An Act to regulate the handling of food for sale and the sale of food and to provide for the application of the Australia New Zealand Food Standards Code in New South Wales; to repeal the Food Act 1989; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act is the Food Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Objects of Act
The objects of this Act include the following:(a) to ensure food for sale is both safe and suitable for human consumption,(b) to prevent misleading conduct in connection with the sale of food,(c) to provide for the application in this State of the Food Standards Code.
4 Definitions
(1) In this Act:advertisement means:(a) any words, whether written or spoken, or(b) any pictorial representation or design, orused or apparently used to promote, directly or indirectly, the sale of food.(c) any other representation by any means at all,analysis includes any examination or testing of food or any other thing.animal includes an amphibian, bird, crustacean, fish, mollusc or reptile.appropriate enforcement agency means, in relation to the provision in which the expression is used, the enforcement agency prescribed by the regulations for the purposes of that provision.approved analyst means a person approved under Division 4 of Part 6.approved form means the form approved from time to time by the Food Authority.approved laboratory means a laboratory approved under Division 3 of Part 6.has the same meaning as in the Search Warrants Act 1985.means a person appointed under Division 3 of Part 9.Chief Executive Officer means the person employed in the Public Service as the Chief Executive Officer of the Food Authority.Commonwealth Food Authority has the same meaning as Authority in the Food Standards Australia New Zealand Act 1991 of the Commonwealth.enforcement agency means:(a) the Food Authority, or(b) a relevant body appointed as an enforcement agency under Division 2 of Part 9, or(c) any person or body, or a person or body within a class of persons or bodies, prescribed by the regulations for the purposes of this definition (other than a relevant body within the meaning of Division 2 of Part 9).equipment means the whole or part of:(a) any utensil, machinery, instrument, device, apparatus or appliance that is used, or that is designed or intended for use, in or in connection with the handling of food, or(b) any substance, utensil, machinery, instrument, device, apparatus or appliance that is used, or that is designed or intended for use, in cleaning anything referred to in paragraph (a).examine includes weigh, count, test or measure.exercise a function includes perform a duty.food has the meaning given by section 5.Food Authority means the NSW Food Authority constituted under Part 9.Food Authority Fund means the fund established under section 117A.food business has the meaning given by section 6.food safety auditor means a member of staff of the Food Authority authorised under Division 1 of Part 7, or another person approved under that Division, to be a food safety auditor.food safety scheme means a food safety scheme prescribed by the regulations in accordance with Part 8.Food Safety Standards means the standards contained in Chapter 3 of the Food Standards Code.Food Standards Code means the Australia New Zealand Food Standards Code as defined in the Food Standards Australia New Zealand Act 1991 of the Commonwealth, as modified in accordance with regulations referred to in section 140 or 141.food transport vehicle means a vehicle used for the transport of food for sale.Forum means the Food Regulation Forum established under Division 3A of Part 9.function includes a power, authority or duty.handling of food includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or displaying of food.improvement notice means an improvement notice issued under Part 5.label includes any tag, brand, mark or statement in writing or any representation or design or other descriptive matter on or attached to or used or displayed in connection with or accompanying any food or package.package includes any container or wrapper in or by which food intended for sale is wholly or partly encased, covered, enclosed, contained or packed and, in the case of food carried or sold or intended to be carried or sold in more than one package, includes every such package.premises includes:(a) land (whether or not vacant), or(b) the whole or any part of a building, tent, stall or other structure (whether of a permanent or temporary nature), or(c) a pontoon, or(d) a vehicle (other than a food transport vehicle while it is engaged in the transport of food).primary food production has the meaning given by section 7.private corporation means a corporation within the meaning of the Corporations Act 2001 of the Commonwealth.private subsidiary corporation means a private corporation in which the Food Authority has a controlling interest.prohibition order means a prohibition order made under Part 5.proprietor of a food business means:(a) the person carrying on the food business, or(b) if that person cannot be identified the person in charge of the food business.recall order means an order under Part 3 requiring the recall or disposal, or both, of any food.register of offences means the register of offences kept