government considers more 12
time is needed to make a decision about the application 13
because of the complexity of the matters that need to be 14
considered in deciding the application. 15
(2) The local government may at any time before the final 16
consideration day give notice to the applicant that-- 17
(a) because of the complexity of the matters that need to be 18
considered in deciding the application, the local 19
government needs more time to decide the application; 20
and 21
22
Example--
23
A local government might need more time to consider a
24
proposed food safety program that accompanies the application.
(b) the period within which the local government must 25
decide the application is extended to a day (the extended 26
day) that is 30 days after the final consideration day. 27
(3) Also, the applicant and local government may at any time 28
before the final consideration day agree in writing on a day 29
(the agreed extended day) by which the application must be 30
decided. 31
(4) The local government is taken to have refused to grant the 32
application if the local government does not decide the 33
application by the latest of the following days-- 34
s 63 46 s 63
Food Bill 2005
(a) if the local government has given a notice to the 1
applicant under subsection (2)--the extended day; 2
(b) if there is an agreement between the applicant and the 3
local government under subsection (3)--the agreed 4
extended day; 5
(c) if both subsections (2) and (3) apply--the later of the 6
extended day and the agreed extended day. 7
(5) This section is subject to section 66. 8
(6) In this section-- 9
final consideration day means the latest of the following 10
days-- 11
(a) the day that is 30 days after receipt of the application; 12
(b) if the local government has, under section 59(1)(b), 13
required the applicant to give the local government 14
further information or a document--the day that is 30 15
days after the local government receives the further 16
information or document verified, if required, by 17
statutory declaration. 18
63 Accreditation of food safety program on grant of 19
application 20
(1) This section applies if-- 21
(a) the application is accompanied by a proposed food 22
safety program for the food business under the licence; 23
and 24
(b) the local government decides to grant the application. 25
(2) The local government-- 26
(a) is taken to have accredited the food safety program 27
when it decides to grant the application; and 28
(b) must-- 29
(i) record on the program that it is accredited; and 30
(ii) give the accredited program to the applicant; and 31
(iii) keep a copy of the accredited program. 32
s 64 47 s 65
Food Bill 2005
1
Note--
2
A food safety program is not taken to be accredited under this
3
section on the issue of a provisional licence.
Division 3 Provisional licences 4
64 Issue of provisional licence 5
Before finally deciding an application for a licence, a local 6
government may issue a provisional licence to the applicant if 7
the local government-- 8
(a) is not fully satisfied about all the matters mentioned in 9
section 56(1);11 and 10
(b) reasonably believes it will grant the application, having 11
regard to the application and any information or 12
documents given to the local government for deciding 13
the application. 14
15
Example--
16
A local government might decide to issue a provisional licence to an
17
applicant if the local government considers--
18
(a) the applicant is temporarily unable to comply with the applicant's
19
proposed food safety program; or
20
(b) the premises from which the food business under the proposed
21
licence is to be carried on needs only minor alterations or repairs
22
to equipment or fittings to make the premises suitable for
23
carrying on the business.
65 When provisional licence ends 24
The provisional licence ends when the earliest of the 25
following happens-- 26
(a) the term of the provisional licence ends; 27
(b) the local government-- 28
(i) grants the application for a licence under section 29
60(1); or 30
11 Section 56 (Criteria for granting application)
s 66 48 s 68
Food Bill 2005
(ii) gives the applicant an information notice under 1
section 60(2) for a decision to refuse to grant the 2
application. 3
66 Extension of period for consideration of application if 4
provisional licence issued 5
(1) This section applies if the local government would, apart from 6
this section, be taken to have refused to grant the application 7
for a licence under section 61 or 6212 during the term of the 8
provisional licence. 9
(2) Despite section 61 or 62, the period for consideration of the 10
application before it is taken to have been refused by the local 11
government is extended to the end of the term of the 12
provisional licence. 13
Part 4 Term and conditions of 14
licences 15
67 Term of licence other than provisional licence 16
A licence other than a provisional licence remains in force, 17
unless sooner cancelled or suspended, for the term of not 18
more than 3 years decided by the local government that issues 19
it. 20
21
Examples of terms--
22
· 1 week for a licence to sell unpackaged food at a music festival
23
· 1 year for a licence for a new restaurant
68 Term of provisional licence 24
(1) A provisional licence remains in force for the term of not 25
more than 3 months decided by the local government that 26
issues it. 27
12 Section 61 (Failure to decide application) or 62 (Further consideration of
application)
s 69 49 s 69
Food Bill 2005
(2) If the initial term of a provisional licence is less than 3 1
months, the local government may, by notice given to the 2
applicant, extend or further extend its term. 3
(3) Subsection (2) does not allow the local government to extend 4
or further extend the term of a provisional licence beyond the 5
end of 3 months after it is issued. 6
69 Conditions of licence 7
(1) A licence is subject to all of the following conditions-- 8
(a) the licensee must comply with this Act; 9
(b) if, under section 99, the licensee must have an 10
accredited food safety program for the food business 11
under the licence-- 12
(i) the licensee must comply with the accredited 13
program; and 14
(ii) the licensee must allow an auditor to have 15
reasonable access to the licensee's premises under 16
the licence to conduct audits under this Act; 17
18
Note--
19
Under section 99, the holder of a provisional licence is not
20
required to have an accredited food safety program.
(c) the licensee must-- 21
(i) if the premises under the licence are fixed or 22
temporary premises--display the licence, or a 23
copy of the licence, in a prominent position at the 24
premises so it is easily visible to persons at the 25
premises; and 26
27
Examples of displaying a licence in a prominent position--
28
· displaying it at the customer counter of a restaurant
29
· displaying it in a publicly accessible reception area of
30
premises where food is manufactured
(ii) if the premises under the licence are mobile 31
premises--display details of the licence prescribed 32
under a regulation in a prominent position on the 33
premises so the details are easily visible to persons 34
at the premises; and 35
s 69 50 s 69
Food Bill 2005
(iii) ensure the licensee's premises under the licence 1
comply with the food standards code, standard 2
3.2.3;13 3
(d) the licensee must allow an authorised person to have 4
reasonable access to the licensee's premises under the 5
licence during normal business hours for the food 6
business under the licence; 7
(e) other reasonable conditions the local government 8
considers appropriate for the food business under the 9
licence and that are stated in the licence or of which the 10
licensee is notified under subsection (3). 11
(2) A condition may be imposed under subsection (1)(e)-- 12
(a) when the licence is issued, renewed, restored or 13
amended; or 14
(b) at another time if the local government considers it 15
necessary to impose the condition to ensure food for 16
sale is safe and suitable for human consumption. 17
(3) If the local government decides to impose conditions on a 18
licence, other than a provisional licence, under subsection 19
(2)(b), the local government must as soon as practicable give 20
the licensee an information notice for the decision. 21
(4) Subsection (1)(c)(iii) applies to a provisional licence only to 22
the extent the premises under the licence can reasonably 23
comply with the food standards code, standard 3.2.3, having 24
regard to the basis on which the provisional licence is issued. 25
13 Food Standards Code, standard 3.2.3 (Food premises and equipment)
s 70 51 s 72
Food Bill 2005
Part 5 Renewal, restoration or 1
amendment of licences 2
Division 1 Preliminary 3
70 Application of pt 5 4
This part does not apply to a provisional licence. 5
71 Notice of imminent expiry of licence 6
The local government that issued a licence must give the 7
licensee notice of its imminent expiry at least 60 days before 8
the expiry. 9
Division 2 Renewal, restoration and 10
amendment 11
Subdivision 1 Applications 12
72 Application for renewal 13
(1) A licensee may apply to the local government that issued a 14
licence for renewal of the licence. 15
(2) The application must-- 16
(a) be made within 60 days before the licence ends; and 17
(b) comply with section 85.14 18
(3) The local government must consider the application and 19
decide to renew, or refuse to renew, the licence. 20
(4) In deciding the application, the local government may have 21
regard to-- 22
14 Section 85 (General requirements for applications under ch 3)
s 73 52 s 73
Food Bill 2005
(a) the matters to which the local government may have 1
regard in deciding whether an applicant for a licence is a 2
suitable person to hold the licence and whether the 3
premises under a licence are suitable for carrying on a 4
licensable food business;15 and 5
(b) the results of audits of an accredited food safety 6
program for the food business under the licence; and 7
(c) the results of inspections to monitor compliance with 8
this Act during the current term of the licence. 9
(5) If the local government decides to refuse to renew the licence, 10
or impose conditions on the licence, the local government 11
must as soon as practicable give the licensee an information 12
notice for the decision. 13
(6) A licence may be renewed by issuing another licence to 14
replace it. 15
73 Application for restoration 16
(1) A person who was a licensee may apply to the local 17
government that issued a licence for restoration of the licence. 18
(2) The application must-- 19
(a) be made within 30 days after the licence ends; and 20
(b) comply with section 85. 21
(3) The local government must consider the application and 22
decide to restore, or refuse to restore, the licence. 23
(4) In deciding the application, the local government may have 24
regard to-- 25
(a) the matters to which the local government may have 26
regard in deciding whether an applicant for a licence is a 27
suitable person to hold the licence and whether premises 28
under a licence are suitable for carrying on a licensable 29
food business; and 30
15 See sections 57 (Suitability of person to hold licence) and 58 (Suitability of
premises).
s 74 53 s 74
Food Bill 2005
(b) the results of audits of an accredited food safety 1
program for the food business under the licence; and 2
(c) the results of inspections to monitor compliance with 3
this Act during the last term of the licence. 4
(5) If the local government decides to refuse to restore the 5
licence, or impose conditions on the licence, the local 6
government must as soon as practicable give the person an 7
information notice for the decision. 8
(6) An expired licence may be restored by issuing another licence 9
to replace it. 10
(7) Subsection (1) does not apply to a licence cancelled under 11
section 82. 12
74 Application for amendment 13
(1) A licensee may apply to the local government that issued a 14
licence for an amendment of the licence. 15
(2) The application must-- 16
(a) be accompanied by the licence; and 17
(b) comply with section 85. 18
(3) The local government must consider the application and 19
decide to amend, or refuse to amend, the licence. 20
(4) Without limiting subsection (1), the local government may 21
amend a licence by changing the location of the premises 22
from which the licensee proposes to carry on a licensable food 23
business. 24
(5) If the amendment relates to the premises covered by the 25
licence, the local government may amend the licence only if 26
satisfied on reasonable grounds that the premises are suitable 27
for carrying on a licensable food business. 28
(6) If the local government decides to refuse to amend the licence, 29
the local government must as soon as practicable give the 30
licensee-- 31
(a) the licence; and 32
(b) an information notice for the decision. 33
s 75 54 s 76
Food Bill 2005
(7) If the local government decides to impose conditions on the 1
licence, the local government must as soon as practicable give 2
the licensee an information notice for the decision. 3
(8) A licence may be amended by-- 4
(a) endorsing the existing licence with details of the 5
amendment; or 6
(b) cancelling the existing licence and issuing another 7
licence containing the amendment. 8
Subdivision 2 Inquiries about applications and 9
continuation of licences 10
75 Inquiry about application 11
(1) Before deciding an application under subdivision 1, the local 12
government may, by notice given to the applicant, require the 13
applicant to give the local government within the reasonable 14
period of at least 30 days stated in the notice, further 15
information or a document the local government reasonably 16
requires to decide the application. 17
(2) The applicant is taken to have withdrawn the application if, 18
within the stated period, the applicant does not comply with 19
the requirement. 20
(3) The information or document under subsection (1) must, if the 21
notice requires, be verified by statutory declaration. 22
76 Licence continues pending decision about renewal or 23
restoration 24
(1) If a licensee applies for renewal of a licence under section 72, 25
the licence is taken to continue in force from the day it would, 26
apart from this section, have ended until the application is 27
decided under section 72 or taken to have been withdrawn 28
under section 75(2). 29
(2) If a person applies for restoration of a licence under section 30
73, the licence is taken to continue in force from the day it 31
ended until the application is decided under section 73 or 32
taken to have been withdrawn under section 75(2). 33
s 77 55 s 78
Food Bill 2005
(3) Despite subsections (1) and (2), if a local government decides 1
to refuse to renew or restore the licence under section 72(3) or 2
73(3), the licence continues in force until the information 3
notice for the decision is given to the applicant. 4
(4) Subsections (1) and (2) do not apply if the licence is earlier 5
suspended or cancelled. 6
77 Failure to decide application 7
(1) Subject to subsections (2) and (3), if the local government 8
fails to decide an application under subdivision 1 within 30 9
days after its receipt, the failure is taken to be a decision by 10
the local government to refuse to renew, restore or amend the 11
licence. 12
(2) Subsection (3) applies if-- 13
(a) a person has made an application under subdivision 1; 14
and 15
(b) the local government has, under section 75(1), required 16
the person to give the local government further 17
information or a document. 18
(3) The local government is taken to have refused to renew, 19
restore or amend the licence if the local government does not 20
decide the application within 30 days after the local 21
government receives the further information or document 22
verified, if required, by statutory declaration. 23
(4) If the application is refused under this section, the applicant is 24
entitled to be given an information notice by the local 25
government for the decision. 26
Part 6 Suspension or cancellation of 27
licences 28
78 Grounds for suspension or cancellation 29
(1) Each of the following is a ground for suspending or cancelling 30
a licence-- 31
s 79 56 s 79
Food Bill 2005
(a) the licensee is not, or is no longer, a suitable person to 1
hold the licence; 2
(b) if, under section 99, the licensee must have an 3
accredited food safety program--the licensee has not 4
complied with the program and the noncompliance is 5
likely to result in a significant risk to public health or 6
safety; 7
(c) the licensee has contravened a condition of the licence, 8
other than a condition mentioned in section 69(1)(b); 9
(d) the licence was issued because of a materially false or 10
misleading representation or declaration. 11
(2) For forming a belief that the ground mentioned in subsection 12
(1)(a) exists, a local government may have regard to the 13
matters to which the local government may have regard in 14
deciding whether a proposed licensee is a suitable person to 15
hold a licence.16 16
79 Show cause notice 17
(1) This section applies if-- 18
(a) the local government that issued a licence believes a 19
ground exists to suspend or cancel the licence; and 20
(b) either the licensee-- 21
(i) has not been given, and it is not intended to give 22
the licensee, an improvement notice about a matter 23
to which the ground relates; or 24
(ii) has been given an improvement notice about a 25
matter to which the ground relates and the licensee 26
has failed, without a reasonable excuse, to comply 27
with the notice. 28
29
Note--
30
Under section 209, an authorised person may give a person an
31
improvement notice requiring the person to remedy, or have remedied, a
32
contravention of a provision of this Act.
16 See section 57 (Suitability of person to hold licence)
s 80 57 s 81
Food Bill 2005
(2) The local government must give the licensee a notice under 1
this section (a show cause notice). 2
(3) The show cause notice must state the following-- 3
(a) the action the local government proposes taking under 4
this part (the proposed action); 5
(b) the grounds for the proposed action; 6
(c) an outline of the facts and circumstances forming the 7
basis for the grounds; 8
(d) if the proposed action is suspension of the licence--the 9
proposed suspension period; 10
(e) that the licensee may, within a stated period (the show 11
cause period), make written representations to the local 12
government to show why the proposed action should not 13
be taken. 14
(4) The show cause period must end at least 21 days after the 15
licensee is given the show cause notice. 16
80 Representations about show cause notice 17
(1) The licensee may make written representations about the 18
show cause notice to the local government in the show cause 19
period. 20
(2) The local government must consider all representations (the 21
accepted representations) made under subsection (1). 22
81 Ending show cause process without further action 23
If, after considering the accepted representations for the show 24
cause notice, the local government no longer believes a 25
ground exists to suspend or cancel the licence, the local 26
government-- 27
(a) must not take any further action about the show cause 28
notice; and 29
(b) must give the licensee a notice that no further action is 30
to be taken about the show cause notice. 31
s 82 58 s 83
Food Bill 2005
82 Suspension or cancellation 1
(1) This section applies if-- 2
(a) there are no accepted representations for the show cause 3
notice; or 4
(b) after considering the accepted representations for the 5
show cause notice, the local government-- 6
(i) still believes a ground exists to suspend or cancel 7
the licence; and 8
(ii) believes suspension or cancellation of the licence 9
is warranted. 10
(2) The local government may-- 11
(a) if the proposed action was to suspend the 12
licence--suspend the licence for not longer than the 13
proposed suspension period; or 14
(b) if the proposed action was to cancel the licence--cancel 15
the licence or suspend it for a period. 16
(3) If the local government decides to take action under 17
subsection (2), the local government must as soon as 18
practicable give the licensee an information notice for the 19
decision. 20
(4) The decision takes effect on the later of the following-- 21
(a) the day the information notice is given to the licensee; 22
(b) the day stated in the information notice for that purpose. 23
83 Immediate suspension of licence 24
(1) The local government that issued a licence may suspend the 25
licence immediately if the local government believes-- 26
(a) a ground exists to suspend or cancel the licence; and 27
(b) it is necessary to suspend the licence immediately 28
because there is an immediate and serious risk to public 29
health or safety. 30
(2) The suspension-- 31
(a) can be effected only by the local government giving an 32
information notice to the licensee about the decision to 33
s 84 59 s 84
Food Bill 2005
suspend the licence, together with a show cause notice; 1
and 2
(b) operates immediately the notices are given to the 3
licensee; and 4
(c) continues to operate until the earliest of the following 5
happens-- 6
(i) the local government cancels the remaining period 7
of the suspension; 8
(ii) the show cause notice is finally dealt with; 9
(iii) 30 days have passed since the notices were given to 10
the licensee. 11
(3) Subsection (4) applies if-- 12
(a) a suspension under this section stops because-- 13
(i) the local government cancels the remaining period 14
of the suspension; or 15
(ii) the show cause notice is finally dealt with by a 16
decision being made not to cancel or suspend the 17
licence; or 18
(iii) 30 days have passed since the notices mentioned in 19
subsection (2)(a) were given to the licensee; and 20
(b) the licensee has returned the licence to the local 21
government under section 84. 22
(4) The local government must, as soon as practicable, give the 23
licence to the licensee. 24
84 Return of cancelled or suspended licence to local 25
government 26
(1) This section applies if the local government has cancelled or 27
suspended a licence and given an information notice for the 28
decision to the licensee. 29
(2) The licensee must return the licence to the local government 30
within 7 days after receiving the information notice, unless 31
the licensee has a reasonable excuse. 32
Maximum penalty--20 penalty units. 33
s 85 60 s 86
Food Bill 2005
Part 7 Other provisions about 1
licences and licensees 2
Division 1 Requirements for applications 3
85 General requirements for applications under ch 3 4
(1) This section applies to an application for-- 5
(a) a licence under section 52; or 6
(b) the renewal of a licence under section 72; or 7
(c) the restoration of a licence under section 73; or 8
(d) an amendment of a licence under section 74. 9
(2) The application must-- 10
(a) be in the approved form; and 11
(b) be signed by or for the applicant; and 12
(c) be accompanied by the fee, if any, for the application. 13
(3) The approved form for the application must provide for the 14
inclusion of the applicant's contact details. 15
Division 2 Food safety supervisors 16
86 Licensee to have food safety supervisor 17
(1) A licensee must, within 30 days after the licence is issued 18
under section 60(1), have a food safety supervisor for the food 19
business under the licence. 20
Maximum penalty--50 penalty units. 21
(2) The licensee must at all times continue to have a food safety 22
supervisor for the food business under the licence. 23
Maximum penalty--50 penalty units. 24
(3) The licensee-- 25
(a) may be the food safety supervisor for the food business; 26
and 27
s 87 61 s 88
Food Bill 2005
(b) may have more than 1 food safety supervisor for the 1
food business. 2
87 Availability of food safety supervisor 3
(1) The licensee must ensure a food safety supervisor for the food 4
business under the licence is reasonably available to be 5
contacted by the local government that issued the licence 6
while the food business is being carried on. 7
Maximum penalty--50 penalty units. 8
(2) The licensee must ensure a food safety supervisor for the food 9
business under the licence is reasonably available to be 10
contacted by persons who handle food in the food business 11
while the food business is being carried on. 12
Maximum penalty--50 penalty units. 13
88 Licensee to advise local government about food safety 14
supervisor 15
(1) A licensee must, within 30 days after the licence is issued 16
under section 60(1), advise the local government that issued 17
the licence of the name and contact details of each food safety 18
supervisor for the food business under the licence. 19
Maximum penalty--50 penalty units. 20
(2) Subject to subsection (1), the licensee must, within 14 days 21
after a person becomes a food safety supervisor for the food 22
business, advise the local government of the person's name 23
and contact details. 24
Maximum penalty--50 penalty units. 25
(3) The licensee must, within 14 days after a person stops being a 26
food safety supervisor for the food business, advise the local 27
government of the fact. 28
Maximum penalty--50 penalty units. 29
(4) The licensee must, within 14 days after the contact details of a 30
food safety supervisor for the food business changes, advise 31
the local government of the change. 32
Maximum penalty--50 penalty units. 33
s 89 62 s 91
Food Bill 2005
Division 3 Carrying on licensable food 1
business from mobile premises 2
89 Obligations of licensee while in second local 3
government's area 4
(1) This section applies if a licensee carries on a licensable food 5
business from mobile premises to which the licence relates in 6
a second local government's area. 7
(2) For the period the licensee carries on the food business from 8
the mobile premises in the second local government's area, 9
the licensee has the obligations under the licensee's licence. 10
90 Action that may be taken by second local government 11
(1) This section applies for the period the licensee carries on the 12
food business from mobile premises in a second local 13
government's area. 14
(2) The second local government has the same powers as the first 15
local government would have had if the food business were 16
being carried on in the first local government's area. 17
(3) However, the second local government may not cancel, 18
suspend, impose conditions on, or take any other similar 19
action in relation to the licence. 20
91 Notification to first local government 21
(1) This section applies if-- 22
(a) a licensee has carried on a licensable food business from 23
mobile premises in a second local government's area; 24
and 25
(b) the second local government considers that the licensee 26
has done or omitted to do something that, if done or 27
omitted to be done in the first local government's area, 28
would be a contravention of the conditions of the 29
licence. 30
(2) The second local government may advise the first local 31
government of the thing done or omitted to be done. 32
s 92 63 s 94
Food Bill 2005
92 Action that may be taken by first local government 1
(1) This section applies if the second local government has 2
advised the first local government of a thing done or omitted 3
to be done by the licensee while in the second local 4
government's area. 5
(2) The first local government may take action in relation to the 6
thing done or omitted to be done by the licensee as if the thing 7
had been done or omitted to be done in the first local 8
government's area. 9
Division 4 General provisions 10
93 Licence issued to more than 1 person 11
If a licence is issued jointly to more than 1 person, a reference 12
in this Act to the licensee is a reference to each of the persons. 13
94 Form of licence 14
A licence must-- 15
(a) be in the approved form; and 16
(b) state the following particulars-- 17
(i) the licensee's name and address; 18
(ii) for fixed premises, the address of the premises; 19
(iii) for mobile premises, a description of the premises 20
that includes the registration number if the 21
premises are a vehicle that is required to be 22
registered; 23
(iv) for temporary premises, the proposed location of 24
the premises; 25
(v) the term of the licence, including the day it 26
becomes effective and the day it ends; 27
(vi) a description of the food business under the 28
licence; 29
s 95 64 s 97
Food Bill 2005
(vii) the licence number; 1
(viii) the licence conditions. 2
95 Surrender of licence 3
(1) A licensee may surrender the licence by notice given to the 4
local government that issued it. 5
(2) The licence must accompany the notice. 6
(3) The surrender takes effect on the later of the following-- 7
(a) the day the notice is given to the local government; 8
(b) the day stated in the notice for that purpose. 9
96 Application for replacement of licence 10
(1) A licensee may apply for replacement of the licence if the 11
licence has been damaged, destroyed, lost or stolen. 12
(2) The application must-- 13
(a) be made to the local government that issued the licence; 14
and 15
(b) include information about the circumstances in which 16
the licence was damaged, destroyed, lost or stolen; and 17
(c) be accompanied by the fee, if any, for the application. 18
97 Decision about application for replacement of licence 19
(1) The local government must consider the application and 20
decide to grant, or refuse to grant, the application. 21
(2) The local government must grant the application if the local 22
government is satisfied the licence has been destroyed, lost or 23
stolen, or damaged in a way to require its replacement. 24
(3) If the local government decides to grant the application, the 25
local government must, as soon as practicable, issue another 26
licence to the applicant to replace the damaged, destroyed, 27
lost or stolen licence. 28
(4) If a licence is issued under subsection (3) to replace the 29
damaged, destroyed, lost or stolen licence, the licence is taken 30
s 98 65 s 98
Food Bill 2005
not to have been subject to a condition mentioned in section 1
69(1)(c)(i) for the period-- 2
(a) starting on the day the licensee applied for replacement 3
of the licence; and 4
(b) ending when the replacement licence is issued to the 5
licensee. 6
(5) If the local government decides to refuse to grant the 7
application, the local government must as soon as practicable 8
give the applicant an information notice for the decision. 9
Chapter 4 Food safety programs 10
Part 1 Preliminary 11
98 Content of food safety program 12
A food safety program for a food business must-- 13
(a) systematically identify food safety hazards that are 14
reasonably likely to occur in food handling operations of 15
the food business; and 16
(b) identify where, in a food handling operation of the food 17
business, each hazard identified under paragraph (a) can 18
be controlled and the means of control; and 19
(c) provide for the systematic monitoring of the means of 20
control; and 21
(d) provide for appropriate corrective action to be taken 22
when a hazard identified under paragraph (a) is not 23
under control; and 24
(e) provide for regular review of the program to ensure it is 25
appropriate for the food business; and 26
(f) provide for the keeping of appropriate records for the 27
food business, including records about action taken to 28
s 99 66 s 99
Food Bill 2005
ensure the business is carried on in compliance with the 1
program; and 2
(g) contain other information, relating to the control of food 3
safety hazards, prescribed under a regulation. 4
99 Who must have accredited food safety program 5
(1) A licensee, other than the holder of a provisional licence, must 6
have an accredited food safety program for the food business 7
under the licence if-- 8
(a) the food business involves off-site catering; or 9
(b) the primary activity of the food business is on-site 10
catering at the premises stated in the licence; or 11
(c) the primary activity of the food business is on-site 12
catering at part of the premises stated in the licence; or 13
14
Example of part of premises stated in a licence--
15
a function room used for on-site catering and situated on the
16
premises of a large hotel
(d) the food business is carried on as part of the operations 17
of a private hospital under the Private Health Facilities 18
Act 1999; or 19
(e) the food business-- 20
(i) involves the handling of potentially hazardous food 21
or other food that is reasonably likely to pose a risk 22
to public health or safety; and 23
(ii) is a food business prescribed under a regulation. 24
Maximum penalty--1000 penalty units. 25
(2) However, for subsection (1)(c), a regulation may exempt a 26
licensee from subsection (1) if the scope of the on-site 27
catering is not more than the limits prescribed in the 28
regulation, including, for example, limits about-- 29
(a) the size of the area where the on-site catering is carried 30
out; or 31
(b) the seating capacity of the area; or 32
s 100 67 s 102
Food Bill 2005
(c) the number of persons for whom on-site catering is 1
provided; or 2
(d) the frequency of provision of on-site catering; or 3
(e) the proportion of the licensee's revenue derived from 4
on-site catering. 5
100 Other persons may have accredited food safety program 6
A person who is not required under section 99 to have an 7
accredited food safety program may apply under part 2 for 8
accreditation of a food safety program for the person's food 9
business. 10
101 Particular persons taken to have applied for accreditation 11
of food safety program 12
(1) This section applies to a person if, under chapter 3, part 3 the 13
person-- 14
(a) applies for a licence; and 15
(b) the application is accompanied by a proposed food 16
safety program for the food business under the licence. 17
(2) The person-- 18
(a) is taken to have applied for accreditation of the proposed 19
food safety program when the person applies for the 20
licence; and 21
(b) need not apply for accreditation of the proposed 22
program under section 102. 23
Part 2 Applications for accreditation 24
of food safety programs 25
102 Application for accreditation 26
(1) A person may apply for accreditation of a food safety program 27
for a food business carried on by the person. 28
s 103 68 s 105
Food Bill 2005
(2) The application must be made to-- 1
(a) for an applicant who holds a licence for the food 2
business--the local government that issued the licence; 3
or 4
(b) otherwise--the local government to which the applicant 5
would apply for a licence for the food business under 6
section 52(2). 7
(3) The application must-- 8
(a) be in the approved form; and 9
(b) be accompanied by-- 10
(i) the food safety program; and 11
(ii) the fee, if any, for the application. 12
103 Consideration of application 13
(1) The local government must consider the application and 14
decide to accredit, or refuse to accredit, the food safety 15
program. 16
(2) To decide the application, the local government must obtain 17
and consider the written advice of an auditor about whether or 18
not the auditor considers the food safety program complies 19
with the criteria in section 104. 20
104 Criteria for accrediting food safety program 21
The local government may accredit the food safety program 22
only if satisfied-- 23
(a) the program complies with section 98; and 24
(b) implementation of the program is reasonably likely to 25
effectively control the food safety hazards of the food 26
business to which the program relates. 27
105 Inquiry about application 28
(1) Before deciding the application, the local government may, by 29
notice given to the applicant, require the applicant to give the 30
local government within the reasonable period of at least 30 31
s 106 69 s 107
Food Bill 2005
days stated in the notice, further information or a document 1
the local government reasonably requires to decide the 2
application. 3
(2) The applicant is taken to have withdrawn the application if, 4
within the stated period, the applicant does not comply with 5
the requirement. 6
(3) The information or document under subsection (1) must, if the 7
notice requires, be verified by statutory declaration. 8
106 Decision on application 9
(1) If the local government decides to accredit the food safety 10
program, the local government must-- 11
(a) record on the program that it is accredited; and 12
(b) give the accredited program to the applicant; and 13
(c) keep a copy of the accredited program. 14
(2) If the local government decides to refuse to accredit the food 15
safety program, the local government must as soon as 16
practicable give the applicant an information notice for the 17
decision. 18
107 Failure to decide application 19
(1) Subject to subsections (2) and (3), if the local government 20
fails to decide the application within 30 days after its receipt, 21
the failure is taken to be a decision by the local government to 22
refuse to accredit the food safety program. 23
(2) Subsection (3) applies if-- 24
(a) a person has made an application for accreditation of a 25
food safety program; and 26
(b) the local government has, under section 105(1), required 27
the applicant to give the local government further 28
information or a document. 29
(3) The local government is taken to have refused to accredit the 30
food safety program if the local government does not decide 31
the application within 30 days after the local government 32
receives the further information or document. 33
s 108 70 s 108
Food Bill 2005
(4) If the application is refused under this section, the applicant is 1
entitled to be given an information notice by the local 2
government for the decision. 3
108 Further consideration of application 4
(1) This section applies if the local government considers more 5
time is needed to make a decision about the application 6
because of the complexity of the matters that need to be 7
considered in deciding the application. 8
(2) The local government may at any time before the final 9
consideration day give notice to the applicant that-- 10
(a) because of the complexity of the matters that need to be 11
considered in deciding the application, the local 12
government needs more time to decide the application; 13
and 14
(b) the period within which the local government must 15
decide the application is extended to a day (the extended 16
day) that is 30 days after the final consideration day. 17
(3) Also, the applicant and local government may at any time 18
before the final consideration day agree in writing on a day 19
(the agreed extended day) by which the application must be 20
decided. 21
(4) The local government is taken to have refused to accredit the 22
food safety program if the local government does not decide 23
the application by the latest of the following days-- 24
(a) if the local government has given a notice to the 25
applicant under subsection (2)--the extended day; 26
(b) if there is an agreement between the applicant and the 27
local government under subsection (3)--the agreed 28
extended day; 29
(c) if both subsections (2) and (3) apply--the later of the 30
extended day and the agreed extended day. 31
(5) In this section-- 32
final consideration day means the latest of the following 33
days-- 34
(a) the day that is 30 days after receipt of the application; 35
s 109 71 s 109
Food Bill 2005
(b) if the local government has, under section 105(1), 1
required the applicant to give the local government 2
further information or a document--the day that is 30 3
days after the local government receives the further 4
information or document. 5
Part 3 Matters about compliance 6
audits for accredited food 7
safety programs 8
109 Frequency of compliance audits 9
(1) This section applies if a local government accredits a food 10
safety program under section 63(2)(a)17 or part 2. 11
(2) The local government must, as soon as practicable after 12
accrediting the food safety program-- 13
(a) decide how often the holder of the program must have 14
compliance audits of the program conducted under this 15
Act; and 16
(b) give the holder an information notice for the decision. 17
(3) To decide the frequency of compliance audits for subsection 18
(2)(a), the local government must have regard to-- 19
(a) the nature of the food handled in the food business to 20
which the program relates; and 21
(b) the nature and extent of food handling carried on in the 22
food business. 23
(4) This section is subject to section 157.18 24
17 Section 63 (Accreditation of food safety program on grant of application)
18 Section 157 (First compliance audit of accredited food safety program)
s 110 72 s 111
Food Bill 2005
110 Changing frequency of compliance audits 1
(1) A local government may change the frequency of compliance 2
audits for a food safety program accredited by the local 3
government if, having regard to the matters mentioned in 4
section 109(3), the local government considers it necessary to 5
make the change in the interests of public health or safety. 6
(2) In deciding whether to change the frequency of compliance 7
audits for the food safety program, the local government also 8
may have regard to the results of a compliance or 9
nonconformance audit of the program. 10
(3) If the local government decides to change the frequency of 11
compliance audits for the food safety program by increasing 12
the frequency of the audits, the local government must as soon 13
as practicable give the holder of the program an information 14
notice for the decision. 15
(4) If the local government decides to change the frequency of 16
compliance audits for the food safety program by decreasing 17
the frequency of the audits, the local government must as soon 18
as practicable give the holder of the program notice of the 19
change. 20
111 Limitation on frequency of compliance audits 21
The frequency of compliance audits for a food safety program 22
decided by a local government under this part must not be 23
more than the frequency prescribed under a regulation for the 24
food business to which the program relates. 25
s 112 73 s 112
Food Bill 2005
Part 4 Amendment of accredited food 1
safety programs 2
Division 1 Amendment by holder of accredited 3
food safety program 4
112 Application for approval of amendment 5
(1) This section applies to the holder of an accredited food safety 6
program if-- 7
(a) the holder proposes to change the way food is handled 8
in the carrying on of the food business to which the 9
program relates; and 10
(b) because of the proposed change-- 11
(i) the program will no longer identify the food safety 12
hazards of the food business; and 13
(ii) implementation of the program will no longer 14
effectively control the food safety hazards. 15
(2) Before changing the way food is handled in the carrying on of 16
the food business, the holder must-- 17
(a) amend the food safety program to ensure-- 18
(i) the program identifies the food safety hazards of 19
the food business as proposed to be changed; and 20
(ii) implementation of the program will effectively 21
control the food safety hazards of the food business 22
as proposed to be changed; and 23
(b) apply under this section for approval of the amendment. 24
(3) The application must-- 25
(a) be made to the local government that accredited the food 26
safety program; and 27
(b) be accompanied by-- 28
(i) the amended program; and 29
(ii) the fee, if any, for the application. 30
s 113 74 s 113
Food Bill 2005
(4) The local government must consider the application and 1
decide to approve, or refuse to approve, the amendment. 2
(5) The local government may approve the amendment only if 3
satisfied-- 4
(a) the amended program complies with section 98;19 and 5
(b) implementation of the amended program is reasonably 6
likely to effectively control the food safety hazards of 7
the food business to which the program relates. 8
(6) If the local government decides to refuse to approve the 9
amendment, the local government must as soon as practicable 10
give the applicant an information notice for the decision. 11
(7) If the local government decides to approve the amendment, 12
the local government must-- 13
(a) record on the food safety program that the amendment is 14
approved; and 15
(b) give the program to the applicant; and 16
(c) keep a copy of the program. 17
(8) For this Act, the amended food safety program is taken to 18
comply with section 98 from the day the holder of the 19
program amends it until the local government decides the 20
application. 21
113 Inquiry about application 22
(1) Before deciding the application, the local government may, by 23
notice given to the applicant, require the applicant to give the 24
local government within the reasonable period of at least 30 25
days stated in the notice, further information or a document 26
the local government reasonably requires to decide the 27
application. 28
(2) The applicant is taken to have withdrawn the application if, 29
within the stated period, the applicant does not comply with 30
the requirement. 31
19 Section 98 (Content of food safety program)
s 114 75 s 114
Food Bill 2005
(3) The information or document under subsection (1) must, if the 1
notice requires, be verified by statutory declaration. 2
Division 2 Amendment of accredited food 3
safety program--local 4
government's initiative 5
114 Local government may direct holder to amend accredited 6
food safety program 7
(1) A local government may direct the holder of a food safety 8
program accredited by the local government to amend the 9
program if the local government considers it necessary or 10
desirable to make the amendment, having regard to the 11
matters about which it must be satisfied under section 104.20 12
(2) A direction under subsection (1) must be by notice given to 13
the holder of the program. 14
(3) The notice must-- 15
(a) include information about the nature of the amendment 16
required to be made by the holder; and 17
(b) state the day by which the holder must make the 18
amendment; and 19
(c) be accompanied by an information notice for the 20
decision to give the direction. 21
(4) The stated day must be at least 30 days after the notice is 22
given to the holder. 23
(5) The holder must comply with the direction, unless the holder 24
has a reasonable excuse. 25
Maximum penalty--200 penalty units. 26
20 Section 104 (Criteria for accrediting food safety program)
s 115 76 s 117
Food Bill 2005
115 Amending accredited food safety program 1
(1) As soon as practicable after amending a food safety program 2
to comply with a direction under section 114, the holder of the 3
program must give to the local government-- 4
(a) the amended program; and 5
(b) the fee, if any, for the local government's consideration 6
of the amended program. 7
(2) If the local government is satisfied the amendment complies 8
with the direction, the local government must-- 9
(a) record on the food safety program that the amendment 10
complies with the direction; and 11
(b) give the program to the applicant; and 12
(c) keep a copy of the program. 13
Part 5 Cancellation of accreditation, 14
and surrender, of particular 15
food safety programs 16
116 Application of pt 5 17
This part applies only to an accredited food safety program 18
held by a person who is not required under section 99 to have 19
the accredited program for the person's food business. 20
117 Grounds for cancellation 21
(1) Each of the following is a ground for cancelling the 22
accreditation of the food safety program-- 23
(a) the holder of the program has not complied with the 24
program and the noncompliance is likely to result in a 25
significant risk to public health or safety; 26
(b) the holder has not had compliance audits of the program 27
conducted as required, under part 3, by the local 28
government that accredited the program; 29
s 118 77 s 119
Food Bill 2005
(c) the holder has contravened a relevant provision; 1
(d) the program was accredited because of a materially false 2
or misleading representation or declaration. 3
(2) In this section-- 4
relevant provision means section 112(2), 114(5), 115(1), 5
157(1), 163(1), 267(2) or 268(2) of this Act.21 6
118 Show cause notice 7
(1) If the local government that accredited the food safety 8
program believes a ground exists to cancel its accreditation, 9
the local government must give the holder of the program a 10
notice under this section (a show cause notice). 11
(2) The show cause notice must state the following-- 12
(a) the action the local government proposes taking under 13
this part (the proposed action); 14
(b) the grounds for the proposed action; 15
(c) an outline of the facts and circumstances forming the 16
basis for the grounds; 17
(d) that the holder may, within a stated period (the show 18
cause period), make written representations to the local 19
government to show why the proposed action should not 20
be taken. 21
(3) The show cause period must end at least 21 days after the 22
holder is given the show cause notice. 23
119 Representations about show cause notice 24
(1) The holder may make written representations about the show 25
cause notice to the local government in the show cause period. 26
21 Section 112 (Application for approval of amendment), 114 (Local government may