under Part 10A.register of penalty notices means the register of penalty notices kept under Part 10A.sell includes:(a) barter, offer or attempt to sell, or(b) receive for sale, or(c) have in possession for sale, or(d) display for sale, or(e) cause or permit to be sold or offered for sale, or(f) send, forward or deliver for sale, or(g) dispose of by any method for valuable consideration, or(h) dispose of to an agent for sale on consignment, or(i) provide under a contract of service, or(j) supply food as a meal or part of a meal to an employee, in accordance with a term of an award governing the employment of the employee or a term of the employee’s contract of service, for consumption by the employee at the employee’s place of work, or(k) dispose of by way of raffle, lottery or other game of chance, or(l) offer as a prize or reward, or(m) give away for the purpose of advertisement or in furtherance of trade or business, or(n) supply food under a contract (whether or not the contract is made with the consumer of the food), together with accommodation, service or entertainment, in consideration of an inclusive charge for the food supplied and the accommodation, service or entertainment, or(o) supply food (whether or not for consideration) in the course of providing services to patients in public hospitals (within the meaning of the Health Services Act 1997) or inmates in correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999), or(p) sell for the purpose of resale.unsafe has the meaning given by section 8.unsuitable has the meaning given by section 9.vehicle means any means of transport, whether self-propelled or not, and whether used on land or sea or in the air.(2) For the purposes of this Act, food or equipment that is displayed for the purpose of being offered as a prize or reward or given away for the purpose of advertisement or in the furtherance of trade or business is taken to have been displayed for sale by the owner of the food or equipment.(3) Notes included in this Act do not form part of this Act.s 4: Am 2004 No 16, Sch 1 [2] [3]; 2007 No 47, Sch 1 [1] [2]; 2008 No 5, Sch 1 [1]; 2009 No 96, Sch 8 [1] [2]; 2013 No 95, Sch 2.63 [1]; 2014 No 26, Sch 3.2 [1] [2]; 2015 No 58, Sch 3.35 [1] [2].
5 Meaning of “food”
(1) In this Act, food includes:(a) any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared), or(b) any substance or thing of a kind used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a), or(c) any substance used in preparing a substance or thing referred to in paragraph (a) (other than a substance used in preparing a living thing) if it comes into direct contact with the substance or thing referred to in that paragraph, such as a processing aid, or(d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum, orwhether or not the substance, thing or chewing gum is in a condition fit for human consumption.(e) any substance or thing declared to be a food under a declaration in force under section 6 of the Food Standards Australia New Zealand Act 1991 of the Commonwealth,(2) However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth.(3) To avoid doubt, food may include live animals and plants.s 5: Am 2008 No 5, Sch 1 [2].
6 Meaning of “food business”
In this Act, food business means a business, enterprise or activity that involves:(a) the handling of food intended for sale, orregardless of whether the business, enterprise or activity concerned is of a commercial, charitable or community nature or whether it involves the handling or sale of food on one occasion only.(b) the sale of food,s 6: Am 2004 No 16, Sch 1 [4].
7 Meaning of “primary food production”
(1) In this Act, primary food production means the growing, raising, cultivation, picking, harvesting, collection or catching of food, and includes the following:(a) the transportation or delivery of food on, from or between the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught,(b) the packing, treating (for example, washing) or storing of food on the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught,(c) the storage of food in a silo that is not connected with a food processing operation and the transportation or delivery of food from, between or to such silos,(d) the sale of livestock at saleyards and the transportation of livestock to and from saleyards,(e) any other food production activity that is regulated by or under an Act prescribed by the regulations for the purposes of this subsection.(2) However, primary food production does not include:(a) any process involving the substantial transformation of food (for example, manufacturing or canning), regardless of whether the process is carried out on the premises on which the food was grown, cultivated, picked, harvested, collected or caught, or(b) the sale or service of food directly to the public, or(c) any other food production activity that is prescribed by the regulations for the purposes of this subsection.Note—Section 7 (2) (c) enables regulations to be made prescribing food production activities that are not included in the definition of primary food production. Such a regulation might be made, for example, to prescribe a food production activity in relation to which significant and unmanaged food safety hazards have been identified.