direct holder to amend accredited food safety program), 115 (Amending accredited
food safety program), 157 (First compliance audit of accredited food safety
program), 163 (Obstructing auditor), 267 (False or misleading statements) or 268
(False or misleading documents)
s 120 78 s 121
Food Bill 2005
(2) The local government must consider all representations (the 1
accepted representations) made under subsection (1). 2
120 Ending show cause process without further action 3
If, after considering the accepted representations for the show 4
cause notice, the local government no longer believes a 5
ground exists to cancel the accreditation, the local 6
government-- 7
(a) must not take any further action about the show cause 8
notice; and 9
(b) must give the holder a notice that no further action is to 10
be taken about the show cause notice. 11
121 Cancellation 12
(1) This section applies if-- 13
(a) there are no accepted representations for the show cause 14
notice; or 15
(b) after considering the accepted representations for the 16
show cause notice, the local government-- 17
(i) still believes a ground exists to cancel the 18
accreditation; and 19
(ii) believes cancellation of the accreditation is 20
warranted. 21
(2) The local government may cancel the accreditation. 22
(3) If the local government decides to take action under 23
subsection (2), the local government must as soon as 24
practicable give the holder an information notice for the 25
decision. 26
(4) The decision takes effect on the later of the following-- 27
(a) the day the information notice is given to the holder; 28
(b) the day stated in the information notice for that purpose. 29
s 122 79 s 125
Food Bill 2005
122 Surrender of accredited food safety program 1
(1) The holder of an accredited food safety program to which this 2
part applies may surrender the program by notice given to the 3
local government that accredited it. 4
(2) The accredited food safety program must accompany the 5
notice. 6
(3) The surrender takes effect on the later of the following-- 7
(a) the day the notice is given to the local government; 8
(b) the day stated in the notice for that purpose. 9
Part 6 Other provisions about 10
accredited food safety 11
programs 12
123 Obligation to comply with accredited food safety program 13
A licensee who, under section 99, must have an accredited 14
food safety program for a food business must comply with the 15
program in carrying on the business. 16
Maximum penalty--500 penalty units. 17
124 Keeping copy of accredited food safety program 18
A licensee who, under section 99, must have an accredited 19
food safety program for a food business must keep a copy of 20
the program at each fixed premises and mobile premises from 21
which the business is carried on. 22
Maximum penalty--50 penalty units. 23
125 Inspection of accredited food safety program 24
A licensee who, under section 99, must have an accredited 25
food safety program for a food business must keep the 26
program available for inspection by the licensee's employees 27
s 126 80 s 127
Food Bill 2005
in the food business. 1
Maximum penalty--50 penalty units. 2
126 Offence about advertising 3
A licensee who is not the holder of an accredited food safety 4
program for a food business must not advertise that the 5
licensee has an accredited food safety program for the 6
business. 7
Maximum penalty--200 penalty units. 8
Chapter 5 Auditors 9
Part 1 Functions and approval of 10
auditors 11
Division 1 Functions 12
127 Auditor's functions 13
The functions of an auditor are as follows-- 14
(a) to advise local governments about the accreditation of 15
food safety programs; 16
(b) to conduct audits of accredited food safety programs 17
under chapter 6; 18
(c) to prepare, under section 161, reports of audits 19
conducted by the auditor; 20
(d) to give the chief executive information requested by the 21
chief executive about audits conducted by the auditor; 22
(e) any other function about accreditation or auditing of 23
food safety programs prescribed under a regulation. 24
s 128 81 s 132
Food Bill 2005
Division 2 Obtaining approval as auditor 1
128 Application for approval as auditor 2
(1) An individual may apply to the chief executive for an approval 3
as an auditor. 4
(2) The application must comply with section 151. 5
129 Consideration of application 6
The chief executive must consider the application and decide 7
to grant, or refuse to grant, the application. 8
130 Criteria for granting application 9
The chief executive may grant the application only if satisfied 10
the applicant-- 11
(a) has the necessary expertise or experience to perform the 12
functions of an auditor; and 13
(b) is a suitable person to be an auditor. 14
131 Suitability of person to be an auditor 15
In deciding whether the applicant is a suitable person to be an 16
auditor, the chief executive may have regard to-- 17
(a) whether the applicant has been refused an approval or an 18
accreditation as an auditor under this Act or a 19
corresponding law; or 20
(b) whether the applicant held an approval or an 21
accreditation as an auditor under this Act or a 22
corresponding law that was suspended or cancelled; or 23
(c) another matter the chief executive considers relevant to 24
the person's ability to perform the functions of an 25
auditor. 26
132 Inquiry about application 27
(1) Before deciding the application, the chief executive-- 28
s 133 82 s 134
Food Bill 2005
(a) may make inquiries to decide the suitability of the 1
applicant to be an auditor; and 2
(b) may, by notice given to the applicant, require the 3
applicant to give the chief executive within the 4
reasonable period of at least 30 days stated in the notice, 5
further information or a document the chief executive 6
reasonably requires to decide the application. 7
(2) The applicant is taken to have withdrawn the application if, 8
within the stated period, the applicant does not comply with a 9
requirement under subsection (1)(b). 10
(3) A notice under subsection (1)(b) must be given to the 11
applicant within 30 days after the chief executive receives the 12
application. 13
(4) The information or document under subsection (1)(b) must, if 14
the notice requires, be verified by statutory declaration. 15
133 Decision on application 16
(1) If the chief executive decides to grant the application, the 17
chief executive must issue the approval to the applicant. 18
(2) If the chief executive decides to refuse to grant the 19
application, or to impose conditions on the approval under 20
section 136(1)(b), the chief executive must as soon as 21
practicable give the applicant an information notice for the 22
decision. 23
134 Failure to decide application 24
(1) Subject to subsections (2) and (3), if the chief executive fails 25
to decide the application within 30 days after its receipt, the 26
failure is taken to be a decision by the chief executive to refuse 27
to grant the application. 28
(2) Subsection (3) applies if-- 29
(a) a person has made an application for an approval; and 30
(b) the chief executive has, under section 132(1)(b), 31
required the applicant to give the chief executive further 32
information or a document. 33
s 135 83 s 136
Food Bill 2005
(3) The chief executive is taken to have refused to grant the 1
application if the chief executive does not decide the 2
application within 30 days after the chief executive receives 3
the further information or document. 4
(4) If the application is refused under this section, the applicant is 5
entitled to be given an information notice by the chief 6
executive for the decision. 7
Part 2 Term and conditions of 8
approval 9
135 Term of approval 10
An approval remains in force, unless sooner cancelled or 11
suspended, for the term of not more than 3 years decided by 12
the chief executive and stated in the approval. 13
136 Conditions of approval 14
(1) An auditor's approval is subject to the following conditions-- 15
(a) the auditor must give the chief executive notice of any 16
direct or indirect financial or other interest the auditor 17
has in a food business that could conflict with the proper 18
performance of the auditor's functions; 19
(b) other reasonable conditions the chief executive 20
considers appropriate for the proper conduct of an audit 21
and that are stated in the approval or of which the 22
auditor is notified under subsection (5). 23
(2) A notice under subsection (1)(a) must be given to the chief 24
executive immediately after the auditor becomes aware of the 25
interest. 26
(3) A condition may be imposed under subsection (1)(b)-- 27
(a) when the approval is issued or renewed; or 28
s 137 84 s 138
Food Bill 2005
(b) at another time if the chief executive considers it 1
necessary to impose the condition to ensure an audit 2
under this Act is conducted appropriately. 3
(4) Without limiting subsection (1)(b), the chief executive may 4
impose a condition under the subsection stating the type of 5
food business in relation to which the auditor is approved to 6
conduct audits. 7
(5) If the chief executive decides to impose conditions on the 8
approval under subsection (3)(b), the chief executive must as 9
soon as practicable give the auditor an information notice for 10
the decision. 11
137 Auditor to comply with conditions of approval 12
(1) An auditor must not contravene a condition of the auditor's 13
approval. 14
Maximum penalty--100 penalty units. 15
(2) The penalty under subsection (1) may be imposed whether or 16
not the approval is suspended or cancelled because of the 17
contravention. 18
Part 3 Renewal of approvals 19
138 Application for renewal 20
(1) An auditor may apply to the chief executive for renewal of the 21
auditor's approval. 22
(2) The application must-- 23
(a) be made within 30 days before the term of the approval 24
ends; and 25
(b) comply with section 151. 26
(3) The chief executive must consider the application and decide 27
to renew, or refuse to renew, the approval. 28
(4) In deciding the application, the chief executive may have 29
regard to the matters to which the chief executive may have 30
s 139 85 s 140
Food Bill 2005
regard in deciding whether an applicant for an approval is a 1
suitable person to be an auditor.22 2
(5) If the chief executive decides to refuse to renew the approval, 3
or to impose conditions on the approval under section 4
136(1)(b), the chief executive must as soon as practicable give 5
the auditor an information notice for the decision. 6
(6) An approval may be renewed by issuing another approval to 7
replace it. 8
139 Inquiry about application 9
(1) Before deciding an application under section 138, the chief 10
executive may, by notice given to the applicant, require the 11
applicant to give the chief executive within the reasonable 12
period of at least 30 days stated in the notice, further 13
information or a document the chief executive reasonably 14
requires to decide the application. 15
(2) The applicant is taken to have withdrawn the application if, 16
within the stated period, the applicant does not comply with 17
the requirement. 18
(3) The information or document under subsection (1) must, if the 19
notice requires, be verified by statutory declaration. 20
140 Approval continues pending decision about renewal 21
(1) If an auditor applies for renewal of an approval under section 22
138, the approval is taken to continue in force from the day it 23
would, apart from this section, have ended until the 24
application is decided under section 138 or taken to have been 25
withdrawn under section 139(2). 26
(2) However, if an application mentioned in subsection (1) is 27
refused, the approval continues in force until the information 28
notice for the decision is given to the auditor. 29
(3) Subsection (1) does not apply if the approval is earlier 30
suspended or cancelled. 31
22 See section 131 (Suitability of person to be an auditor).
s 141 86 s 142
Food Bill 2005
Part 4 Amending conditions of 1
approvals--application by 2
auditor 3
141 Application by auditor to amend conditions of approval 4
(1) An auditor may apply to the chief executive to amend the 5
conditions of the auditor's approval imposed under section 6
136(1)(b). 7
(2) The application must-- 8
(a) be accompanied by the approval; and 9
(b) comply with section 151. 10
(3) The chief executive must consider the application and decide 11
to amend, or refuse to amend, the conditions of the approval. 12
(4) The chief executive may amend the conditions of the approval 13
only if satisfied the applicant has the necessary expertise or 14
experience relevant to the auditing activity the applicant 15
intends to carry out under the approval. 16
(5) If the chief executive decides to refuse to amend the 17
conditions of the approval, the chief executive must as soon as 18
practicable give the applicant-- 19
(a) the approval; and 20
(b) an information notice for the decision. 21
(6) If the chief executive decides to amend the conditions of the 22
approval, the chief executive must as soon as practicable issue 23
to the applicant another approval showing the amendment. 24
142 Inquiry about application 25
(1) Before deciding the application, the chief executive may, by 26
notice given to the auditor, require the auditor to give the chief 27
executive within the reasonable period of at least 30 days 28
stated in the notice, further information or a document the 29
chief executive reasonably requires to decide the application. 30
s 143 87 s 144
Food Bill 2005
(2) The auditor is taken to have withdrawn the application if, 1
within the stated period, the auditor does not comply with the 2
requirement. 3
(3) The information or document under subsection (1) must, if the 4
notice requires, be verified by statutory declaration. 5
143 Failure to decide application 6
(1) Subject to subsections (2) and (3), if the chief executive fails 7
to decide the application within 30 days after its receipt, the 8
failure is taken to be a decision by the chief executive to 9
refuse to amend the approval. 10
(2) Subsection (3) applies if-- 11
(a) an auditor has made an application to amend the 12
conditions of the auditor's approval; and 13
(b) the chief executive has, under section 142(1), required 14
the auditor to give the chief executive further 15
information or a document. 16
(3) The chief executive is taken to have refused to amend the 17
approval if the chief executive does not decide the application 18
within 30 days after the chief executive receives the further 19
information or document verified, if required, by statutory 20
declaration. 21
(4) If the application is refused under this section, the applicant is 22
entitled to be given an information notice by the chief 23
executive for the decision. 24
Part 5 Suspension or cancellation of 25
approvals 26
144 Grounds for suspension or cancellation 27
(1) Each of the following is a ground for suspending or cancelling 28
an auditor's approval-- 29
s 145 88 s 145
Food Bill 2005
(a) the auditor is not, or is no longer, a suitable person to be 1
an auditor; 2
(b) the auditor does not have the necessary expertise or 3
experience to perform the auditor's functions; 4
(c) the auditor has contravened a condition of the approval; 5
(d) the audits conducted by the auditor have not been 6
conducted honestly, fairly or diligently; 7
(e) the approval was issued because of a materially false or 8
misleading representation or declaration. 9
(2) For forming a belief that the ground mentioned in subsection 10
(1)(a) exists, the chief executive may have regard to the 11
matters to which the chief executive may have regard in 12
deciding whether a person is a suitable person to be an 13
auditor.23 14
145 Show cause notice 15
(1) If the chief executive believes a ground exists to suspend or 16
cancel the approval, the chief executive must give the auditor 17
a notice under this section (a show cause notice). 18
(2) The show cause notice must state the following-- 19
(a) the action the chief executive proposes taking under this 20
part (the proposed action); 21
(b) the grounds for the proposed action; 22
(c) an outline of the facts and circumstances forming the 23
basis for the grounds; 24
(d) if the proposed action is suspension of the 25
approval--the proposed suspension period; 26
(e) that the auditor may, within a stated period (the show 27
cause period), make written representations to the chief 28
executive to show why the proposed action should not 29
be taken. 30
(3) The show cause period must end at least 21 days after the 31
auditor is given the show cause notice. 32
23 See section 131 (Suitability of person to be an auditor).
s 146 89 s 148
Food Bill 2005
146 Representations about show cause notice 1
(1) The auditor may make written representations about the show 2
cause notice to the chief executive in the show cause period. 3
(2) The chief executive must consider all representations (the 4
accepted representations) made under subsection (1). 5
147 Ending show cause process without further action 6
If, after considering the accepted representations for the show 7
cause notice, the chief executive no longer believes a ground 8
exists to suspend or cancel the approval, the chief executive-- 9
(a) must not take any further action about the show cause 10
notice; and 11
(b) must give the auditor a notice that no further action is to 12
be taken about the show cause notice. 13
148 Suspension or cancellation 14
(1) This section applies if-- 15
(a) there are no accepted representations for the show cause 16
notice; or 17
(b) after considering the accepted representations for the 18
show cause notice, the chief executive-- 19
(i) still believes a ground exists to suspend or cancel 20
the approval; and 21
(ii) believes suspension or cancellation of the approval 22
is warranted. 23
(2) The chief executive may-- 24
(a) if the proposed action was to suspend the 25
approval--suspend the approval for not longer than the 26
proposed suspension period; or 27
(b) if the proposed action was to cancel the 28
approval--cancel the approval or suspend it for a 29
period. 30
s 149 90 s 149
Food Bill 2005
(3) If the chief executive decides to take action under subsection 1
(2), the chief executive must as soon as practicable give an 2
information notice for the decision to the auditor. 3
(4) The decision takes effect on the later of the following-- 4
(a) the day the information notice is given to the auditor; 5
(b) the day stated in the information notice for that purpose. 6
149 Immediate suspension of approval 7
(1) The chief executive may suspend an auditor's approval 8
immediately if the chief executive believes-- 9
(a) a ground exists to suspend or cancel the approval; and 10
(b) it is necessary to suspend the approval immediately 11
because of an immediate and serious risk to public 12
health or safety if the auditor were to continue to 13
conduct audits. 14
(2) The suspension-- 15
(a) can be effected only by the chief executive giving an 16
information notice to the auditor about the decision to 17
suspend the approval, together with a show cause notice; 18
and 19
(b) operates immediately the notices are given to the 20
auditor; and 21
(c) continues to operate until the earliest of the following 22
happens-- 23
(i) the chief executive cancels the remaining period of 24
the suspension; 25
(ii) the show cause notice is finally dealt with; 26
(iii) 30 days have passed since the notices were given to 27
the auditor. 28
(3) Subsection (4) applies if-- 29
(a) a suspension under this section stops because-- 30
(i) the chief executive cancels the remaining period of 31
the suspension; or 32
s 150 91 s 151
Food Bill 2005
(ii) the show cause notice is finally dealt with by a 1
decision being made not to cancel or suspend the 2
approval; or 3
(iii) 30 days have passed since the notices mentioned in 4
subsection (2)(a) were given to the auditor; and 5
(b) the auditor has returned the approval to the chief 6
executive under section 150. 7
(4) The chief executive must, as soon as practicable, give the 8
approval to the auditor. 9
150 Return of cancelled or suspended approval to chief 10
executive 11
(1) This section applies if the chief executive has cancelled or 12
suspended an approval and given an information notice for the 13
decision to the auditor. 14
(2) The auditor must return the approval to the chief executive 15
within 7 days after receiving the information notice, unless 16
the auditor has a reasonable excuse. 17
Maximum penalty--20 penalty units. 18
Part 6 General provisions 19
151 Applications--general 20
(1) This section applies to an application for-- 21
(a) an approval as an auditor under section 128; or 22
(b) the renewal of an approval under section 138; or 23
(c) an amendment of the conditions of an approval under 24
section 141. 25
(2) The application must-- 26
(a) be in the approved form; and 27
(b) be signed by the applicant; and 28
s 152 92 s 154
Food Bill 2005
(c) be accompanied by the fee prescribed under a 1
regulation. 2
(3) The approved form of an application mentioned in subsection 3
(1)(a) must make provision for stating details of-- 4
(a) the type of food business for which the approval is 5
sought; and 6
(b) the applicant's direct or indirect financial or other 7
interests, if any, in a food business that could conflict 8
with the proper performance of an auditor's functions. 9
152 Form of approval 10
An approval must-- 11
(a) be in the approved form; and 12
(b) state the following particulars-- 13
(i) the auditor's name and contact details; 14
(ii) the conditions of the approval imposed under 15
section 136(1)(b); 16
(iii) the term of the approval. 17
153 Surrender of approval 18
(1) An auditor may surrender the auditor's approval by notice 19
given to the chief executive. 20
(2) The approval must accompany the notice. 21
(3) The surrender takes effect on the later of the following-- 22
(a) the day the notice is given to the chief executive; 23
(b) the day stated in the notice for that purpose. 24
154 Application for replacement of approval 25
(1) An auditor may apply for replacement of the auditor's 26
approval if the approval has been damaged, destroyed, lost or 27
stolen. 28
(2) The application must-- 29
s 155 93 s 156
Food Bill 2005
(a) be made to the chief executive; and 1
(b) include information about the circumstances in which 2
the approval was damaged, destroyed, lost or stolen; and 3
(c) be accompanied by the fee prescribed under a 4
regulation. 5
155 Decision about application for replacement of approval 6
(1) The chief executive must consider the application and decide 7
to grant, or refuse to grant, the application. 8
(2) The chief executive must grant the application if satisfied the 9
approval has been destroyed, lost or stolen, or damaged in a 10
way to require its replacement. 11
(3) If the chief executive decides to grant the application, the 12
chief executive must, as soon as practicable, issue another 13
approval to the applicant to replace the damaged, destroyed, 14
lost or stolen approval. 15
(4) If the chief executive decides to refuse to grant the 16
application, the chief executive must as soon as practicable 17
give the applicant an information notice for the decision. 18
Chapter 6 Audits of accredited food 19
safety programs 20
Part 1 Preliminary 21
156 Purpose of ch 6 22
The purpose of this chapter is to provide for-- 23
(a) auditing accredited food safety programs; and 24
s 157 94 s 158
Food Bill 2005
(b) monitoring the conduct of compliance audits; and 1
(c) reporting the results of audits. 2
Part 2 Audits 3
Division 1 Compliance audits 4
157 First compliance audit of accredited food safety program 5
(1) The holder of an accredited food safety program for a food 6
business must, within 6 months after the program is 7
accredited, have the first compliance audit of the program 8
conducted by an appropriate auditor for the food business. 9
Maximum penalty--100 penalty units. 10
(2) Subsection (1) applies to the holder despite any decision, 11
under chapter 4, part 3, of the local government that 12
accredited the program about the frequency of compliance 13
audits for the program. 14
158 Particular licensee to have compliance audits conducted 15
(1) This section applies to a licensee who, under section 99, must 16
have an accredited food safety program for the food business 17
under the licence. 18
(2) The licensee must have compliance audits of the program 19
conducted, as required under chapter 4, part 3, by an 20
appropriate auditor for the food business. 21
22
Note--
23
Under chapter 4, part 3, the local government that accredits a food
24
safety program decides the frequency of compliance audits for the
25
program.