8 Meaning of “unsafe” food
(1) For the purposes of this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming:(a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use, and(b) nothing happened to it after that particular time and before being consumed by the person that would prevent its being used for its reasonable intended use, and(c) it was consumed by the person according to its reasonable intended use.(2) However, food is not unsafe for the purposes of this Act merely because its inherent nutritional or chemical properties cause, or its inherent nature causes, adverse reactions only in persons with allergies or sensitivities that are not common to the majority of persons.(3) In subsection (1), processes include processes involving storage and preparation.
9 Meaning of “unsuitable” food
(1) For the purposes of this Act, food is unsuitable if it is food that:(a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use, or(b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use, or(c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption, or(d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.(2) However, food is not unsuitable for the purposes of this Act merely because:(a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical, or(b) when it is sold for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code, or(c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code, or(d) it contains any matter or substance that is permitted by the Food Standards Code.(3) In this section, slaughter of an animal includes the killing of an animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food.
10 (Repealed)
s 10: Rep 2004 No 16, Sch 1 [5].
11 Application of Act to water suppliers
(1) The following provisions of this Act do not apply to a water supplier in respect of the supply of water for human consumption through a reticulated water system:(a) sections 13, 15, 16 (1), 17 (1), 18, 19, 20 and 21 (but only to the extent to which section 21 requires compliance with the requirements of the Food Safety Standards),(b) Parts 5, 7 and 8.(2) In this section, water supplier means:(a) a body that is constituted by or under an Act and that has as or as one of its functions the supply of water for human consumption, or(b) a person who is employed or engaged by such a body to supply water for human consumption, or(c) any body or person prescribed by the regulations for the purposes of this section.
12 Relationship to other laws
(1) If, by or under any other Act (whether passed before or after the commencement of this section) any provision is made in relation to food for sale, being a provision that is inconsistent with the provisions of this Act or the regulations under this Act, the provisions of this Act or the regulations prevail to the extent of the inconsistency.(2) Any statutory rule relating to any of the following matters must be submitted to the Minister before being made:(a) the wholesomeness, cleanliness or freedom from contamination of food,(b) the composition of, and standards for, food,(c) the cleanliness of vehicles, premises or places in which food is sold or handled for sale.(3) No such statutory rule may be made unless the Minister approves of such of its provisions as relate to any of those matters.(4) Failure to comply with any provision of this section does not affect the validity of a statutory rule.(5) In this section, statutory rule means a regulation, by-law, rule or ordinance made, or required by law to be approved or confirmed, by the Governor or made by a council.
Part 2 Offences relating to food
Division 1 Serious offences relating to food
13 Handling of food in unsafe manner
(1) A person must not handle food intended for sale in a manner that the person knows will render, or is likely to render, the food unsafe.Maximum penalty: 1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation.(2) A person must not handle food intended for sale in a manner that the person ought reasonably to know is likely to render the food unsafe.Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 13: Am 2012 No 97, Sch 1.13 [1].
14 Sale of unsafe food
(1) A person must not sell food that the person knows is unsafe.Maximum penalty: 1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation.(2) A person must not sell food that the person ought reasonably to know is unsafe.Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 14: Am 2012 No 97, Sch 1.13 [2].
15 False description of food
(1) A person must not cause food intended for sale to be falsely described if the person knows that a consumer of the food who relies on the description will, or is likely to, suffer physical harm.Maximum penalty: 1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation.Note—Examples of food that is falsely described are contained in section 22.(2) A person must not cause food intended for sale to be falsely described if the person ought reasonably to know that a consumer of the food who relies on the description is likely to suffer physical harm.Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.Note—Examples of food that is falsely described are contained in section 22.(3) A person must not sell food that the person knows is falsely described and will, or is likely to, cause physical harm to a consumer of the food who relies on the description.Maximum penalty: 1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation.Note—Examples of food that is falsely described are contained in section 22.(4) A person must not sell food that the person ought reasonably to know is falsely described and is likely to cause physical harm to a consumer of the food who relies on the description.Maximum penalty: 750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation.Note—Examples of food that is falsely described are contained in section 22.Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 15: Am 2012 No 97, Sch 1.13 [3].
Division 2 Other offences relating to food
16 Handling and sale of unsafe food
(1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsafe.(2) A person must not sell food that is unsafe.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 16: Am 2012 No 97, Sch 1.13 [4].
17 Handling and sale of unsuitable food
(1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsuitable.(2) A person must not sell food that is unsuitable.(3) For the purposes of this section, it is immaterial whether the food concerned is safe.Maximum penalty: 400 penalty units in the case of an individual and 2,000 penalty units in the case of a corporation.Note—An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 17: Am 2012 No 97, Sch 1.13 [5].
18 Misleading conduct relating to sale of food
(1) A person must not, in the course of carrying on a food business, engage in conduct that is misleading or deceptive or is likely to mislead or deceive in relation to the advertising, packaging or labelling of food intended for sale or the sale of food.(2) A person must not, for the purpose of effecting or promoting the sale of any food in the course of carrying on a food business, cause the food to be advertised, packaged or labelled in a way that falsely describes the food.Note—Examples of food that is falsely described are contained in section 22.(3) A person must not, in the course of carrying on a food business, sell food that is packaged or labelled in a way that falsely describes the food.Note—Examples of food that is falsely described are contained in section 22.(4) Nothing in subsection (2) or (3) limits the generality of subsection (1).Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.Note—An offence against subsection (1), (2) or (3) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 18: Am 2012 No 97, Sch 1.13 [6].
19 Sale of food not complying with purchaser’s demand
(1) A person must not, in the course of carrying on a food business, supply food by way of sale if the food is not of the nature or substance demanded by the purchaser.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.Note—An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.(2) For the purposes of this section, it is immaterial whether the food concerned is safe.s 19: Am 2012 No 97, Sch 1.13 [7].
20 Sale of unfit equipment or packaging or labelling material
(1) A person must not sell equipment that if used for the purposes for which it was designed or intended to be used:(a) would render or be likely to render food unsafe, or(b) would put other equipment, or would be likely to put other equipment, in such a condition that, if the other equipment were used for the purposes for which it was designed or intended to be used, it would render, or be likely to render, food unsafe.(2) A person must not sell packaging or labelling material that if used for the purposes for which it was designed or intended to be used would render or be likely to render food unsafe.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 20: Am 2012 No 97, Sch 1.13 [8].
21 Compliance with Food Standards Code
(1) A person must comply with any requirement imposed on the person by a provision of the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale.(2) A person must not sell any food that does not comply with a requirement of the Food Standards Code that relates to the food.(3) A person must not sell or advertise for sale any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code.(4) A person must not sell or advertise for sale any food in a manner that contravenes a provision of the Food Standards Code.(5) This section does not require compliance with a provision of the Food Standards Code in relation to the conduct of a food business that is primary food production unless a food safety scheme provides that the provision applies to the food business or to a class of food businesses that includes the food business concerned.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.Note—An offence against subsection (1)–(4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 21: Am 2004 No 16, Sch 1 [6]; 2012 No 97, Sch 1.13 [9].
22 False descriptions of food
(1) For the purposes of this Part, food that is falsely described includes food to which any one or more of the following paragraphs applies:(a) the food is represented as being of a particular nature or substance for which there is a prescribed standard under the Food Standards Code and the food does not comply with that prescribed standard,(b) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance in a quantity or proportion that significantly diminishes its food value or nutritive properties as compared with food of the represented nature or substance,(c) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance of lower commercial value than food of the represented nature or substance,(d) the food is represented as being of a particular nature or substance and a constituent of the food has been wholly or partly removed so that its properties are diminished as compared with food of the represented nature or substance,(e) any word, statement, device or design used in the packaging or labelling of the food, or in an advertisement for the food, would create a false impression as to the nature or substance of the food, or the commercial value of the food, in the mind of a reasonable person,(f) the food is not of the nature or substance represented by the manner in which it is packaged, labelled or offered for sale.(2) Without limiting the application of subsection (1) of this section to section 18 (2), food is falsely described for the purposes of section 18 (2) if it is supplied in response to a purchaser’s request for a particular type of food, or a food that does not contain a particular ingredient, and the food is not of that type or contains that ingredient.