Maximum penalty--100 penalty units. 26
(3) This section is subject to section 157. 27
s 159 95 s 161
Food Bill 2005
Division 2 Check audits and nonconformance 1
audits 2
159 Check audit 3
The chief executive may conduct a check audit of an 4
accredited food safety program if the chief executive 5
considers it appropriate to conduct the audit. 6
160 Nonconformance audit 7
(1) This section applies if-- 8
(a) a local government receives under section 161, in a 9
period of 12 months, at least 3 audit reports in relation to 10
audits of a particular accredited food safety program; 11
and 12
(b) each report shows the holder of the program has not 13
remedied a particular noncompliance with the program. 14
(2) The local government may conduct a nonconformance audit 15
of the food safety program. 16
(3) The nonconformance audit may be conducted by an auditor 17
who is also an authorised person appointed by the chief 18
executive officer of the local government. 19
Division 3 Auditors' reports and 20
responsibilities 21
161 Report about audit for compliance or nonconformance 22
audit 23
(1) An auditor must, within 14 days after completing a 24
compliance or nonconformance audit of an accredited food 25
safety program, give a report about the audit to-- 26
(a) the holder of the program; and 27
(b) the local government that accredited it. 28
Maximum penalty--100 penalty units. 29
s 161 96 s 161
Food Bill 2005
(2) The report must include all of the following information-- 1
(a) the auditor's name; 2
(b) the days the audit started and ended, and the time spent 3
conducting the audit; 4
(c) the address of, or other information sufficient to 5
identify, the place at which the audit was conducted; 6
(d) details of the activities audited, and the food safety 7
program relevant to the audit; 8
(e) whether, in the auditor's opinion, the activities comply 9
or do not comply with the food safety program or the 10
food standards code, standards 3.2.2 and 3.2.3;24 11
(f) the reasons that the auditor considers the activities 12
comply or do not comply with the food safety program 13
or the food standards code, standards 3.2.2 and 3.2.3; 14
(g) if the activities do not comply with the food safety 15
program or the food standards code, standards 3.2.2 and 16
3.2.3--details of action taken, or proposed to be taken, 17
to remedy the noncompliance; 18
(h) whether, in the auditor's opinion and having regard to 19
the matters mentioned in section 104,25 the food safety 20
program needs to be amended, and if so, the reasons that 21
the auditor considers the program should be amended; 22
(i) whether, in the auditor's opinion-- 23
(i) an auditor needs to conduct a nonconformance 24
audit of the food safety program in relation to any 25
noncompliance identified in the audit; or 26
(ii) the frequency of compliance audits for the food 27
safety program should be changed, and if so, the 28
reasons that the auditor considers the frequency 29
should be changed; 30
(j) other information prescribed under a regulation. 31
24 Food Standards Code, standards 3.2.2 (Food Safety Practices and General
Requirements) and 3.2.3 (Food premises and equipment)
25 Section 104 (Criteria for accrediting food safety program)
s 162 97 s 163
Food Bill 2005
162 Auditor's responsibility to inform local governments 1
(1) This section applies if, in conducting a compliance or 2
nonconformance audit of an accredited food safety program, 3
an auditor forms a reasonable belief that-- 4
(a) a person has contravened, or is contravening, this Act or 5
the food standards code, standards 3.2.2 and 3.2.3; and 6
(b) the contravention poses an imminent and serious risk to 7
the safety of food intended for sale. 8
(2) The auditor must give details of the facts and circumstances 9
giving rise to the belief to the local government that accredited 10
the food safety program. 11
(3) The auditor must give the details to the local government as 12
soon as practicable, and in any case not more than 24 hours, 13
after forming the belief. 14
Maximum penalty--500 penalty units. 15
(4) If the auditor complies with subsection (3) by giving the local 16
government the details orally, the auditor must, within 24 17
hours after giving the details orally, give the local government 18
notice of the details. 19
Maximum penalty--500 penalty units. 20
Part 3 Other matters 21
163 Obstructing auditor 22
(1) A person must not obstruct an auditor in the conduct of an 23
audit, unless the person has a reasonable excuse. 24
Maximum penalty--100 penalty units. 25
(2) If a person has obstructed an auditor and the auditor decides to 26
proceed with the conduct of the audit, the auditor must warn 27
the person that-- 28
s 164 98 s 165
Food Bill 2005
(a) it is an offence to obstruct the auditor unless the person 1
has a reasonable excuse; and 2
(b) the auditor considers the person's conduct an 3
obstruction. 4
(3) In this section-- 5
obstruct includes hinder and attempt to obstruct or hinder. 6
164 Impersonating auditor 7
A person must not pretend to be an auditor. 8
Maximum penalty--100 penalty units. 9
Chapter 7 Monitoring and 10
enforcement 11
Part 1 Authorised persons 12
Division 1 Preliminary 13
165 Powers generally 14
(1) An authorised person has the powers given under this Act. 15
(2) In exercising the powers, the authorised person is subject to 16
the directions of the administering executive. 17
(3) If the authorised person is appointed by 2 or more chief 18
executive officers, the authorised person is subject to the 19
directions of the chief executive officer of the local 20
government for the area in which the authorised person is 21
exercising his or her powers under this Act. 22
s 166 99 s 168
Food Bill 2005
166 Powers of particular authorised persons limited to local 1
government area 2
(1) An authorised person appointed by the chief executive officer 3
of a local government under section 168(2) may exercise a 4
power under this Act only in relation to the local government 5
and its area. 6
(2) An authorised person appointed by the chief executive officers 7
of 2 or more local governments under section 168(3) may 8
exercise a power under this Act only in relation to the local 9
governments and their areas. 10
167 Functions of authorised person 11
An authorised person has the following functions relating to 12
the carrying on of a food business-- 13
(a) to enforce this Act; 14
(b) to monitor compliance with this Act by inspecting 15
places where a food business is carried on; 16
(c) to help achieve the purposes of this Act by providing 17
advice and information on how the purposes may be 18
achieved. 19
Division 2 Appointment of authorised persons 20
168 Appointment and qualifications 21
(1) The chief executive may appoint any of the following persons 22
as an authorised person-- 23
(a) a public service officer or employee; 24
(b) a health service employee; 25
(c) a person prescribed under a regulation. 26
(2) The chief executive officer of a local government may appoint 27
any of the following persons as an authorised person for the 28
local government and its area-- 29
(a) an employee of the local government; 30
s 169 100 s 170
Food Bill 2005
(b) if another local government consents--an employee of 1
the other local government; 2
(c) another person under contract to the local government. 3
(3) The chief executive officers of 2 or more local governments 4
may appoint an employee of, or another person under contract 5
to, one of the local governments to be an authorised person for 6
the local governments' areas. 7
(4) However, the chief executive or a chief executive officer may 8
appoint a person as an authorised person only if satisfied the 9
person is qualified for appointment because the person has the 10
necessary expertise or experience. 11
169 Appointment conditions and limit on powers 12
(1) An authorised person holds office on any conditions stated 13
in-- 14
(a) the authorised person's instrument of appointment; or 15
(b) a signed notice given to the authorised person; or 16
(c) a regulation. 17
(2) The instrument of appointment, a signed notice given to the 18
authorised person or a regulation may limit the authorised 19
person's powers under this Act. 20
(3) In this section-- 21
signed notice means a notice signed by the administering 22
executive. 23
170 Issue of identity card 24
(1) The administering executive must issue an identity card to 25
each authorised person. 26
(2) The identity card must-- 27
(a) contain a recent photo of the authorised person; and 28
(b) contain a copy of the authorised person's signature; and 29
(c) identify the person as an authorised person under this 30
Act; and 31
s 171 101 s 172
Food Bill 2005
(d) state an expiry date for the card. 1
(3) This section does not prevent the issue of a single identity 2
card to a person for this Act and other purposes. 3
171 Production or display of identity card 4
(1) In exercising a power under this Act in relation to another 5
person, an authorised person must-- 6
(a) produce the authorised person's identity card for the 7
other person's inspection before exercising the power; 8
or 9
(b) have the identity card displayed so it is clearly visible to 10
the other person when exercising the power. 11
(2) However, if it is not practicable to comply with subsection 12
(1), the authorised person must produce the identity card for 13
the other person's inspection at the first reasonable 14
opportunity. 15
(3) For subsection (1), an authorised person does not exercise a 16
power in relation to another person only because the 17
authorised person has entered a place as mentioned in section 18
175(1)(b) or (2). 19
172 When authorised person ceases to hold office 20
(1) An authorised person ceases to hold office if any of the 21
following happens-- 22
(a) the term of office stated in a condition of office ends; 23
(b) under another condition of office, the authorised person 24
ceases to hold office; 25
(c) the authorised person's resignation under section 173 26
takes effect. 27
(2) Subsection (1) does not limit the ways an authorised person 28
may cease to hold office. 29
(3) In this section-- 30
condition of office means a condition on which the authorised 31
person holds office. 32
s 173 102 s 175
Food Bill 2005
173 Resignation 1
(1) An authorised person may resign by signed notice given to the 2
administering executive. 3
(2) For subsection (1), for a person appointed under this Act as an 4
authorised person by 2 or more chief executive officers, the 5
person may resign by signed notice given to one of the chief 6
executives. 7
174 Return of identity card 8
(1) A person who ceases to be an authorised person must return 9
the person's identity card to the administering executive 10
within 21 days after ceasing to be an authorised person, unless 11
the person has a reasonable excuse. 12
Maximum penalty--20 penalty units. 13
(2) For subsection (1), for a person appointed under this Act as an 14
authorised person by 2 or more chief executive officers, the 15
identity card must be returned to one of the chief executive 16
officers. 17
Part 2 Powers of authorised persons 18
Division 1 Entry of places 19
175 Power to enter places 20
(1) An authorised person may enter a place if-- 21
(a) an occupier of the place consents to the entry; or 22
(b) it is a public place and the entry is made when it is open 23
to the public; or 24
(c) the entry is authorised by a warrant; or 25
(d) it is premises at which a person carries on a food 26
business and is-- 27
(i) open for carrying on the food business; or 28
s 176 103 s 176
Food Bill 2005
(ii) otherwise open for entry. 1
(2) For the purpose of asking an occupier of a place for consent to 2
enter, an authorised person may, without the occupier's 3
consent or a warrant-- 4
(a) enter land around premises at the place to an extent that 5
is reasonable to contact the occupier; or 6
(b) enter part of the place the authorised person reasonably 7
considers members of the public ordinarily are allowed 8
to enter when they wish to contact the occupier. 9
(3) For subsection (1)(d), premises does not include a part of the 10
premises where a person resides. 11
Division 2 Procedure for entry 12
176 Entry with consent 13
(1) This section applies if an authorised person intends to ask an 14
occupier of a place to consent to the authorised person or 15
another authorised person entering the place under section 16
175(1)(a). 17
(2) Before asking for the consent, the authorised person must tell 18
the occupier-- 19
(a) the purpose of the entry; and 20
(b) that the occupier is not required to consent. 21
(3) If the consent is given, the authorised person may ask the 22
occupier to sign an acknowledgment of the consent. 23
(4) The acknowledgment must state-- 24
(a) the occupier has been told-- 25
(i) the purpose of the entry; and 26
(ii) that the occupier is not required to consent; and 27
(b) the purpose of the entry; and 28
(c) the occupier gives the authorised person consent to enter 29
the place and exercise powers under this part; and 30
(d) the time and date the consent was given. 31
s 177 104 s 178
Food Bill 2005
(5) If the occupier signs the acknowledgment, the authorised 1
person must immediately give a copy to the occupier. 2
(6) If-- 3
(a) an issue arises in a proceeding about whether the 4
occupier consented to the entry; and 5
(b) an acknowledgment complying with subsection (4) for 6
the entry is not produced in evidence; 7
the onus of proof is on the person relying on the lawfulness of 8
the entry to prove the occupier consented. 9
177 Application for warrant 10
(1) An authorised person may apply to a magistrate for a warrant 11
for a place. 12
(2) The authorised person must prepare a written application that 13
states the grounds on which the warrant is sought. 14
(3) The written application must be sworn. 15
(4) The magistrate may refuse to consider the application until the 16
authorised person gives the magistrate all the information the 17
magistrate requires about the application in the way the 18
magistrate requires. 19
20
Example--
21
The magistrate may require additional information supporting the
22
application to be given by statutory declaration.
178 Issue of warrant 23
(1) The magistrate may issue the warrant for the place only if the 24
magistrate is satisfied there are reasonable grounds for 25
suspecting-- 26
(a) there is a particular thing or activity (the evidence) that 27
may provide evidence of an offence against this Act; and 28
(b) the evidence is at the place or, within the next 7 days, 29
will be at the place. 30
(2) The warrant must state-- 31
(a) the place to which the warrant applies; and 32
s 179 105 s 179
Food Bill 2005
(b) that a stated authorised person may, with necessary and 1
reasonable help and force-- 2
(i) enter the place and any other place necessary for 3
entry to the place; and 4
(ii) exercise the authorised person's powers under this 5
part; and 6
(c) particulars of the offence that the magistrate considers 7
appropriate in the circumstances; and 8
(d) the name of the person suspected of having committed 9
the offence, unless the name is unknown or the 10
magistrate considers it inappropriate to state the name; 11
and 12
(e) the evidence that may be seized under the warrant; and 13
(f) the hours of the day or night when the place may be 14
entered; and 15
(g) the magistrate's name; and 16
(h) the date and time of the warrant's issue; and 17
(i) the date, within 14 days after the warrant's issue, the 18
warrant ends. 19
179 Application by electronic communication and duplicate 20
warrant 21
(1) An application under section 177 may be made by phone, fax, 22
email, radio, videoconferencing or another form of electronic 23
communication if the authorised person reasonably considers 24
it necessary because of-- 25
(a) urgent circumstances; or 26
(b) other special circumstances, including, for example, the 27
authorised person's remote location. 28
(2) The application-- 29
(a) may not be made before the authorised person prepares 30
the written application under section 177(2); but 31
(b) may be made before the written application is sworn. 32
s 179 106 s 179
Food Bill 2005
(3) The magistrate may issue the warrant (the original warrant) 1
only if the magistrate is satisfied-- 2
(a) it was necessary to make the application under 3
subsection (1); and 4
(b) the way the application was made under subsection (1) 5
was appropriate. 6
(4) After the magistrate issues the original warrant-- 7
(a) if there is a reasonably practicable way of immediately 8
giving a copy of the warrant to the authorised person, for 9
example, by sending a copy by fax or email, the 10
magistrate must immediately give a copy of the warrant 11
to the authorised person; or 12
(b) otherwise-- 13
(i) the magistrate must tell the authorised person the 14
date and time the warrant is issued and the other 15
terms of the warrant; and 16
(ii) the authorised person must complete a form of 17
warrant including by writing on it-- 18
(A) the magistrate's name; and 19
(B) the date and time the magistrate issued the 20
warrant; and 21
(C) the other terms of the warrant. 22
(5) The copy of the warrant mentioned in subsection (4)(a), or the 23
form of warrant completed under subsection (4)(b) (in either 24
case the duplicate warrant), is a duplicate of, and as effectual 25
as, the original warrant. 26
(6) The authorised person must, at the first reasonable 27
opportunity, send to the magistrate-- 28
(a) the written application complying with section 177(2) 29
and (3); and 30
(b) if the authorised person completed a form of warrant 31
under subsection (4)(b)--the completed form of 32
warrant. 33
(7) The magistrate must keep the original warrant and, on 34
receiving the documents under subsection (6)-- 35
s 180 107 s 181
Food Bill 2005
(a) attach the documents to the original warrant; and 1
(b) give the original warrant and documents to the clerk of 2
the court of the relevant magistrates court. 3
(8) Despite subsection (5), if-- 4
(a) an issue arises in a proceeding about whether an 5
exercise of a power was authorised by a warrant issued 6
under this section; and 7
(b) the original warrant is not produced in evidence; 8
the onus of proof is on the person relying on the lawfulness of 9
the exercise of the power to prove a warrant authorised the 10
exercise of the power. 11
(9) This section does not limit section 177. 12
(10) In this section-- 13
relevant magistrates court, in relation to a magistrate, means 14
the Magistrates Court that the magistrate constitutes under the 15
Magistrates Act 1991. 16
180 Defect in relation to a warrant 17
(1) A warrant is not invalidated by a defect in the warrant, or in 18
compliance with section 177, 178 or 179, unless the defect 19
affects the substance of the warrant in a material particular. 20
(2) In this section-- 21
warrant includes a duplicate warrant mentioned in section 22
179(5). 23
181 Warrants--procedure before entry 24
(1) This section applies if an authorised person named in a 25
warrant issued under this part for a place is intending to enter 26
the place under the warrant. 27
(2) Before entering the place, the authorised person must do or 28
make a reasonable attempt to do the following things-- 29
(a) identify himself or herself to a person present at the 30
place who is an occupier of the place by producing a 31
s 182 108 s 182
Food Bill 2005
copy of the authorised person's identity card or other 1
document evidencing the appointment; 2
(b) give the person a copy of the warrant; 3
(c) tell the person the authorised person is permitted by the 4
warrant to enter the place; 5
(d) give the person an opportunity to allow the authorised 6
person immediate entry to the place without using force. 7
(3) However, the authorised person need not comply with 8
subsection (2) if the authorised person believes on reasonable 9
grounds that immediate entry to the place is required to ensure 10
the effective execution of the warrant is not frustrated. 11
(4) In this section-- 12
warrant includes a duplicate warrant mentioned in section 13
179(5). 14
Division 3 General powers 15
182 General powers after entering places 16
(1) This section applies to an authorised person who enters a 17
place. 18
(2) However, if an authorised person enters a place to get an 19
occupier's consent to enter a place, this section applies to the 20
authorised person only if the consent is given or the entry is 21
otherwise authorised. 22
(3) For monitoring and enforcing compliance with this Act, the 23
authorised person may-- 24
(a) search any part of the place; or 25
(b) inspect, measure, test, photograph or film any part of the 26
place or anything at the place; or 27
(c) take a thing, or a sample of or from a thing, at the place 28
for analysis; or 29
(d) copy a document at the place or take the document to 30
another place to copy it; or 31
s 183 109 s 184
Food Bill 2005
(e) take into or onto the place any persons, equipment and 1
materials the authorised person reasonably requires for 2
exercising a power under this part; or 3
(f) require an occupier of the place, or a person at the place, 4
to give the authorised person reasonable help to exercise 5
the authorised person's powers under paragraphs (a) to 6
(e); or 7
(g) require an occupier of the place, or a person at the place, 8
to give the authorised person information to help the 9
authorised person find out whether this Act is being 10
complied with. 11
(4) When making a requirement mentioned in subsection (3)(f) or 12
(g), the authorised person must warn the person it is an 13
offence to fail to comply with the requirement, unless the 14
person has a reasonable excuse. 15
(5) If an authorised person takes a document from a place to copy 16
it, the document must be copied as soon as practicable and 17
returned to the place. 18
183 Failure to help authorised person 19
(1) A person required to give reasonable help under section 20
182(3)(f) must comply with the requirement, unless the 21
person has a reasonable excuse. 22
Maximum penalty--50 penalty units. 23
(2) If an individual is required under section 182(3)(f) to give 24
information, or produce a document, it is a reasonable excuse 25
for the individual to fail to comply with the requirement that 26
complying with the requirement might tend to incriminate the 27
individual. 28
184 Failure to give information 29
(1) A person of whom a requirement is made under section 30
182(3)(g) must comply with the requirement, unless the 31
person has a reasonable excuse. 32
Maximum penalty--50 penalty units. 33
s 185 110 s 185
Food Bill 2005
1
Note--
2
Also, under section 267(3) it is an offence for a person to state anything
3
to an authorised person the person knows to be false or misleading in a
4
material particular.
(2) It is a reasonable excuse for an individual to fail to comply 5
with the requirement that complying with the requirement 6
might tend to incriminate the individual. 7
Division 4 Stopping or moving motor vehicles 8
185 Stopping or moving motor vehicle 9
(1) This section applies if an authorised person reasonably 10
suspects, or is aware, that a thing in or on a motor vehicle may 11
provide evidence of the commission of an offence against this 12
Act. 13
(2) For the purpose of exercising the powers of an authorised 14
person under this part, an authorised person may-- 15
(a) if the motor vehicle is moving--ask or signal the person 16
in control of the vehicle to stop the vehicle; and 17
(b) whether or not the motor vehicle is moving--ask or 18
signal the person in control of the vehicle to bring the 19
vehicle to a convenient place within a reasonable 20
distance to allow the authorised person to exercise the 21
authorised person's powers under this part. 22
(3) When asking or signalling the person in control of a moving 23
motor vehicle to stop the vehicle or bring it to a convenient 24
place, the authorised person must clearly identify himself or 25
herself as an authorised person exercising the authorised 26
person's powers under this Act. 27
28
Examples--
29
1 If the authorised person is in a moving motor vehicle, he or she may
30
use a loud hailer to identify himself or herself as an authorised
31
person exercising powers under this Act.
32
2 If the authorised person is standing at the side of the road, he or she
33
may use a sign to identify himself or herself as an authorised person
34
exercising powers under this Act.
s 185 111 s 185
Food Bill 2005
(4) Despite section 171,26 for the purpose of exercising a power 1
under subsection (2)(a), the authorised person must-- 2
(a) have with him or her the authorised person's identity 3
card; and 4
(b) produce the identity card for the person's inspection 5
immediately after the motor vehicle is stopped. 6
(5) The person must comply with the authorised person's request 7
or signal, unless the person has a reasonable excuse. 8
Maximum penalty--50 penalty units. 9
(6) It is a reasonable excuse for the person not to obey the request 10
or signal if-- 11
(a) in a case to which subsection (3) applies, the authorised 12
person has not complied with the subsection; or 13
(b) to immediately obey the request or signal would have 14
endangered the person or someone else or caused loss or 15
damage to property, and the person obeys the request or 16
signal as soon as it is practicable to obey it. 17
(7) If the motor vehicle is stopped, the authorised person may 18
direct the person-- 19
(a) not to move the vehicle until the authorised person has 20
exercised the authorised person's powers under this part; 21
or 22
(b) to move the vehicle to, and keep it at, a stated reasonable 23
place to allow the authorised person to exercise the 24
authorised person's powers under this part. 25
(8) When giving the direction, the authorised person must warn 26
the person it is an offence not to comply with the direction, 27
unless the person has a reasonable excuse. 28
(9) The person must comply with the authorised person's 29
direction, unless the person has a reasonable excuse. 30
Maximum penalty for subsection (9)--50 penalty units. 31
26 Section 171 (Production or display of identity card)
s 186 112 s 187
Food Bill 2005
Division 5 Power to seize evidence 1
186 Seizing evidence at a place that may be entered without 2
consent or warrant 3
An authorised person who enters a place under this part 4
without the consent of the occupier and without a warrant, 5
may seize a thing at the place only if the authorised person 6
reasonably believes the thing is evidence of an offence against 7
this Act. 8
187 Seizing evidence at a place that may only be entered with 9
consent or warrant 10
(1) This section applies if-- 11
(a) an authorised person is authorised to enter a place under 12
this part only with the consent of an occupier of the 13
place or a warrant; and 14
(b) the authorised person enters the place after obtaining the 15
necessary consent or warrant. 16
(2) If the authorised person enters the place with the occupier's 17
consent, the authorised person may seize a thing at the place 18
only if-- 19
(a) the authorised person reasonably believes the thing is 20
evidence of an offence against this Act; and 21
(b) seizure of the thing is consistent with the purpose of 22
entry as told to the occupier when asking for the 23
occupier's consent. 24
(3) If the authorised person enters the place with a warrant, the 25
authorised person may seize the evidence for which the 26
warrant was issued. 27
(4) The authorised person also may seize anything else at the 28
place if the authorised person reasonably believes-- 29
(a) the thing is evidence of an offence against this Act; and 30
(b) the seizure is necessary to prevent the thing being-- 31
(i) hidden, lost or destroyed; or 32
(ii) used to continue, or repeat, the offence. 33
s 188 113 s 190
Food Bill 2005
(5) Also, the authorised person may seize a thing at the place if 1
the authorised person reasonably believes it has just been used 2
in committing an offence against this Act. 3
Division 6 Dealing with seized things 4
188 Securing seized things 5
Having seized a thing, an authorised person may-- 6
(a) move the thing from the place where it was seized (the 7
place of seizure); or 8
(b) leave the thing at the place of seizure, but take 9
reasonable action to restrict access to it. 10
11
Examples of restricting access to a thing--
12
· sealing a thing and marking it to show access to it is
13
restricted
14
· sealing the entrance to a room where the thing is situated
15
and marking it to show access to it is restricted
189 Tampering with seized things 16
(1) If an authorised person restricts access to a seized thing, a 17
person must not tamper with the thing, or something 18
restricting access to the thing, without an authorised person's 19
approval. 20
Maximum penalty--100 penalty units. 21
(2) In this section-- 22
tamper includes attempt to tamper. 23
190 Powers to support seizure 24
(1) To enable a thing to be seized, an authorised person may 25
require the person in control of it-- 26
(a) to take it to a stated reasonable place by a stated 27
reasonable time; and 28
(b) if necessary, to remain in control of it at the stated place 29
for a reasonable time. 30
s 191 114 s 192
Food Bill 2005
(2) The requirement-- 1
(a) must be made by notice; or 2
(b) if for any reason it is not practicable to give the notice, 3
may be made orally and confirmed by notice as soon as 4
practicable. 5
(3) A further requirement may be made under this section about 6
the same thing if it is necessary and reasonable to make the 7
further requirement. 8
(4) A person of whom a requirement is made under subsection (1) 9
or (3) must comply with the requirement, unless the person 10
has a reasonable excuse. 11
Maximum penalty--100 penalty units. 12
(5) Subject to section 213,27 the cost of complying with 13
subsection (4) must be borne by the person. 14
191 Authorised person may require thing's return 15
(1) If an authorised person has required a person to take a thing to 16
a stated place by a stated reasonable time under section 190 17
the authorised person may require the person to return the 18
thing to the place from which it was taken. 19
(2) A person of whom a requirement is made under subsection (1) 20
must comply with the requirement, unless the person has a 21
reasonable excuse. 22
Maximum penalty--100 penalty units. 23
(3) Subject to section 213, the cost of complying with subsection 24
(2) must be borne by the person. 25
192 Receipts for seized things 26
(1) As soon as practicable after an authorised person seizes a 27
thing, the authorised person must give a receipt for it to the 28
person from whom it was seized. 29
(2) However, if for any reason it is not practicable to comply with 30
subsection (1), the authorised person must leave the receipt at 31
27 Section 213 (Compensation)
s 193 115 s 193
Food Bill 2005
the place of seizure in a conspicuous position and in a 1
reasonably secure way. 2
(3) The receipt must describe generally each thing seized and its 3
condition. 4
(4) This section does not apply to a thing if it is impracticable or 5
would be unreasonable to give the receipt, given the thing's 6
nature, condition and value. 7
193 Forfeiture of seized things 8
(1) A seized thing is forfeited to the relevant entity if the 9
authorised person who seized the thing-- 10
(a) can not find its owner, after making reasonable 11
inquiries; or 12
(b) can not return it to its owner, after making reasonable 13
efforts. 14
(2) In applying subsection (1)-- 15
(a) subsection (1)(a) does not require the authorised person 16
to make inquiries if it would be unreasonable to make 17
inquiries to find the owner; and 18
(b) subsection (1)(b) does not require the authorised person 19
to make efforts if it would be unreasonable to make 20
efforts to return the thing to its owner. 21
(3) Regard must be had to a thing's nature, condition and value in 22
deciding-- 23
(a) whether it is reasonable to make inquiries or efforts; and 24
(b) if making inquiries or efforts, what inquiries or efforts, 25
including the period over which they are made, are 26
reasonable. 27
(4) On the forfeiture of a thing to the relevant entity, the thing 28
becomes the entity's property. 29
(5) If the thing is forfeited to the State, it may be dealt with by the 30
chief executive as the chief executive considers appropriate. 31
(6) If the thing is forfeited to a local government, it may be dealt 32
with by the chief executive officer as the chief executive 33
officer considers appropriate. 34
s 194 116 s 195
Food Bill 2005
(7) Without limiting subsections (5) and 6), the chief executive or 1
chief executive officer may destroy or dispose of the thing. 2
(8) Despite subsection (7), the chief executive or chief executive 3
officer must not deal with the thing in a way that could 4
prejudice the outcome of an appeal under this Act of which 5
the chief executive or chief executive officer is aware. 6
(9) In this section-- 7
relevant entity, for a seized thing, means-- 8
(a) if the thing was seized by an authorised person 9
appointed by the chief executive--the State; or 10
(b) if the thing was seized by an authorised person 11
appointed by a chief executive officer--the local 12
government; or 13
(c) if the thing was seized by an authorised person 14
appointed by 2 or more chief executive officers--the 15
local government for whom the authorised person was 16
performing his or her functions at the time the thing was 17
seized. 18
194 Return of seized things 19
(1) If a thing has been seized but not forfeited or destroyed under 20
this part, the authorised person must return it to its owner-- 21
(a) at the end of 6 months; or 22
(b) if a proceeding for an offence involving the thing is 23
started within 6 months, at the end of the proceeding and 24
any appeal from the proceeding. 25
(2) However, unless the thing has been forfeited or destroyed 26
under this part, the authorised person must immediately return 27
a thing seized as evidence to its owner if the authorised person 28
stops being satisfied its continued retention as evidence is 29
necessary. 30
195 Access to seized things 31
(1) Until a thing that has been seized is forfeited, destroyed or 32
returned under this part, an authorised person must allow its 33
owner to inspect it and, if it is a document, to copy it. 34
s 196 117 s 197
Food Bill 2005
(2) Subsection (1) does not apply if it is impracticable or would 1
be unreasonable to allow the inspection or copying. 2
196 Power of destruction 3
An authorised person may destroy a thing seized under this 4
part if-- 5
(a) the thing consists wholly or partly of contaminated or 6
decomposed matter; or 7
(b) the authorised person reasonably believes the thing 8
poses an immediate risk to public health or safety. 9
Division 7 Power to obtain information 10
197 Power to require name and address 11
(1) This section applies if-- 12
(a) an authorised person finds a person committing an 13
offence against this Act; or 14
(b) an authorised person finds a person in circumstances 15
that lead, or has information that leads, the authorised 16
person reasonably to suspect the person has just 17
committed an offence against this Act. 18
(2) The authorised person may require the person to state the 19
person's name and residential address. 20
(3) When making the requirement, the authorised person must 21
warn the person it is an offence to fail to state the person's 22
name or residential address, unless the person has a 23
reasonable excuse. 24
(4) The authorised person may require the person to give the 25
authorised person evidence of the correctness of the stated 26
name or residential address if the authorised person 27
reasonably suspects the stated name or address to be false. 28
(5) A requirement under subsection (2) or (4) is a personal details 29
requirement. 30
s 198 118 s 199
Food Bill 2005
198 Failure to give name or address 1
(1) A person of whom a personal details requirement is made 2
must comply with the requirement, unless the person has a 3
reasonable excuse. 4
Maximum penalty--50 penalty units. 5
(2) A person does not commit an offence against subsection (1) 6
if-- 7
(a) the person was required to state the person's name and 8
residential address by an authorised person who 9
suspected the person had committed an offence against 10
this Act; and 11
(b) the person is not proved to have committed the offence 12
against this Act. 13
199 Power to require production of documents 14
(1) An authorised person may require a person to make available 15
for inspection by an authorised person, or produce to the 16
authorised person for inspection, at a reasonable time and 17
place nominated by the authorised person-- 18
(a) a document issued to the person under this Act; or 19
(b) a document required to be kept by the person under this 20
Act. 21
(2) The authorised person may keep the document to copy it. 22
(3) If the authorised person copies the document, or an entry in 23
the document, the authorised person may require the person 24
responsible for keeping the document to certify the copy as a 25
true copy of the document or entry. 26
(4) The authorised person must return the document to the person 27
as soon as practicable after copying it. 28
(5) However, if a requirement (a document certification 29
requirement) is made of a person under subsection (3), the 30
authorised person may keep the document until the person 31
complies with the requirement. 32
(6) A requirement under subsection (1) is a document production 33
requirement. 34
s 200 119 s 202
Food Bill 2005
200 Failure to produce document 1
(1) A person of whom a document production requirement is 2
made must comply with the requirement, unless the person 3
has a reasonable excuse. 4
Maximum penalty--50 penalty units. 5
(2) It is not a reasonable excuse for a person not to comply with a 6
document production requirement that complying with the 7
requirement might tend to incriminate the person. 8
201 Failure to certify copy of document 9
A person of whom a document certification requirement is 10
made must comply with the requirement, unless the person 11
has a reasonable excuse. 12
Maximum penalty--50 penalty units. 13
202 Power to require information 14
(1) This section applies if an authorised person reasonably 15
believes-- 16
(a) an offence against this Act has been committed; and 17
(b) a person may be able to give information about the 18
offence. 19
(2) The authorised person may, by notice given to the person, 20
require the person to give information about the offence to the 21
authorised person at a stated reasonable time and place. 22
(3) The person must comply with a requirement under subsection 23
(2), unless the person has a reasonable excuse. 24
Maximum penalty--50 penalty units. 25
(4) It is a reasonable excuse for an individual to fail to give 26
information if giving the information might tend to 27
incriminate the individual. 28
s 203 120 s 205
Food Bill 2005
Division 8 Emergency powers of authorised 1
persons 2
203 Application of div 8 3
This division applies if an authorised person is satisfied on 4
reasonable grounds-- 5
(a) a food business is being carried out at a place, other than 6
a place, or part of a place, used for residential purposes; 7
and 8
(b) it is necessary to exercise powers under this division to 9
avoid an imminent risk of death or serious illness of any 10
person from food being handled or sold in connection 11
with the food business. 12
204 Power and procedure for entry 13
(1) The authorised person may, without a warrant or the consent 14
of the occupier of the place, enter the place. 15
(2) Before entering the place, the authorised person must do or 16
make a reasonable attempt to do the following things-- 17
(a) comply with section 171(1);28 18
(b) tell the occupier the authorised person is permitted 19
under this Act to enter the place; 20
(c) give the occupier an opportunity to allow the authorised 21
person immediate entry to the place without using force. 22
(3) However, the authorised person need not comply with 23
subsection (2) if the authorised person reasonably believes 24
that immediate entry to the place is required to avoid an 25
imminent risk of death or serious illness of any person. 26
205 Power in relation to food 27
(1) The authorised person may in relation to the food mentioned 28
in section 203(b)-- 29
28 Section 171 (Production or display of identity card)
s 206 121 s 206
Food Bill 2005
(a) direct a person at the place to take stated reasonable 1
steps within a stated reasonable period; or 2
(b) take the reasonable steps; or 3
(c) authorise another person to take the reasonable steps. 4
(2) The direction may be given orally or by notice. 5
(3) However, if the direction is given orally, the authorised person 6
must as soon as practicable confirm the direction by notice 7
given to the person. 8
(4) When giving the direction under subsection (1)(a), the 9
authorised person must warn the person it is an offence not to 10
comply with the direction unless the person has a reasonable 11
excuse. 12
(5) If the authorised person takes the steps, the authorised person 13
also may exercise any of the powers of an authorised person 14
under this part. 15
206 How power may be exercised 16
(1) The authorised person may exercise the powers mentioned in 17
sections 204(1) and 205(1)(b) and (5) (the emergency powers) 18
with the help, and using the force, that is necessary and 19
reasonable in the circumstances. 20
(2) In exercising or attempting to exercise emergency powers, an 21
authorised person must take all reasonable steps to ensure the 22
authorised person causes as little inconvenience to any person 23
at the place, and does as little damage, as is practicable in the 24
circumstances. 25
(3) If an authorised person authorises a person to take steps under 26
section 205(1)(c)-- 27
(a) the person may exercise the powers mentioned in 28
section 205(5); and 29
(b) the authorised person must inform the person-- 30
(i) of the steps the person is authorised to take; and 31
(ii) of the person's powers under this division. 32
s 207 122 s 209
Food Bill 2005
207 Failure to comply with authorised person's directions in 1
emergency 2
A person to whom a direction is given under section 205(1)(a) 3
must comply with the direction, unless the person has a 4
reasonable excuse. 5
Maximum penalty--200 penalty units. 6
208 Authorised person's powers not affected 7
This division does not limit any power an authorised person 8
has apart from the division. 9
Division 9 Improvement notices 10
209 Improvement notice 11
(1) This section applies if an authorised person reasonably 12
believes-- 13
(a) a person carrying on a food business-- 14
(i) is contravening a provision of this Act; or 15
(ii) has contravened a provision of this Act in 16
circumstances that make it likely the contravention 17
will continue or be repeated; and 18
(b) a matter relating to the contravention can be remedied; 19
and 20
(c) it is appropriate to give the person an opportunity to 21
remedy the matter; and 22
(d) if the person is a licensee--a local government has not 23
given a show cause notice to the person under section 79 24
relating to the contravention. 25
(2) The authorised person may give the person a notice (an 26
improvement notice) requiring the person to remedy the 27
contravention or have the contravention remedied. 28
(3) The improvement notice must state the following-- 29
(a) that the authorised person reasonably believes the 30
person-- 31
s 209 123 s 209
Food Bill 2005
(i) is contravening a provision of this Act; or 1
(ii) has contravened a provision of this Act in 2
circumstances that make it likely the contravention 3
will continue or be repeated; 4
(b) the provision the authorised person believes is being, or 5
has been, contravened (the relevant provision); 6
(c) briefly, how it is believed the relevant provision is being, 7
or has been, contravened; 8
(d) the period in which the person must remedy the 9
contravention or have the contravention remedied; 10
(e) that it is an offence to fail to comply with the 11
improvement notice unless the person has a reasonable 12
excuse. 13
(4) The period stated under subsection (3)(d) must be reasonable 14
having regard to the risk to public health or safety posed by 15
the contravention. 16
(5) The improvement notice may also state the reasonable steps 17
that the authorised person considers necessary to remedy the 18
contravention, or avoid further contravention, of the relevant 19
provision. 20
21
Example of reasonable steps--
22
implementation of a cleaning or pest control schedule at premises where
23
a food business is carried on
(6) The authorised person must keep a copy of the improvement 24
notice. 25
(7) The person must comply with the improvement notice unless 26
the person has a reasonable excuse. 27
Maximum penalty-- 28
(a) if a contravention of the relevant provision is an 29
offence--the maximum penalty for contravening the 30
relevant provision; or 31
(b) otherwise--200 penalty units. 32
(8) If it is an offence to contravene the relevant provision for 33
which the improvement notice is given, the person can not be 34
prosecuted for that offence unless the person fails to comply 35
s 210 124 s 211
Food Bill 2005
with the improvement notice and does not have a reasonable 1
excuse for the noncompliance. 2
(9) A person may be prosecuted for the contravention of a 3
relevant provision without an authorised person first giving an 4
improvement notice for the contravention. 5
210 Approval for particular improvement notice 6
(1) This section applies to an improvement notice given to a 7
person by an authorised person appointed by a chief executive 8
officer. 9
(2) If remedying the contravention, or having it remedied, within 10
the reasonable time stated in the notice would be likely to stop 11
the person's food business from operating, the notice must be 12
approved by the local government before it is given to the 13
person. 14
211 Record of compliance with improvement notice 15
(1) If a person who is given an improvement notice by an 16
authorised person under this division reasonably believes he 17
or she has complied with the notice, the person may inform 18
the authorised person of the belief. 19
(2) If the authorised person is satisfied the person has complied 20
with the improvement notice, the authorised person must-- 21
(a) record the date of the compliance on the authorised 22
person's copy of the notice; and 23
(b) if asked, give a copy of the notice to the person. 24
s 212 125 s 213
Food Bill 2005
Part 3 General enforcement matters 1
Division 1 Notice of damage and 2
compensation 3
212 Notice of damage 4
(1) This section applies if-- 5
(a) an authorised person damages property when exercising 6
or purporting to exercise a power; or 7
(b) a person (the other person) acting under the direction or 8
authority of an authorised person damages property. 9
(2) The authorised person must immediately give notice of 10
particulars of the damage to a person who appears to the 11
authorised person to be an owner of the property. 12
(3) If the authorised person believes the damage was caused by a 13
latent defect in the property or circumstances beyond the 14
authorised person's or other person's control, the authorised 15
person may state the belief in the notice. 16
(4) If, for any reason, it is impracticable to comply with 17
subsection (2), the authorised person must leave the notice in 18
a conspicuous position and in a reasonably secure way at the 19
place where the damage happened. 20
(5) This section does not apply to damage the authorised person 21
reasonably believes is trivial. 22
(6) In this section-- 23
owner, of property, includes a person in possession or control 24
of it. 25
213 Compensation 26
(1) If a person incurs loss or expense because of the exercise or 27
purported exercise of a power under part 2, other than the 28
exercise or purported exercise of a power under section 196 to 29
s 214 126 s 214
Food Bill 2005
destroy a thing seized under part 2, the person may claim 1
compensation-- 2
(a) for the exercise or purported exercise of a power by or 3
for the State--from the State; or 4
(b) for the exercise or purported exercise of a power by or 5
for a local government--from the local government. 6
(2) Without limiting subsection (1), compensation may be 7
claimed for loss or expense incurred in complying with a 8
requirement made of the person under part 2. 9
(3) Compensation may be claimed and ordered to be paid in a 10
proceeding-- 11
(a) brought in a court with jurisdiction for the recovery of 12
the amount of compensation claimed; or 13
(b) for an offence against this Act brought against the 14
person claiming compensation. 15
(4) A court may order compensation to be paid only if it is 16
satisfied it is just to make the order in the circumstances of the 17
particular case. 18
Division 2 Other matters 19
214 Obstructing authorised person 20
(1) A person must not obstruct an authorised person in the 21
exercise of a power, unless the person has a reasonable 22
excuse. 23
Maximum penalty--100 penalty units. 24
(2) If a person has obstructed an authorised person and the 25
authorised person decides to proceed with the exercise of the 26
power, the authorised person must warn the person that-- 27
(a) it is an offence to obstruct the authorised person unless 28
the person has a reasonable excuse; and 29
(b) the authorised person considers the person's conduct an 30
obstruction. 31
s 215 127 s 217
Food Bill 2005
(3) In this section-- 1
obstruct includes hinder and attempt to obstruct or hinder. 2
215 Impersonating authorised person 3
A person must not pretend to be an authorised person. 4
Maximum penalty--100 penalty units. 5
Part 4 Emergency powers of chief 6
executive 7
216 Making of order 8
The chief executive may make an order under this part if the 9
chief executive has reasonable grounds to believe that the 10
making of the order is necessary to prevent or reduce the 11
possibility of a serious danger to public health or to mitigate 12
the adverse consequences of a serious danger to public health. 13
217 Nature of order 14
(1) An order under this part may do any 1 or more of the 15
following-- 16
(a) require the publication of warnings, in a form approved 17
by the chief executive, that a particular food or type of 18
food is unsafe; 19
(b) prohibit the cultivation, taking, harvesting or obtaining, 20
from a stated area, of a particular food or type of food or 21
other primary produce intended to be used for human 22
consumption; 23
(c) prohibit a particular food or type of food from being 24
advertised or sold; 25
(d) direct that a particular food or type of food consigned or 26
distributed for sale or sold be recalled and state the way 27
in which, and the period within which, the recall must 28
be conducted; 29
s 218 128 s 218
Food Bill 2005
(e) direct that a particular food or type of food intended to 1
be used for human consumption be impounded, isolated, 2
destroyed or otherwise disposed of and state the way in 3
which the impounding, isolation, destruction or disposal 4
must be conducted; 5
(f) prohibit absolutely the carrying on of an activity in 6
relation to a particular food or type of food, or permit 7
the carrying on of the activity only under conditions 8
stated in the order; 9
(g) without limiting paragraph (f), impose conditions 10
relating to the taking and analysis of samples of the food 11
or of water or soil or another thing that is part of the 12
environment in which that activity is carried on in 13
relation to the food; 14
(h) state methods of analysis (not inconsistent with any 15
methods prescribed by the food standards code) of any 16
samples required to be taken under the order. 17
(2) An order under this part may be varied or revoked by the chief 18
executive in the same way as the order was made. 19
218 Special provisions relating to recall orders 20
(1) A recall order may require the person, or the persons of a 21
class, that is bound by the order to disclose to the public or to 22
a class of persons stated in the order, in a way so stated, any 1 23
or more of the following-- 24
(a) the particular food or type of food to be recalled or 25
disposed of; 26
(b) the reasons why the food is considered to be unsafe; 27
(c) the circumstances in which consumption of the food is 28
unsafe; 29
(d) procedures for disposing of the food. 30
(2) A person who is required by a recall order to conduct a recall 31
of food must give notice to the chief executive of the 32
completion of the recall as soon as practicable after the 33
completion. 34
s 219 129 s 219
Food Bill 2005
(3) A person who is bound by a recall order is liable for any cost 1
incurred by or on behalf of the chief executive in connection 2
with the recall order and that cost is taken to be a debt due to 3
the chief executive from the person. 4
(4) In proceedings for the recovery of the debt, a certificate 5
signed by the chief executive stating the amount of any costs 6
and the way in which they were incurred is evidence of the 7
matters certified. 8
219 Way of making orders 9
(1) An order under this part-- 10
(a) must be made in writing addressed to the person or 11
persons intended to be bound by it, and served on that 12
person or each of those persons, as the case requires; or 13
(b) must be addressed to several persons, to a class of 14
persons, or to all persons. 15
(2) Notice of an order addressed as mentioned in subsection 16
(1)(b) setting out the order and the persons to be bound by the 17
order must, as soon as practicable after the order is made, be 18
published in a newspaper that, in the opinion of the chief 19
executive, will be most likely to bring the order to the 20
attention of the persons to be bound by it. 21
(3) An order under this part, when it takes effect, is binding on the 22
person or persons to whom it is addressed. 23
(4) An order that is served on a person takes effect when it is 24
served. 25
(5) An order, notice of which is published under subsection (2), 26
takes effect at the beginning of the first day on which the 27
notice was published. 28
(6) An order ceases to have effect at the expiration of 90 days 29
after the day on which it takes effect unless it is sooner 30
revoked. 31
(7) Subsection (6) does not prevent a further order being made in 32