23 Application of provisions outside the State
For the purposes of a provision of this Part, it does not matter that the food concerned was sold or intended for sale outside this State.Note—See section 25 for a defence in relation to food intended for export.
Division 2A Beef labelling
pt 2, div 2A (ss 23A–23D): Ins 2009 No 120, Sch 1 [1].
23A Beef labelling schemes
(1) The regulations may prescribe schemes regulating the use of words and expressions used in the labelling of any type of beef intended for sale or beef for sale to indicate the type of beef, the quality of beef or any other characteristic of the beef.(2) Without limiting subsection (1), the regulations prescribing a scheme may:(a) specify the type of beef that the scheme applies to, or(b) specify the requirements for labelling beef with a word or expression indicating the type, quality or any other characteristic of the beef, or(c) specify any other conditions relating to the use of a word or expression indicating the type, quality or any other characteristic of the beef, or(d) prohibit activities in relation to the labelling of beef, or(e) require records to be kept in relation to the labelling of beef.(3) This section does not limit the operation of the provisions of this Act relating to food safety schemes.(4) In this section:beef means the whole or any part of the carcase of any bovine animal.pt 2, div 2A (ss 23A–23D): Ins 2009 No 120, Sch 1 [1].
23B Misleading and deceptive conduct in relation to beef
(1) For the purposes of section 18 (1), a person carrying on a food business is taken to have engaged in conduct that is misleading or deceptive (or is likely to mislead or deceive) in relation to the advertising, packaging or labelling of beef intended for sale, or in relation to the sale of beef, if:(a) the person does not use AUS-MEAT language consistently (unless the person is complying with a scheme prescribed under section 23A), or(b) the person voluntarily adopts, but does not consistently comply with, a scheme prescribed under section 23A, or(d) the beef is advertised, packaged or labelled with the word “manufacturing” and does not also include the words “suitable for mince only”.(2) For the purposes of subsection (1) (a), a person does not use AUS-MEAT language consistently if:(a) the person advertises, packages, labels or sells beef described by means of AUS-MEAT language, and(b) other beef advertised, packaged, labelled or sold by that person is described by any other means that does not include a description by means of:(i) AUS-MEAT language, or(ii) a consumer descriptor.(3) For the purposes of subsection (1) (b), a person voluntarily adopts, but does not consistently comply with, a scheme prescribed under section 23A, if:(a) the person labels any beef in accordance with a scheme prescribed under section 23A or advertises, packages or sells beef that has been labelled in accordance with such a scheme, and(b) the person does not comply with that scheme in respect of all beef to which the scheme applies that is advertised, packaged, labelled or sold by that person.(4) This section does not limit the operation of section 18 (1).(5) In this section:AUS-MEAT language means any words, letters or symbols (other than the words beef, steak or veal or any words indicating a cooking method) that (whether alone, in combination or together with other words, letters or symbols) are used by the AUS-MEAT manual to designate or indicate beef as belonging to a particular type, quality, classification, category, cut or grade.AUS-MEAT manual means the Australian Meat Industry Classification System (Manual 1) (2009 edition) published by AUS-MEAT Limited (ACN 082 528 881) or, if a replacement document is prescribed for the purposes of this definition, that document.beef means the whole or any part of the carcase of any bovine animal.consumer descriptor means a word or expression prescribed by the regulations that is used to describe beef that is of a cut prescribed by the regulations.pt 2, div 2A (ss 23A–23D): Ins 2009 No 120, Sch 1 [1].