the same terms as an order that has ceased to have effect. 33
s 220 130 s 221
Food Bill 2005
220 Compensation 1
(1) A person bound by an order under this part who suffers loss 2
because of the making of the order may apply to the chief 3
executive for compensation if the person considers that there 4
were insufficient grounds for the making of the order. 5
(2) If there were insufficient grounds for the making of the order, 6
the chief executive must pay the compensation to the 7
applicant that is just and reasonable. 8
(3) The chief executive must give notice about his or her decision 9
about the payment of compensation under this section to each 10
applicant for the payment of the compensation. 11
(4) If the chief executive has not decided an application for 12
compensation under this section within 28 days after 13
receiving the application, the chief executive is taken to have 14
decided to refuse to pay any compensation. 15
(5) If the chief executive refuses an application for compensation 16
or decides an amount of compensation less than that sought by 17
the applicant, the notice must also state the following-- 18
(a) the reasons for the decision; 19
(b) that the applicant may appeal against the decision within 20
28 days; 21
(c) how the applicant may appeal against the decision. 22
221 Failure to comply with order 23
A person must not, without reasonable excuse-- 24
(a) contravene a prohibition imposed on the person by an 25
order under this part; or 26
(b) contravene a direction given by an order under this part; 27
or 28
(c) contravene a condition stated in an order under this part. 29
Maximum penalty--700 penalty units. 30
s 222 131 s 224
Food Bill 2005
Part 5 Injunctions 1
222 Application of pt 5 2
This part applies if-- 3
(a) a person has engaged, is engaging or is proposing to 4
engage, in conduct that constitutes or would constitute a 5
contravention of section 32, 33 or 34;29 and 6
(b) the chief executive or a chief executive officer has 7
reasonable grounds to believe that an injunction under 8
the part is necessary to prevent or reduce the possibility 9
of a serious danger to public health or to mitigate the 10
adverse consequences of a serious danger to public 11
health. 12
223 Who may apply for an injunction 13
The chief executive or chief executive officer may apply to the 14
District Court for an injunction in relation to the conduct. 15
224 District Court's powers 16
(1) On considering the application for an injunction, the District 17
Court may grant an injunction-- 18
(a) restraining the person from engaging in the conduct 19
concerned; and 20
(b) if in the court's opinion it is desirable to do so, requiring 21
the person to do anything. 22
(2) The power of the court to grant an injunction restraining a 23
person from engaging in conduct may be exercised-- 24
(a) whether or not it appears to the court that the person 25
intends to engage again, or to continue to engage, in the 26
conduct; and 27
(b) whether or not the person has previously engaged in the 28
conduct. 29
29 Section 32 (Handling of food in unsafe way), 33 (Sale of unsafe food) or 34 (False
description of food)
s 225 132 s 226
Food Bill 2005
(3) The power of the court to grant an injunction requiring a 1
person to do an act or thing may be exercised-- 2
(a) whether or not it appears to the court that the person 3
intends to fail again, or to continue to fail, to do the act 4
or thing; and 5
(b) whether or not the person has previously failed to do the 6
act or thing. 7
(4) An interim injunction may be granted under this part until the 8
application is finally decided. 9
(5) The District Court may rescind or vary an injunction at any 10
time. 11
(6) The powers conferred on the District Court under this part are 12
in addition to, and do not limit, any other powers of the court. 13
225 Terms of injunction 14
(1) The District Court may grant an injunction in the terms the 15
court considers appropriate. 16
(2) Without limiting subsection (1), an injunction may be granted 17
restraining a person from carrying on a food business, whether 18
or not the food business is carried on as part of, or incidental 19
to, the carrying on of another business-- 20
(a) for a stated period; or 21
(b) except on stated terms and conditions. 22
(3) Also, the court may grant an injunction requiring a person to 23
take stated action, including action to disclose information or 24
publish advertisements, to remedy any adverse consequences 25
of the person's conduct. 26
226 Undertakings as to damages or costs 27
If the chief executive or a chief executive officer applies for an 28
injunction under this part, no undertaking as to damages or 29
costs may be required to be made. 30
s 227 133 s 229
Food Bill 2005
Chapter 8 Analysis of things 1
Part 1 State analysts and approval of 2
laboratories 3
227 Appointment and qualifications 4
(1) The chief executive may appoint any of the following persons 5
as a State analyst-- 6
(a) a public service officer or employee of the department; 7
(b) a health service employee; 8
(c) a person prescribed under a regulation. 9
(2) A person may be appointed as a State analyst under 10
subsection (1) to carry out any type, or only particular types, 11
of analysis. 12
(3) However, the chief executive may appoint a person as a State 13
analyst only if satisfied the person is qualified for 14
appointment because the person has the necessary expertise or 15
experience. 16
228 Appointment conditions 17
(1) A State analyst holds office on any conditions stated in-- 18
(a) the State analyst's instrument of appointment; or 19
(b) a signed notice given to the State analyst; or 20
(c) a regulation. 21
(2) In this section-- 22
signed notice means a notice signed by the chief executive. 23
229 When State analyst ceases to hold office 24
(1) A State analyst ceases to hold office if any of the following 25
happens-- 26
s 230 134 s 232
Food Bill 2005
(a) the term of office stated in a condition of office ends; 1
(b) under another condition of office, the State analyst 2
ceases to hold office; 3
(c) the State analyst's resignation under section 230 takes 4
effect. 5
(2) Subsection (1) does not limit the ways a State analyst may 6
cease to hold office. 7
(3) In this section-- 8
condition of office means a condition on which the State 9
analyst holds office. 10
230 Resignation 11
A State analyst may resign by signed notice given to the chief 12
executive. 13
231 Chief executive may approve laboratory 14
The chief executive may approve a laboratory to analyse 15
things taken under this Act if the chief executive is satisfied 16
the laboratory has the resources and expertise to conduct the 17
analysis. 18
Part 2 Other matters about analysis of 19
things 20
232 Analysis 21
(1) If an authorised person takes a thing for analysis under this 22
Act, the authorised person must as soon as practicable give it 23
to a State analyst appointed to carry out the particular type of 24
analysis required. 25
(2) If a State analyst receives a thing for analysis under 26
subsection (1), the State analyst must as soon as practicable-- 27
(a) analyse the thing; or 28
s 233 135 s 235
Food Bill 2005
(b) give the thing to an approved laboratory for analysis. 1
(3) If the State analyst analyses the thing, the State analyst must, 2
as soon as practicable after analysing it-- 3
(a) complete a certificate of analysis for it; and 4
(b) give the certificate to the authorised person who took the 5
thing for analysis. 6
(4) If an approved laboratory analyses the thing, the State analyst 7
must, as soon as practicable after it is analysed-- 8
(a) obtain a certificate of analysis for it from the approved 9
laboratory; and 10
(b) give the certificate to the authorised person who took the 11
thing for analysis. 12
233 Certificate must indicate methodology used 13
The certificate of analysis must include information about the 14
methodology used to conduct the analysis. 15
234 Giving results of analysis 16
(1) The chief executive must, if asked by a relevant person for a 17
thing analysed under this Act, give to the person a copy of the 18
certificate of analysis for the thing. 19
(2) In this section-- 20
relevant person, for a thing analysed under this Act, means-- 21
(a) the person from whom the thing was taken for analysis 22
or otherwise obtained; or 23
(b) the manufacturer or importer of the thing. 24
235 Prohibition about use of results of analysis 25
A person must not use any information on a certificate of 26
analysis for a thing to advertise or otherwise promote the 27
thing. 28
Maximum penalty--50 penalty units. 29
s 236 136 s 238
Food Bill 2005
Chapter 9 Reviews and appeals 1
Part 1 Internal review of decisions 2
236 Appeal process starts with internal review 3
(1) Subject to this part, a person who is given, or is entitled to be 4
given, an information notice for a decision under chapter 3, 4 5
or 530 (an original decision) may appeal against the decision 6
under this chapter. 7
(2) The appeal must be, in the first instance, by way of an 8
application for internal review under section 237. 9
237 Application for review 10
(1) The person may apply to the local government that gave, or 11
should have given, the person the information notice for a 12
review of an original decision under chapter 3 or 4. 13
(2) The person may apply to the chief executive for a review of an 14
original decision under chapter 5. 15
(3) The person to whom the application may be made is the 16
reviewer. 17
238 Applying for review 18
(1) The application must be made within 28 days after-- 19
(a) if the person is given an information notice for the 20
decision--the day the person is given the notice; or 21
(b) if paragraph (a) does not apply--the day the person 22
otherwise becomes aware of the original decision. 23
(2) The reviewer may, at any time, extend the time for applying 24
for the review. 25
30 Chapter 3 (Licences for particular food businesses), 4 (Food safety programs) or 5
(Auditors)
s 239 137 s 239
Food Bill 2005
(3) The application must be in writing and state fully the grounds 1
of the application. 2
239 Review decision 3
(1) After reviewing the original decision, the reviewer must make 4
a further decision (the review decision) to-- 5
(a) confirm the original decision; or 6
(b) amend the original decision; or 7
(c) substitute another decision for the original decision. 8
(2) The reviewer must immediately give the applicant notice of 9
the review decision (the review notice). 10
(3) If the review decision is not the decision sought by the 11
applicant, the review notice must also state-- 12
(a) the reasons for the review decision; and 13
(b) that the applicant may appeal against the review 14
decision, within 28 days after the person is given the 15
notice, to-- 16
(i) for a review decision made by a local 17
government--a Magistrates Court in the local 18
government's area; or 19
(ii) for another review decision--the Magistrates 20
Court nearest the place where the applicant lives or 21
carries on business or a Magistrates Court at 22
Brisbane; and 23
(c) how to appeal; and 24
(d) that the applicant may apply to the court for a stay of the 25
review decision. 26
(4) If the reviewer does not give the notice within 30 days after 27
the application is made, the reviewer is taken to have made a 28
review decision confirming the original decision on the 30th 29
day after the application is made. 30
(5) If the review decision confirms the original decision, for the 31
purpose of an appeal to the court, the original decision is 32
taken to be the review decision. 33
s 240 138 s 241
Food Bill 2005
(6) If the review decision amends the original decision, for the 1
purpose of an appeal to the court, the original decision as 2
amended is taken to be the review decision. 3
240 Stay of operation of decision 4
(1) If an application is made for a review of an original decision, 5
the applicant may immediately apply for a stay of the decision 6
to-- 7
(a) for an original decision made by a local government--a 8
Magistrates Court in the local government's area; or 9
(b) for another original decision--the Magistrates Court 10
nearest the place where the applicant lives or carries on 11
business or a Magistrates Court at Brisbane. 12
(2) The court may stay the decision to secure the effectiveness of 13
the review and any later appeal to the court. 14
(3) The stay-- 15
(a) may be given on conditions the court considers 16
appropriate; and 17
(b) operates for the period fixed by the court; and 18
(c) may be revoked or amended by the court. 19
(4) The period of the stay must not extend past the time when the 20
reviewer makes a review decision about the original decision 21
and any later period the court allows the applicant to enable 22
the applicant to appeal against the review decision. 23
(5) The application affects the decision, or carrying out of the 24
decision, only if the decision is stayed. 25
Part 2 Appeals 26
241 Who may appeal 27
(1) A person who has applied for the review of an original 28
decision under part 1 and is dissatisfied with the review 29
decision may appeal against the review decision. 30
s 242 139 s 243
Food Bill 2005
(2) An owner of a thing forfeited to a relevant entity under section 1
193(1), and not destroyed or disposed of under section 193, 2
who is dissatisfied with the decision resulting in the forfeiture 3
(the forfeiture decision) may appeal against the decision. 4
(3) A person who has applied for the payment of compensation 5
under section 220 and is dissatisfied with the chief executive's 6
decision to refuse to pay compensation or about the amount of 7
compensation (the compensation decision) may appeal 8
against the decision. 9
(4) In this section-- 10
relevant entity see section 193(9). 11
242 Starting appeal 12
(1) An appeal may be started at-- 13
(a) for a review decision made by a local government--a 14
Magistrates Court in the local government's area; or 15
(b) for another decision-- 16
(i) the Magistrates Court nearest the place where the 17
person lives or carries on business; or 18
(ii) a Magistrates Court at Brisbane. 19
(2) The notice of appeal under the Uniform Civil Procedure Rules 20
1999 must be filed with the registrar of the court within 28 21
days after-- 22
(a) if the person is given a review notice for the review 23
decision, or notice of the forfeiture decision or 24
compensation decision--the day the person is given the 25
notice; or 26
(b) if paragraph (a) does not apply--the day the person 27
otherwise becomes aware of the decision. 28
(3) The court may, at any time, extend the period for filing the 29
notice of appeal. 30
243 Stay of operation of review decision 31
(1) The court may grant a stay of the operation of a review 32
decision to secure the effectiveness of the appeal. 33
s 244 140 s 245
Food Bill 2005
(2) The stay-- 1
(a) may be given on conditions the court considers 2
appropriate; and 3
(b) operates for the period fixed by the court; and 4
(c) may be revoked or amended by the court. 5
(3) The period of the stay must not extend past the time when the 6
court decides the appeal. 7
(4) The appeal affects the decision, or carrying out of the 8
decision, only if the decision is stayed. 9
244 Hearing procedures 10
(1) In hearing the appeal, the court-- 11
(a) has the same powers as the person who made the 12
decision appealed against (the decision maker); and 13
(b) is not bound by the rules of evidence; and 14
(c) must comply with natural justice. 15
(2) The appeal is by way of rehearing, unaffected by the decision 16
appealed against, on the material before the decision maker 17
and any further evidence allowed by the court. 18
245 Court's powers on appeal 19
(1) In deciding the appeal, the court may-- 20
(a) confirm or amend the decision appealed against; or 21
(b) set aside the decision and substitute another decision; or 22
(c) set aside the decision and return the issue to the decision 23
maker with the directions the court considers 24
appropriate. 25
(2) If the court amends the decision appealed against, or 26
substitutes another decision, the amended or substituted 27
decision is, for this Act, other than this chapter, taken to be the 28
decision maker's decision. 29
s 246 141 s 248
Food Bill 2005
246 Appeal to District Court 1
An appeal lies to the District Court against a decision of a 2
Magistrates Court under this chapter, but only on a question of 3
law. 4
Chapter 10 Legal proceedings 5
Part 1 Application 6
247 Application of ch 10 7
This chapter applies to a proceeding under this Act. 8
Part 2 Evidence 9
248 Appointments and authority 10
The following must be presumed unless a party to the 11
proceeding, by reasonable notice, requires proof of it-- 12
(a) the appointment of-- 13
(i) the chief executive; or 14
(ii) a chief executive officer; or 15
(iii) an authorised person; or 16
(iv) a State analyst; 17
(b) the approval, under section 133(1), of a person as an 18
auditor; 19
(c) the authority of a person mentioned in paragraph (a) or 20
(b), or a local government, to do anything under this 21
Act. 22
s 249 142 s 250
Food Bill 2005
249 Signatures 1
A signature purporting to be the signature of the chief 2
executive, a chief executive officer, an authorised person, a 3
State analyst or an auditor is evidence of the signature it 4
purports to be. 5
250 Evidentiary provisions 6
(1) A certificate purporting to be signed by the chief executive or 7
a chief executive officer and stating any of the following 8
matters is evidence of the matter-- 9
(a) a stated document is one of the following things made, 10
given, issued or kept under this Act-- 11
(i) an appointment, approval or decision; 12
(ii) a notice or requirement; 13
(iii) a licence; 14
(iv) an order; 15
(v) a record, or an extract from a record; 16
(b) a stated document is another document kept under this 17
Act; 18
(c) a stated document is a copy of a thing mentioned in 19
paragraph (a) or (b); 20
(d) on a stated day, or during a stated period, a stated person 21
was or was not a licensee; 22
(e) on a stated day, or during a stated period, a licence -- 23
(i) was or was not in force; or 24
(ii) was or was not subject to a stated condition; 25
(f) on a stated day, a licence was suspended or cancelled; 26
(g) on a stated day, or during a stated period, an approval as 27
an auditor was, or was not, in force for a stated person; 28
(h) on a stated day, or during a stated period, an 29
appointment as an authorised person or a State analyst 30
was, or was not, in force for a stated person; 31
s 250 143 s 250
Food Bill 2005
(i) on a stated day, or during a stated period, an approval as 1
an approved laboratory was, or was not, in force for a 2
stated entity; 3
(j) on a stated day, a stated person was given a stated notice 4
or order under this Act; 5
(k) on a stated day, a stated requirement was made of a 6
stated person; 7
(l) a stated amount is payable under this Act by a stated 8
person and has not been paid. 9
(2) A certificate of analysis for a thing taken for analysis under 10
this Act stating any of the following matters is evidence of the 11
matters-- 12
(a) the qualifications of the person (the analyst) who 13
conducted the analysis; 14
(b) the analyst received the thing from a stated person; 15
(c) the thing was analysed at a stated place on a stated day 16
or during a stated period; 17
(d) the methodology used to analyse the thing; 18
(e) the results of the analysis. 19
(3) In a complaint starting a proceeding, a statement that the 20
matter of complaint came to the complainant's knowledge on 21
a stated day is evidence of when the matter came to the 22
complainant's knowledge. 23
(4) In a proceeding in which the State or a local government 24
applies under section 255 to recover costs incurred by the 25
State or local government, a certificate by the chief executive 26
for the State or the chief executive officer of the local 27
government stating that the costs were incurred and the way in 28
which, and the purpose for which, they were incurred is 29
evidence of the matters stated. 30
s 251 144 s 252
Food Bill 2005
Part 3 Proceedings 1
251 Summary offences 2
(1) A proceeding for an offence against this Act must be taken in 3
a summary way under the Justices Act 1886. 4
(2) The proceeding must start within the later of the following 5
periods to end-- 6
(a) 1 year after the commission of the offence; 7
(b) 6 months after the offence comes to the complainant's 8
knowledge, but within 2 years after the commission of 9
the offence. 10
252 Alternative verdicts for serious food offences 11
(1) If, on the trial of a person charged with an offence against 12
section 32,31 the trier of fact is not satisfied the person 13
committed the offence but is satisfied the person committed 14
an offence against section 35(1)32-- 15
(a) the trier of fact may find the person not guilty of the 16
offence charged but guilty of an offence against section 17
35(1); and 18
(b) the person is liable to be punished for that offence. 19
(2) If, on the trial of a person charged with an offence against 20
section 33,33 the trier of fact is not satisfied the person 21
committed the offence but is satisfied the person committed 22
an offence against section 35(2)-- 23
(a) the trier of fact may find the person not guilty of the 24
offence charged but guilty of an offence against section 25
35(2); and 26
(b) the person is liable to be punished for that offence. 27
31 Section 32 (Handling of food in unsafe way)
32 Section 35 (Handling and sale of unsafe food)
33 Section 33 (Sale of unsafe food)
s 253 145 s 255
Food Bill 2005
253 Independent analysis 1
(1) This section applies if, in a proceeding for an offence against 2
this Act in relation to food, of which a sample has been taken 3
or otherwise obtained under this Act-- 4
(a) there is disagreement between the evidence of the 5
analyst for the prosecution and that of the analyst for the 6
defence; and 7
(b) the sample or a part of the sample is in a suitable 8
condition to be analysed again. 9
(2) On the application of a party to the proceeding, the court must 10
order the authorised person who took the sample of food to 11
give the sample or part of the sample to-- 12
(a) an independent analyst for analysis; or 13
(b) the analyst for the prosecution and the analyst for the 14
defence for joint analysis. 15
(3) The court may make an order mentioned in subsection (2) if it 16
is satisfied it is just to make the order in the circumstances of 17
the particular case even if a party to the proceeding has not 18
applied for the order. 19
(4) The order may state how the sample of food is to be given to 20
an analyst mentioned in subsection (2). 21
254 Allegations of false or misleading information or 22
document 23
In any proceeding for an offence against this Act defined as 24
involving false or misleading information, or a false or 25
misleading document, it is enough for a charge to state that 26
the information or document was, without specifying which, 27
`false or misleading'. 28
255 Recovery of costs of investigation 29
(1) This section applies if-- 30
(a) a court convicts a person of an offence against this Act; 31
and 32
s 256 146 s 257
Food Bill 2005
(b) the State or a local government applies to the court for 1
an order against the person for the payment of the costs 2
the State or local government has incurred in taking a 3
thing or doing something else during the investigation of 4
the offence; and 5
(c) the court finds the State or local government has 6
reasonably incurred the costs. 7
(2) The court may order the person to pay the State or local 8
government an amount equal to the costs if it is satisfied it 9
would be just to make the order in the circumstances of the 10
particular case. 11
(3) This section does not limit the court's powers under the 12
Penalties and Sentences Act 1992 or another law. 13
256 Application for order for payment of costs under s 255 14
(1) An application to a court under section 255 is, and any order 15
made by the court on the application is a judgment, in the 16
court's civil jurisdiction. 17
(2) Any issue on the application is to be decided on the balance of 18
probabilities. 19
257 Forfeiture on conviction 20
(1) On conviction of a person for an offence against this Act, a 21
court may order the forfeiture to the State or a local 22
government of-- 23
(a) anything used to commit the offence; or 24
(b) anything else the subject of the offence. 25
(2) The court may make the order-- 26
(a) whether or not the thing has been seized; and 27
(b) if the thing has been seized, whether or not the thing has 28
been returned to its owner. 29
(3) The court may make any order to enforce the forfeiture it 30
considers appropriate. 31
(4) This section does not limit the court's powers under the 32
Penalties and Sentences Act 1992 or another law. 33
s 258 147 s 259
Food Bill 2005
258 Dealing with forfeited thing 1
(1) On the forfeiture of a thing to the State or a local government 2
under section 257, the thing becomes the State's or local 3
government's property and may be dealt with by the chief 4
executive or chief executive officer of the local government as 5
the chief executive or chief executive officer considers 6
appropriate. 7
(2) Without limiting subsection (1), the chief executive or chief 8
executive officer may destroy or dispose of the thing. 9
(3) However, the chief executive or chief executive officer must 10
not deal with the thing in a way that could prejudice the 11
outcome of an appeal under this Act of which the chief 12
executive or chief executive officer is aware. 13
259 Responsibility for acts or omissions of representative 14
(1) This section applies in a proceeding for an offence against this 15
Act. 16
(2) If it is relevant to prove a person's state of mind about a 17
particular act or omission, it is enough to show-- 18
(a) the act was done or omitted to be done by a 19
representative of the person within the scope of the 20
representative's actual or apparent authority; and 21
(b) the representative had the state of mind. 22
(3) An act done or omitted to be done for a person by a 23
representative of the person within the scope of the 24
representative's actual or apparent authority is taken to have 25
been done or omitted to be done also by the person, unless the 26
person proves the person could not, by the exercise of 27
reasonable diligence, have prevented the act or omission. 28
(4) In this section-- 29
representative means-- 30
(a) for a corporation--an executive officer, employee or 31
agent of the corporation; or 32
(b) for an individual--an employee or agent of the 33
individual. 34
s 260 148 s 261
Food Bill 2005
state of mind of a person includes-- 1
(a) the person's knowledge, intention, opinion, belief or 2
purpose; and 3
(b) the person's reasons for the intention, opinion, belief or 4
purpose. 5
260 Executive officers must ensure corporation complies 6
with Act 7
(1) The executive officers of a corporation must ensure the 8
corporation complies with this Act. 9
(2) If a corporation commits an offence against a provision of this 10
Act, each of the corporation's executive officers also commits 11
an offence, namely, the offence of failing to ensure the 12
corporation complies with the provision. 13
Maximum penalty--the penalty for the contravention of the 14
provision by an individual. 15
(3) Evidence that the corporation has been convicted of an 16
offence against a provision of this Act is evidence that each of 17
the executive officers committed the offence of failing to 18
ensure the corporation complies with the provision. 19
(4) However, it is a defence for an executive officer to prove-- 20
(a) if the officer was in a position to influence the conduct 21
of the corporation in relation to the offence, the officer 22
exercised reasonable diligence to ensure the corporation 23
complied with the provision; or 24
(b) the officer was not in a position to influence the conduct 25
of the corporation in relation to the offence. 26
261 Fines payable to local government 27
(1) Subsection (2) applies if-- 28
(a) a proceeding for an offence about a matter is taken by a 29
local government; and 30
(b) a court imposes a fine for the offence. 31
(2) The fine must be paid to the local government. 32
s 262 149 s 262
Food Bill 2005
Chapter 11 Miscellaneous 1
Part 1 Guidelines and registers of 2
auditors and food businesses 3
Division 1 Guidelines 4
262 Chief executive may make guidelines 5
(1) The chief executive may make guidelines to provide guidance 6
to local governments, persons who carry on a food business 7
and members of the public about matters relating to the 8
administration of this Act. 9
(2) Without limiting subsection (1), a guideline may be about the 10
following matters-- 11
(a) food safety in non-profit or other food businesses; 12
(b) the assessment of applications for a licence; 13
(c) monitoring and enforcement of the Act; 14
(d) the expertise and experience required for a person to be 15
an authorised person; 16
(e) the appointment of authorised persons; 17
(f) the skills and knowledge required for a person to be a 18
food safety supervisor; 19
(g) the exchange of information and reports between local 20
governments and the chief executive about the 21
administration of this Act; 22
(h) the conduct and frequency of audits; 23
(i) fees charged by local governments under this Act. 24
(3) The chief executive may-- 25
(a) make a guideline by adopting another entity's guideline 26
with or without changes; and 27
s 263 150 s 264
Food Bill 2005
(b) amend a guideline when the chief executive considers it 1
appropriate. 2
(4) Before making or amending a guideline, the chief executive 3
must take reasonable steps to allow entities the chief executive 4
considers may have an interest in the proposed guideline or 5
amendment to give the chief executive written submissions 6
about it. 7
8
Example--
9
The chief executive might publish a notice in a newspaper seeking
10
submissions about a proposed guideline.
263 Availability of guideline 11
(1) The chief executive must keep a copy of each guideline, as in 12
force from time to time, available for inspection, free of 13
charge, by local governments and members of the public at-- 14
(a) the department's head office; and 15
(b) other places the chief executive considers appropriate. 16
(2) Also, the chief executive must publish each guideline, as in 17
force from time to time, on the department's web site on the 18
internet. 19
Division 2 Registers 20
264 Chief executive to keep registers 21
(1) The chief executive must keep-- 22
(a) a register of auditors; and 23
(b) a register of food businesses carried on from mobile 24
premises under a licence. 25
(2) The registers may be kept in the way the chief executive 26
considers appropriate, including, for example, in electronic 27
form. 28
s 265 151 s 266
Food Bill 2005
265 Content of registers 1
(1) The register of auditors must contain the following particulars 2
for each auditor-- 3
(a) the auditor's name and contact details; 4
(b) the conditions of the auditor's approval imposed under 5
section 136(1)(b); 6
(c) the term of the approval. 7
(2) The register of food businesses must contain the following 8
particulars for each food business carried on from mobile 9
premises under a licence-- 10
(a) the name of the local government that issued the licence; 11
(b) the licensee's name and contact details; 12
(c) the licence number; 13
(d) the expiry date of the licence; 14
(e) a description of the premises that includes the 15
registration number if the premises are a vehicle that is 16
required to be registered; 17
(f) a description of the food business. 18
(3) The registers also may contain other information the chief 19
executive considers appropriate. 20
266 Availability of registers 21
The chief executive must keep the register of auditors and the 22
register of food businesses reasonably available for 23
inspection, free of charge, by local governments and members 24
of the public. 25
s 267 152 s 268
Food Bill 2005
Part 2 Offences about false or 1
misleading statements or 2
documents 3
267 False or misleading statements 4
(1) A person must not, for an application made under chapter 3, 4 5
or 5, state anything the person knows is false or misleading in 6
a material particular. 7
Maximum penalty--100 penalty units. 8
(2) A person must not state anything to an auditor the person 9
knows is false or misleading in a material particular. 10
Maximum penalty--100 penalty units. 11
(3) A person must not state anything to an authorised person the 12
person knows is false or misleading in a material particular. 13
Maximum penalty--100 penalty units. 14
268 False or misleading documents 15
(1) A person must not, for an application made under chapter 3, 4 16
or 5, give to the chief executive or a local government a 17
document containing information the person knows is false or 18
misleading in a material particular. 19
Maximum penalty--100 penalty units. 20
(2) A person must not give an auditor a document containing 21
information the person knows is false or misleading in a 22
material particular. 23
Maximum penalty--100 penalty units. 24
(3) A person must not give an authorised person a document 25
containing information the person knows is false or 26
misleading in a material particular. 27
Maximum penalty--100 penalty units. 28
(4) Subsections (1) to (3) do not apply to a person if the person, 29
when giving the document-- 30
s 269 153 s 270
Food Bill 2005
(a) tells the chief executive or local government, auditor or 1
authorised person, to the best of the person's ability, 2
how it is false or misleading; and 3
(b) if the person has, or can reasonably obtain, the correct 4
information--gives the correct information to the chief 5
executive, local government, auditor or authorised 6
person. 7
Part 3 Prescribed contaminants in 8
food 9
269 Definition for pt 3 10
In this part-- 11
prescribed contaminant means any of the following 12
prescribed under a regulation-- 13
(a) an antibiotic; 14
(b) a pathogen; 15
(c) another thing that may contaminate food. 16
270 Notice of isolation of prescribed contaminant 17
(1) This section applies to-- 18
(a) a person who carries on a food business if the person-- 19
(i) tests a prescribed food and isolates a prescribed 20
contaminant in the food; or 21
(ii) sends a prescribed food to a place outside the State 22
for testing and is notified that a prescribed 23
contaminant has been isolated in the food as a 24
result of the testing; or 25
(b) a person who tests a prescribed food for a person 26
mentioned in paragraph (a) and isolates a prescribed 27
contaminant in the food. 28
s 270 154 s 270
Food Bill 2005
(2) The person must, unless the person has a reasonable excuse, 1
after isolating the prescribed contaminant or being notified 2
that the contaminant has been isolated-- 3
(a) orally notify the chief executive about the isolation 4
immediately; and 5
(b) give the chief executive notice about the isolation in the 6
approved form within 24 hours after isolating the 7
contaminant or being notified that the contaminant has 8
been isolated. 9
Maximum penalty--100 penalty units. 10
(3) It is not a reasonable excuse for the person not to comply with 11
a requirement under subsection (2) that complying with the 12
requirement might tend to incriminate the person. 13
(4) However, subject to subsection (5), the following is not 14
admissible in evidence against an individual in any civil or 15
criminal proceeding-- 16
(a) information given to the chief executive about the 17
isolation of the prescribed contaminant (primary 18
evidence); 19
(b) any information, or document or other thing, obtained as 20
a direct or indirect result of primary evidence (derived 21
evidence). 22
(5) Subsection (4) does not prevent primary evidence or derived 23
evidence being admitted in evidence-- 24
(a) in criminal proceedings about the falsity or misleading 25
nature of the primary evidence; or 26
(b) if a person to whom a direction is given under section 27
271(2) fails, without a reasonable excuse, to comply 28
with the direction--in a proceeding against the person 29
for an offence, under this Act. 30
(6) In this section-- 31
prescribed food means food prescribed under a regulation for 32
this section. 33
s 271 155 s 272
Food Bill 2005
271 Chief executive may give direction 1
(1) This section applies if, in relation to a food business, a person 2
notifies the chief executive under section 270(2) that a 3
prescribed contaminant has been isolated in food (the 4
contaminated food). 5
(2) The chief executive may give the person who carries on the 6
food business a reasonable direction about identifying the 7
source of, and preventing or minimising the risk to public 8
health or safety caused by, the prescribed contaminant. 9
(3) The direction may be given orally or by notice. 10
(4) If the direction is given orally, the chief executive must as 11
soon as practicable confirm the direction by notice. 12
(5) Without limiting subsection (1), a direction may be about-- 13
(a) the handling of-- 14
(i) the contaminated food; or 15
(ii) food that may have been handled with or near the 16
contaminated food, or at a place or using 17
equipment that may have come into contact with 18
the contaminated food; or 19
(b) the isolation or disposal of food mentioned in paragraph 20
(a); or 21
(c) procedures to be performed to complete identification of 22
the prescribed contaminant. 23
(6) A person who is given a direction under subsection (2) must 24
comply with the direction, unless the person has a reasonable 25
excuse. 26
Maximum penalty--100 penalty units. 27
Part 4 Other matters 28
272 Confidentiality of information 29
(1) This section applies to a person who is, or was-- 30
s 272 156 s 272
Food Bill 2005
(a) the chief executive; or 1
(b) a chief executive officer; or 2
(c) an auditor; or 3
(d) an authorised person; or 4
(e) another person involved in administering this Act or the 5
repealed Act, including, for example, an officer or 6
employee of the department or an employee of a local 7
government. 8
(2) The person must not disclose confidential information gained 9
by the person in administering or performing a function under 10
this Act or the repealed Act. 11
Maximum penalty--50 penalty units. 12
(3) However, the person may disclose confidential information 13
if-- 14
(a) the disclosure is for a purpose under this Act; or 15
(b) the disclosure is for the purpose of ensuring public 16
health or safety and the disclosure is to any of the 17
following-- 18
(i) the State; 19
(ii) a department; 20
(iii) an entity, established under an Act, that deals with 21
matters relating to public health or safety; 22
(iv) a local government; 23
(v) the Commonwealth or another State, or an entity of 24
the Commonwealth or another State; 25
(vi) an entity of New Zealand responsible for the 26
administration of a corresponding law of New 27
Zealand; or 28
(c) the disclosure is with the consent of the person to whom 29
the information relates; or 30
(d) the disclosure is otherwise required or permitted by law. 31
(4) In this section-- 32
s 273 157 s 274
Food Bill 2005
confidential information means information, other than 1
information that is publicly available-- 2
(a) about a person's personal affairs or reputation; or 3
(b) that would be likely to damage the commercial activities 4
of a person to whom the information relates. 5
273 Service of documents 6
(1) If a document is required or permitted under this Act to be 7
given to a person, the document may be given to the person by 8
facsimile transmission directed and sent to-- 9
(a) the last transmission number given to the giver of the 10
document by the person as the facsimile transmission 11
number for service of documents on the person; or 12
(b) the facsimile transmission number operated-- 13
(i) at the address of the person last known to the giver 14
of the document; or 15
(ii) if the person is a corporation, at the corporation's 16
registered office under the Corporations Act; or 17
(iii) if the person is an incorporated association, at the 18
association's registered office under the 19
Associations Incorporation Act 1981. 20
(2) A document given under subsection (1) is taken to have been 21
given on the day the document is transmitted. 22
274 Protecting officials from liability 23
(1) An official is not civilly liable for an act done, or omission 24
made, honestly and without negligence under this Act. 25
(2) If subsection (1) prevents a civil liability attaching to an 26
official, the liability attaches instead to-- 27
(a) if the official is the chief executive officer of a local 28
government, an auditor who is an employee of a local 29
government, an authorised person appointed by the chief 30
executive officer of a local government or a person 31
acting under the direction of that authorised person--the 32
local government; or 33
s 275 158 s 276
Food Bill 2005
(b) if paragraph (a) does not apply--the State. 1
(3) In this section-- 2
official means-- 3
(a) the chief executive; or 4
(b) a chief executive officer; or 5
(c) an authorised person; or 6
(d) a State analyst; or 7
(e) an auditor who is-- 8
(i) an officer or employee of the department; or 9
(ii) a health service employee; or 10
(iii) an employee of a local government; or 11
(f) a person acting under the direction of an authorised 12
person. 13
275 Particular premises taken to be within local government 14
area 15
(1) For this Act, premises that are on the foreshore, or a river, 16
harbour or other waters, and not within a local government 17
area are taken to be within the area of the local government 18
whose area is nearest to the premises. 19
(2) Subsection (1) does not apply to premises of the Australian 20
Defence Force or another country. 21
276 Delegation by chief executive 22
(1) The chief executive may delegate the chief executive's 23
powers under this Act, other than a power under chapter 7, 24
part 4,34 to an appropriately qualified person who is-- 25
(a) a public service officer or employee of the department; 26
or 27
(b) a health service employee. 28
34 Chapter 7 (Monitoring and enforcement), part 4 (Emergency powers of chief
executive)
s 277 159 s 278
Food Bill 2005
(2) In this section-- 1
appropriately qualified includes having the qualifications, 2
experience or standing appropriate to exercise the power. 3
4
Example of standing--
5
If a person is a public service employee of the department, the person's
6
classification level in the department.