23C False descriptions of beef
(1) For the purposes of section 18 (2), beef is falsely described if:(a) it is described by means of AUS-MEAT language that is referable to beef of a particular type, quality, classification, category, cut or grade and:(i) it has not been assessed in accordance with the requirements of the AUS-MEAT manual, or(ii) it does not comply with the standards set out in the AUS-MEAT manual, with respect to beef of that type, quality, classification, category, cut or grade, or(b) it is described by means of a word or expression that is regulated in accordance with a scheme prescribed under section 23A and the description does not comply with the requirements of the scheme, or(c) it is described by means of a word or expression that is prescribed for the purposes of the definition of consumer descriptor in section 23B and the beef cannot be described as being of the cut that is prescribed in relation to that word or expression.(2) This section does not limit the operation of section 18 (2).(3) In this section:AUS-MEAT language has the same meaning as it has in section 23B.AUS-MEAT manual has the same meaning as it has in section 23B.beef means the whole or any part of the carcase of any bovine animal.pt 2, div 2A (ss 23A–23D): Ins 2009 No 120, Sch 1 [1].
23D Exemptions for restaurants, take-away food shops and similar outlets
(1) Subject to subsection (2), any person selling beef that has been cooked and is intended for immediate consumption (including, but not limited to, restaurants and take-away food shops) is exempt from sections 23B and 23C.(2) The regulations may prescribe any persons or classes of persons in respect of which the exemption provided by this section is not to apply from the date specified in the regulations.pt 2, div 2A (ss 23A–23D): Ins 2009 No 120, Sch 1 [1].
Division 3 Defences
24 Defence relating to publication of advertisements
(1) In any proceedings for an offence under this Part in relation to the publication of an advertisement, it is a defence for a person to prove that the person carried on the business of publishing or arranging for the publication of advertisements and that the person published or arranged for the publication of the advertisement in question in the ordinary course of that business.(2) Subsection (1) does not apply if the person:(a) should reasonably have known that the publication of the advertisement was an offence, or(b) had previously been informed in writing by the Food Authority that publication of such an advertisement would constitute an offence, or(c) is the proprietor of a food business or is otherwise engaged in the conduct of a food business for which the advertisements concerned were published.s 24: Am 2004 No 16, Sch 1 [7].
25 Defence in respect of food for export
(1) In any proceedings for an offence under this Part involving a contravention of or failure to comply with a provision of the Food Standards Code in relation to food, it is a defence for a person to prove that:(a) the food in question is to be exported to another country, and(b) the food complies with the laws in force at the time of the alleged offence in the place to which the food is to be exported, being laws that deal with the same subject-matter as the provision of the Food Standards Code concerned.(2) This section does not apply to food that was originally intended for export but was sold in this State.
26 Defence of due diligence
(1) In any proceedings for an offence under this Part, it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence by the person or by another person under the person’s control.(2) Without limiting the ways in which a person may satisfy the requirements of subsection (1), a person satisfies those requirements if it is proved:(a) that the commission of the offence was due to:(i) an act or default of another person, or(ii) reliance on information supplied by another person, and(b) that:(i) the person carried out all such checks of the food concerned as were reasonable in all the circumstances, or(ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the person, and(c) that the person did not import the food into this State from another country, and(d) in the case of an offence involving the sale of food, that:(i) the person sold the food in the same condition as when the person purchased it, or(ii) the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act or the regulations.(3) In subsection (2) (a), another person does not include a person who was:(a) an employee or agent of the defendant, or(b) in the case of a defendant that is a body corporate, a director, employee or agent of the defendant.(4) Without limiting the ways in which a person may satisfy the requirements of subsection (1) or (2) (b) (i), a person may satisfy those requirements by proving that:(a) in the case of an offence relating to a food business for which a food safety program is required to be prepared in accordance with the regulations, the person complied with a food safety program for the food business that complies with the requirements of the regulations, or(b) in any other case, the person complied with a scheme (for example, a quality assurance program or an industry code of practice) that was:(i) designed to manage food safety hazards and based on Australian national or international standards, codes or guidelines designed for that purpose, and(ii) documented in some manner.