277 Approval of forms 7
(1) The chief executive may approve forms for use under this Act. 8
(2) The chief executive officer of a local government may 9
approve forms for use by the local government under this Act. 10
278 Regulation-making power 11
(1) The Governor in Council may make regulations under this 12
Act. 13
(2) A regulation may-- 14
(a) prescribe that the food standards code applies with the 15
changes stated in the regulation; and 16
(b) be about matters relating to audits of accredited food 17
safety programs; and 18
(c) prescribe that a food safety program prepared and 19
maintained under the Food Production (Safety) Act 2000 20
for a type of food business is taken to be an accredited 21
food safety program under this Act for the same or a 22
similar type of food business; and 23
(d) prescribe fees payable under this Act and the matters for 24
which the fees are payable; and 25
(e) impose a penalty of no more than 50 penalty units for 26
contravention of a regulation. 27
(3) A regulation under subsection (2)(a) may state that, for the 28
purpose of applying the food standards code for this Act, a 29
provision or part of a provision of the code does not apply or 30
applies with the changes stated in the regulation. 31
(4) Also, a regulation under subsection (2)(a)-- 32
s 279 160 s 280
Food Bill 2005
(a) expires 1 year after it is made; and 1
(b) is of no effect to the extent it conflicts with-- 2
(i) section 14(2)(b);35 or 3
(ii) the changes to the food standards code stated in 4
schedule 2. 5
(5) If a regulation under subsection (2)(a) prescribes a change in 6
relation to the application of the food standards code for this 7
Act, the Minister may not recommend to the Governor in 8
Council the making of another regulation about the same 9
matter. 10
Chapter 12 Repeal and transitional 11
provisions 12
Part 1 Repeal provision 13
279 Repeal of Food Act 1981 14
The Food Act 1981 No. 44 is repealed. 15
Part 2 Transitional provisions 16
Division 1 Preliminary 17
280 Definitions for pt 2 18
In this part-- 19
35 Section 14 (Meaning of food standards code)
s 281 161 s 283
Food Bill 2005
commencement means the day on which the provision in 1
which the term is used commences. 2
former regulation means the Food Hygiene Regulation 1989. 3
Division 2 Transitional references 4
281 References to repealed Act 5
A reference in an Act or other document to the repealed Act 6
may, if the context permits, be taken as a reference to this Act. 7
Division 3 Other transitional provisions 8
282 Continuation of order under repealed Act, s 8 9
(1) This section applies to an order made under section 8 of the 10
repealed Act and directed to a local government if, 11
immediately before the commencement, the local government 12
has not complied with the order. 13
(2) The local government must comply, or continue to comply, 14
with the order as if the Act had not been repealed. 15
283 Continuation of order under repealed Act, pt 3 16
(1) Subsection (2) applies to an order made by the chief executive 17
under part 3 of the repealed Act if-- 18
(a) the order took effect under section 19B(4) or (5) of the 19
repealed Act before the commencement; and 20
(b) on the commencement, has not ceased to have effect. 21
(2) The order-- 22
(a) is taken to be an order made by the chief executive under 23
chapter 7, part 4 of this Act; and 24
(b) continues to have effect for the period it would have had 25
effect under section 19B(6) of the repealed Act. 26
s 284 162 s 284
Food Bill 2005
(3) Subsection (4) applies to an order made by the chief executive 1
under part 3 of the repealed Act before the commencement 2
if-- 3
(a) the order was required to be served on a person or 4
persons under section 19B(1)(a) of the repealed Act; 5
and 6
(b) on the commencement, the order is not in effect because 7
it has not been served as mentioned in paragraph (a). 8
(4) The order-- 9
(a) is taken to be an order made by the chief executive under 10
chapter 7, part 4 of this Act; and 11
(b) may be served under section 219(1)(a) on the person or 12
persons intended to be bound by it. 13
(5) Subsections (6) and (7) apply to an order made by the chief 14
executive under part 3 of the repealed Act before the 15
commencement if-- 16
(a) notice of the order was required to be published under 17
section 19B(2) of the repealed Act; and 18
(b) on the commencement, the order is not in effect because 19
notice of the order has not been published as mentioned 20
in paragraph (a). 21
(6) The order is taken to be an order made by the chief executive 22
under chapter 7, part 4 of this Act. 23
(7) Notice of the order may be published under section 219(2). 24
284 Application for compensation under repealed Act 25
(1) Subsections (2) and (3) apply to an application for 26
compensation made to the chief executive under section 19C 27
of the repealed Act and not decided before the 28
commencement. 29
(2) The application is taken to be an application for compensation 30
made under section 220. 31
(3) The chief executive may deal with, or continue to deal with, 32
and decide the application under this Act. 33
(4) Subsection (5) applies if-- 34
s 285 163 s 286
Food Bill 2005
(a) immediately before the commencement, a person could 1
have applied to the chief executive for compensation 2
under section 19C of the repealed Act; and 3
(b) the person has not applied before the commencement. 4
(5) The person may apply for compensation under section 220 of 5
this Act as if the order in relation to which the person could 6
have applied for compensation under the repealed Act were an 7
order under chapter 7, part 4 of this Act. 8
285 Continuation of orders under repealed Act, s 21 9
(1) This section applies to an order made under section 21 of the 10
repealed Act before the commencement if, at the 11
commencement-- 12
(a) the order has not been complied with; or 13
(b) anything remains to be done under section 21 in relation 14
to the order. 15
(2) The repealed Act continues to apply to the order or thing, and 16
any person affected by the order or thing, as if this Act had not 17
commenced. 18
286 Appeals 19
(1) Subsection (2) applies if-- 20
(a) a person has appealed to a Magistrates Court under the 21
repealed Act before the commencement against a 22
following decision-- 23
(i) a decision of the chief executive refusing an 24
application for compensation, or deciding an 25
amount of compensation less than the amount 26
sought by the applicant, under section 19C of the 27
repealed Act; 28
(ii) a decision of an authorised officer under section 29
21(6) of the repealed Act refusing to give the 30
person a certificate under section 21(2) of the 31
repealed Act; and 32
(b) the appeal has not been decided before the 33
commencement. 34
s 287 164 s 287
Food Bill 2005
(2) The Magistrates Court may hear, or continue to hear, and 1
decide the appeal under the repealed Act as if this Act had not 2
commenced. 3
(3) Subsection (4) applies if-- 4
(a) immediately before the commencement a person could 5
have appealed to a Magistrates Court under the repealed 6
Act against a decision mentioned in subsection (1)(a); 7
and 8
(b) the person has not appealed before the commencement. 9
(4) The person may appeal, and the Magistrates Court may hear 10
and decide the appeal, under the repealed Act as if this Act 11
had not commenced. 12
(5) For giving effect to its decision under subsection (2) or (4), 13
the Magistrates Court may make the orders it considers 14
necessary having regard to the provisions of this Act. 15
287 Dealing with articles seized under repealed Act 16
(1) Subsection (2) applies if-- 17
(a) a person has applied to a Magistrates Court under 18
section 33(1) of the repealed Act for an order directing 19
an authorised officer to release an article seized by the 20
officer; and 21
(b) the application has not been decided before the 22
commencement. 23
(2) The Magistrates Court may hear, or continue to hear, and 24
decide the application under the repealed Act as if this Act 25
had not commenced. 26
(3) Subsection (4) applies if-- 27
(a) immediately before the commencement a person could 28
have applied to a Magistrates Court under section 33(1) 29
of the repealed Act for an order mentioned in subsection 30
(1)(a); and 31
(b) the person has not applied before the commencement. 32
s 288 165 s 289
Food Bill 2005
(4) The person may apply, and the Magistrates Court may hear 1
and decide the application, under the repealed Act as if this 2
Act had not commenced. 3
(5) In deciding the application, the Magistrates Court may make 4
any decision the court could have made in relation to the 5
application before the commencement. 6
(6) In dealing with an article in relation to which an application 7
under section 33(1) of the repealed Act was or could have 8
been made before the commencement, section 33(7) to (9) of 9
the repealed Act continues to apply to the article. 10
288 Direction about isolation of prescribed pathogen 11
(1) This section applies if, before the commencement, the chief 12
executive-- 13
(a) was notified under the Food Standards Regulation 1994, 14
section 15(3)(a) or (b), that a prescribed pathogen has 15
been isolated in food; and 16
(b) has not given a direction to a person under section 16 of 17
the regulation about the isolation of the pathogen. 18
(2) The chief executive may give the person who carries on the 19
food business in relation to which the prescribed pathogen 20
was isolated a direction under section 271 about the pathogen. 21
(3) For giving a direction mentioned in subsection (2)-- 22
(a) the food in relation to which the prescribed pathogen 23
was isolated is taken to be contaminated food; and 24
(b) the prescribed pathogen is taken to be a prescribed 25
contaminant; and 26
(c) the chief executive is taken to have been notified under 27
section 270(2) that a prescribed contaminant has been 28
isolated in contaminated food. 29
289 Continuation of particular licences under former 30
regulation 31
(1) This section applies to a licence issued under section 7 of the 32
former regulation if the licence-- 33
s 290 166 s 290
Food Bill 2005
(a) is for a business that is a licensable food business; and 1
(b) immediately before the commencement, is in force or is 2
suspended under the former regulation. 3
(2) The licence is taken to be a licence to carry on the licensable 4
food business under this Act. 5
(3) If, immediately before the commencement, the licence is in 6
force, it remains in force unless sooner cancelled or 7
suspended for the period it would have been in force under the 8
former regulation. 9
(4) If, immediately before the commencement, the licence is 10
suspended-- 11
(a) the period of the suspension under the former regulation 12
continues; and 13
(b) the licence remains in force after the suspension ends, 14
unless sooner cancelled or again suspended, only for the 15
period it would have remained in force under the 16
regulation. 17
(5) For this Act-- 18
(a) a condition endorsed on or attached to the licence under 19
section 7(9)(c)(i) of the former regulation immediately 20
before the commencement is taken to be a condition 21
stated in the licence; and 22
(b) the premises, other place or vehicle registered under 23
section 9 of the former regulation immediately before 24
the commencement and relating to the licence is taken to 25
be-- 26
(i) stated in the licence; and 27
(ii) premises from which the licensee may carry 28
on the licensable food business. 29
290 Lapsing of licences under former regulation 30
(1) This section applies to a licence issued under section 7 of the 31
former regulation, other than a licence to which section 289 32
applies, if the licence is in force or suspended under the 33
s 291 167 s 292
Food Bill 2005
regulation immediately before the commencement. 1
(2) The licence lapses on the commencement. 2
291 Application for particular licence under former regulation 3
(1) This section applies to an application for a licence made to a 4
local government under section 7 of the former regulation if-- 5
(a) the licence is for a business that is a licensable food 6
business; and 7
(b) the application has not been decided immediately before 8
the commencement. 9
(2) Despite sections 52, 53 and 85, the application is taken to be 10
an application for a licence to carry on the licensable food 11
business under this Act. 12
(3) For dealing with the application under this Act, the 13
application is taken to have been received by the local 14
government on the commencement. 15
292 Application for renewal of particular licence under former 16
regulation 17
(1) This section applies to an application for renewal of a licence 18
made to a local government under section 7 of the former 19
regulation if-- 20
(a) the licence is for a business that is a licensable food 21
business; and 22
(b) the application has not been decided immediately before 23
the commencement. 24
(2) Despite section 85, the application is taken to be an 25
application for renewal of a licence to carry on the licensable 26
food business under this Act. 27
(3) For dealing with the application under this Act, the 28
application is taken to have been received by the local 29
government on the commencement. 30
s 293 168 s 295
Food Bill 2005
293 Lapsing of other applications relating to licences under 1
former regulation 2
(1) This section applies to each of the following applications 3
made to a local government under section 7 of the former 4
regulation if the application has not been decided before the 5
commencement-- 6
(a) an application for a licence, other than an application to 7
which section 291 applies; 8
(b) an application for renewal of a licence, other than an 9
application to which section 292 applies. 10
(2) The application lapses and the following fees paid by the 11
applicant to the local government for the application must be 12
refunded in full to the applicant by the local government-- 13
(a) the application fee; 14
(b) the licence fee; 15
(c) the renewal fee. 16
294 Lapsing of registration under former regulation 17
(1) This section applies to a certificate of registration, renewal of 18
registration or provisional registration in force, or suspended, 19
under the former regulation immediately before the 20
commencement. 21
(2) The certificate of registration, renewal of registration or 22
provisional registration lapses on the commencement. 23
295 Lapsing of applications relating to registration under 24
former regulation 25
(1) This section applies to each of the following applications 26
made to a local government under section 9 or 10 of the 27
former regulation if the application has not been decided 28
before the commencement-- 29
(a) an application for registration of any premises, other 30
place or vehicle; 31
(b) an application for renewal of a registration; 32
(c) an application for transfer of a registration. 33
s 296 169 s 297
Food Bill 2005
(2) The application lapses and the following fees paid by the 1
applicant to the local government for the application must be 2
refunded in full to the applicant by the local government-- 3
(a) the application fee; 4
(b) the registration fee; 5
(c) the renewal fee. 6
296 Offences 7
(1) A proceeding for an offence against a provision of the former 8
legislation may be started or continued, and the provisions of 9
the legislation that are necessary or convenient to be used in 10
relation to the proceeding continue to apply as if this Act had 11
not commenced. 12
(2) For subsection (1), the Acts Interpretation Act 1954, section 13
2036 applies, but does not limit the subsection. 14
(3) In this section-- 15
former legislation means the repealed Act, the former 16
regulation or the Food Standards Regulation 1994. 17
Chapter 13 Amendment of Act 18
297 Act amended in sch 1 19
Schedule 1 amends the Act mentioned in it. 20
36 Acts Interpretation Act 1954, section 20 (Saving of operation of repealed Act etc.)
170
Food Bill 2005
Schedule 1 Amendment of Act 1
section 297 2
Food Production (Safety) Act 2000 3
1 Section 5, heading `1981'-- 4
omit, insert-- 5
`2005'. 6
2 Section 5, `1981'-- 7
omit, insert-- 8
`2005'. 9
3 Section 27(1)(c), `1981'-- 10
omit, insert-- 11
`2005'. 12
171
Food Bill 2005
Schedule 2 Changes to food standards 1
code 2
section 14(2)(a)(i) 3
1 The editorial notes in the code do not apply. 4
2 The definition appropriate enforcement agency in clause 1 of 5
standard 3.1.1 is replaced with the following definition-- 6
`appropriate enforcement agency means-- 7
(a) in relation to a food business--the local government in 8
whose area the food premises of the business are 9
situated; or 10
(b) in relation to food premises--the local government in 11
whose area the premises are situated.'. 12
3 In the definition food premises in clause 1 of standard 3.1.1, 13
the words `, pontoons and any other place declared by the 14
relevant authority to be premises under the Food Act' are 15
replaced with the words `and pontoons'. 16
4 The following definitions are included in clause 1 of standard 17
3.1.1-- 18
`local government means a local government as defined in 19
section 36 of the Acts Interpretation Act 1954 of Queensland. 20
`relevant authority means the chief executive of the 21
Queensland department of government in which the Act is 22
administered.'. 23
5 The definition primary food production in clause 1 of 24
standard 3.1.1 is replaced with the following definition-- 25
`primary food production means production of primary 26
produce within the meaning of section 11 of the Food 27
Production (Safety) Act 2000 of Queensland.'. 28
6 The definition sell in clause 1 of standard 3.1.1 is replaced 29
with the following definition-- 30
`sell has the same meaning as it has in the Act.'. 31
172
Food Bill 2005
Schedule 2 (continued)
7 In clause 2(4)(c) of standard 3.1.1, the words `another Act' 1
are replaced with the words `an Act'. 2
173
Food Bill 2005
Schedule 3 Dictionary 1
section 10 2
accepted representations-- 3
(a) for chapter 3, part 6--see section 80(2); and 4
(b) for chapter 4, part 5--see section 119(2); and 5
(c) for chapter 5, part 5--see section 146(2). 6
accreditation, of a food safety program, means accreditation 7
of the program under this Act. 8
accredited, in relation to a food safety program, means 9
accredited under this Act. 10
administering executive means-- 11
(a) for a person appointed as an authorised person by the 12
chief executive--the chief executive; or 13
(b) for a person appointed as an authorised person by a chief 14
executive officer--the chief executive officer; or 15
(c) for a person appointed as an authorised person by 2 or 16
more chief executive officers--the chief executive 17
officers jointly. 18
advertisement means any of the following things used or 19
apparently used to promote, directly or indirectly, the sale of 20
food-- 21
(a) words, whether written or spoken; 22
(b) a pictorial representation or design; 23
(c) any other type of representation. 24
analysis, of food or another thing, includes an examination or 25
testing of the food or thing. 26
appropriate auditor, for a food business, means an auditor 27
approved under this Act to conduct audits of food safety 28
programs for that type of food business. 29
approval, in relation to an auditor, means an approval issued 30
under chapter 5. 31
174
Food Bill 2005
Schedule 3 (continued)
approved form means-- 1
(a) for chapters 3 and 4--a form approved by a chief 2
executive officer under section 277(2); or 3
(b) for chapters 5 and 11--a form approved by the chief 4
executive under section 277(1). 5
approved laboratory means a laboratory approved by the 6
chief executive under section 231. 7
audit means a compliance audit, check audit or 8
nonconformance audit. 9
auditor means a person approved as an auditor under chapter 10
5. 11
authorised person means a person appointed as an authorised 12
person under section 168. 13
certificate of analysis, for a thing, means a certificate of 14
analysis completed for the thing under chapter 8, part 2. 15
check audit, of an accredited food safety program, means an 16
audit of the program, other than a compliance or 17
nonconformance audit, conducted-- 18
(a) by an auditor who is an employee of the department 19
after a compliance or nonconformance audit of the 20
program has been conducted by another auditor; and 21
(b) to ensure the other auditor is conducting compliance or 22
nonconformance audits appropriately. 23
chief executive officer means the chief executive officer of a 24
local government. 25
commencement, for chapter 12, part 2, see section 280. 26
compensation decision see section 241(3). 27
compliance audit, of an accredited food safety program, 28
means an audit of the program by an auditor to ensure the 29
carrying on of the food business to which the program relates 30
complies with the program and the food standards code, 31
175
Food Bill 2005
Schedule 3 (continued)
standards 3.2.2 and 3.2.3.37 1
contact details, of a person, means the person's telephone 2
number or facsimile number. 3
conviction means a finding of guilt, or the acceptance of a 4
plea of guilty, by a court, whether or not a conviction is 5
recorded. 6
corresponding law means a law applying, or that applied, in 7
the Commonwealth, another State, a Territory or a foreign 8
country that provides, or provided, for the same matter as this 9
Act or a provision of this Act. 10
decision maker see section 244(1)(a). 11
document certification requirement see section 199(5). 12
document production requirement see section 199(6). 13
equipment means the whole or part of-- 14
(a) any utensil, machinery, instrument, device, apparatus or 15
appliance used, or designed or intended for use, in 16
connection with the handling of food; or 17
(b) any substance, utensil, machinery, instrument, device, 18
apparatus or appliance used, or designed or intended for 19
use, in cleaning anything mentioned in paragraph (a). 20
executive officer, of a corporation, means a person who is 21
concerned with, or takes part in, the corporation's 22
management, whether or not the person is a director or the 23
person's position is given the name of executive officer. 24
exercised all due diligence includes took all reasonable 25
precautions. 26
first local government, in relation to the carrying on of a 27
licensable food business by a licensee from mobile premises, 28
means the local government that issued the licence to carry on 29
the business. 30
37 Food Standards Code, standards 3.2.2 (Food Safety Practices and General
Requirements) and 3.2.3 (Food premises and equipment)
176
Food Bill 2005
Schedule 3 (continued)
fixed premises, for a food business, means a building or other 1
structure, or part of a building or other structure, that has a 2
permanent address. 3
food see section 12. 4
food business see section 13. 5
food safety hazard, in relation to a food business, means a 6
thing or a situation that has the potential to cause food handled 7
or sold in connection with the food business to be unsafe or 8
unsuitable. 9
food safety program means a documented program that 10
identifies and controls food safety hazards in the handling of 11
food in a food business. 12
food safety supervisor, for a food business, means a person 13
who-- 14
(a) knows how to recognise, prevent and alleviate food 15
safety hazards of the food business; and 16
(b) has skills and knowledge in matters relating to food 17
safety relevant to the food business; and 18
(c) has the authority to supervise and give directions about 19
matters relating to food safety to persons who handle 20
food in the food business. 21
food standards code see section 14. 22
forfeiture decision see section 241(2). 23
former regulation, for chapter 12, part 2, see section 280. 24
handling, of food, see section 15. 25
health service employee means a health service employee 26
under the Health Services Act 1991. 27
holder-- 28
(a) of an accredited food safety program--means the 29
person to whom the accredited program is given under 30
this Act; or 31
(b) of a licence--means the person to whom the licence is 32
issued under this Act. 33
177
Food Bill 2005
Schedule 3 (continued)
improvement notice see section 209(2). 1
incorporated association means an incorporated association 2
under the Associations Incorporation Act 1981. 3
information notice, for a decision of the chief executive, a 4
local government or chief executive officer of a local 5
government, means a notice stating all of the following-- 6
(a) the decision; 7
(b) the reasons for the decision; 8
(c) that the person to whom the notice is given may have the 9
decision reviewed within 28 days after the person 10
receives the notice; 11
(d) how the person may have the decision reviewed; 12
(e) if the decision is a decision of a local government that a 13
licence be cancelled or suspended--a direction to the 14
person to return the licence to the local government 15
within 7 days after receiving the notice. 16
label includes any tag, brand, mark, statement in writing, 17
representation, design or other descriptive matter on or 18
attached to or used or displayed in connection with or 19
accompanying food or a package of food. 20
licence means a licence under this Act to carry on a licensable 21
food business, and includes a provisional licence. 22
licensable food business see section 48. 23
licensee means the holder of a licence. 24
management committee, of an incorporated association, 25
means the association's management committee formed under 26
the Associations Incorporation Act 1981. 27
manufacture, in relation to food, see section 16. 28
meal means food that-- 29
(a) is, or is intended to be, eaten by a person sitting at a 30
table, or a fixed structure used as a table, with cutlery; 31
and 32
178
Food Bill 2005
Schedule 3 (continued)
(b) is of adequate substance as to be ordinarily accepted as a 1
meal. 2
mobile premises, for a food business, means premises that are 3
a vehicle from which a person sells unpackaged food by retail. 4
motor vehicle means a vehicle propelled by a motor that 5
forms a part of the vehicle, and includes a trailer or caravan 6
attached to the vehicle. 7
nonconformance audit, of an accredited food safety program, 8
means an audit of the program by an auditor to check that any 9
noncompliance with the program or the food standards code, 10
standards 3.2.2 and 3.2.3,38 identified in an audit has been 11
remedied. 12
non-profit organisation means an organisation that-- 13
(a) is not carried on for the profit or gain of its individual 14
members; and 15
(b) is engaged in activities for a charitable, cultural, 16
educational, political, social welfare, sporting or 17
recreational purpose. 18
notice means a written notice. 19
off-site catering see section 17. 20
on-site catering see section 18. 21
original decision see section 236(1). 22
package includes a container and wrapper in or by which food 23
intended for sale is wholly or partly encased, covered, 24
enclosed, contained or packed and, if food is carried or sold or 25
intended to be carried or sold in more than 1 package, 26
includes each of the packages. 27
personal details requirement see section 197(5). 28
place includes premises and vacant land. 29
place of seizure see section 188. 30
38 Food Standards Code, standards 3.2.2 (Food Safety Practices and General
Requirements) and 3.2.3 (Food premises and equipment)
179
Food Bill 2005
Schedule 3 (continued)
potentially hazardous food means food that must be kept at a 1
particular temperature-- 2
(a) to minimise the growth of pathogenic micro-organisms 3
that may be in the food; or 4
(b) to stop the formation of toxins in the food. 5
premises includes-- 6
(a) a building or other structure; and 7
(b) a part of a building or other structure; and 8
(c) land where a building or other structure is situated; and 9
(d) a vehicle. 10
prescribed contaminant, for chapter 11, part 3, see section 11
269. 12
proposed action-- 13
(a) for chapter 3, part 6--see section 79(3)(a); and 14
(b) for chapter 4, part 5--see section 118(2)(a); and 15
(c) for chapter 5, part 5--see section 145(2)(a). 16
proprietor, of a food business, means-- 17
(a) the person carrying on the food business; or 18
(b) if the person mentioned in paragraph (a) can not be 19
identified, the person in charge of the food business. 20
provisional licence means a provisional licence issued under 21
section 64. 22
recall order means an order under chapter 7, part 4, requiring 23
the recall or disposal, or both, of food. 24
relevant offence means-- 25
(a) an indictable offence relating to the sale of unsafe or 26
unsuitable food, other than an indictable offence that is 27
taken to be a simple offence under the Criminal Code, 28
section 659;39 or 29
39 Criminal Code, section 659 (Effect of summary conviction for indictable offences)
180
Food Bill 2005
Schedule 3 (continued)
(b) an offence against this Act or the Food Act 1981; or 1
(c) an offence against a corresponding law. 2
repealed Act means the Food Act 1981. 3
review decision see section 239(1). 4
reviewer see section 237(3). 5
review notice see section 239(2). 6
second local government, in relation to the carrying on of a 7
licensable food business by a licensee from mobile premises, 8
means a local government other than the local government 9
that issued the licence to carry on the business. 10
sell see section 19. 11
serve, in relation to food, means set the food out or present the 12
food for consumption. 13
ship means any kind of vessel or boat used to carry anything 14
or any person by water. 15
show cause notice-- 16
(a) for chapter 3, part 6--see section 79(2); and 17
(b) for chapter 4, part 5--see section 118(1); and 18
(c) for chapter 5, part 5--see section 145(1). 19
show cause period-- 20
(a) for chapter 3, part 6--see section 79(3)(e); and 21
(b) for chapter 4, part 5--see section 118(2)(d); and 22
(c) for chapter 5, part 5--see section 145(2)(e). 23
spent conviction means a conviction-- 24
(a) for which the rehabilitation period under the Criminal 25
Law (Rehabilitation of Offenders) Act 1986 has expired 26
under that Act; and 27
181
Food Bill 2005
Schedule 3 (continued)
(b) that is not revived as prescribed by section 1140 of that 1
Act. 2
State analyst means a person appointed as a State analyst 3
under section 227. 4
temporary premises, for a food business, means premises 5
other than fixed premises or mobile premises, and includes, 6
for example, a stall or a tent. 7
unpackaged food means all food, other than food that is 8
sealed in a package at a place other than the food business that 9
sells it by retail in that package. 10
unsafe see section 20. 11
unsuitable see section 21. 12
vehicle means anything, whether operational or not, used to 13
carry anything or any person by land, water or air. 14
© State of Queensland 2005
40 Criminal Law (Rehabilitation of Offenders) Act 1986, section 11 (Revival of
convictions)
[Index] [Search] [Download] [Related Items] [Help]