27 Defence of mistaken and reasonable belief not available
In any proceedings for an offence under Division 2, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence.
28 Defence in respect of handling food
In any proceedings for an offence under section 13, 16 (1) or 17 (1), it is a defence if it is proved that the person caused the food to which the offence relates to be destroyed or otherwise disposed of immediately after the food was handled in the manner that was likely to render it unsafe or unsuitable.
29 Defence in respect of sale of unfit equipment or packaging or labelling material
In any proceedings for an offence under section 20 (1) or (2), it is a defence if the person proves that the person reasonably believed that the equipment or material concerned was not intended for use in connection with the handling of food.
Part 3 Emergency powers
30 Making of order
An order may be made under this Part by the Food Authority if the Food Authority has reasonable grounds to believe that the making of the order is necessary to prevent or reduce the possibility of a serious danger to public health or to mitigate the adverse consequences of a serious danger to public health.
31 Nature of order
An order under this Part may do any one or more of the following:(a) require the publication of warnings, in a form approved by the Food Authority, that a particular food or type of food is unsafe,(b) prohibit the cultivation, taking, harvesting or obtaining, from a specified area, of a particular food or type of food,(c) prohibit a particular food or type of food from being advertised or sold,(d) direct that a particular food or type of food consigned or distributed for sale or sold be recalled and specify the manner in which, and the period within which, the recall is to be conducted,(e) direct that a particular food or type of food be impounded, isolated, destroyed or otherwise disposed of and specify the manner in which the impounding, isolation, destruction or disposal is to be conducted,(f) prohibit absolutely the carrying on of an activity in relation to a particular food or type of food, or permit the carrying on of the activity in accordance with conditions specified in the order,(g) without limiting the generality of paragraph (f), impose conditions relating to the taking and analysis of samples of the food or of water or soil or any other thing that is part of the environment in which that activity is carried on in relation to the food,(h) specify methods of analysis (not inconsistent with any methods prescribed by the Food Standards Code) of any samples required to be taken in accordance with the order.
32 Special provisions relating to recall orders
(1) A recall order may require the person, or the persons of a class, that is bound by the order to disclose to the public or to a class of persons specified in the order, in a manner so specified, any one or more of the following:(a) the particular food or type of food to be recalled or disposed of,(b) the reasons why the food is considered to be unsafe,(c) the circumstances in which the consumption of the food is unsafe,(d) procedures for disposing of the food.(2) A person who is required by a recall order to conduct a recall of any food must give written notice to the Food Authority of the completion of the recall as soon as practicable after that completion.(3) A person who is bound by a recall order is liable for any cost incurred by or on behalf of the Food Authority in connection with the recall order and any such cost is taken to be a debt due to the Food Authority from that person.(4) In any proceedings for the recovery of the debt, a certificate signed by the Food Authority stating the amount of any costs and the manner in which they were incurred is evidence of the matters certified.
33 Manner of making orders
(1) An order under this Part:(a) may be made in writing addressed to the person or persons intended to be bound by it, and served on that person or each of those persons, as the case requires, or(b) may be addressed to several persons, to a class of persons, or to all persons.(2) Notice of an order addressed as referred to in subsection (1) (b) setting out the terms of the order and the persons to be bound by the order must, as soon as practicable after the order is made, be published:(a) in such reasonably practicable manner as, in the opinion of the Food Authority, will be most likely to bring the order to the attention of the persons bound by it, and(b) on the NSW legislation website if the order is addressed to a class of persons or to all persons.(3) An order under this Part, when it takes effect, is binding on the person or persons to whom it is addressed.(4) An order that is served on a person takes effect when it is served.(5) An order, notice of which is published under subsection (2), takes effect at the beginning of the first day on which the notice was published.(6) An order ceases to have effect at the expiration of 90 days after the day on which it takes effect unless it is sooner revoked.(7) Subsection (6) does not prevent a further order being made in the same terms as an order that has expired.(8) An order under this Part may be varied or revoked by the Food Authority in the same manner as the order was made.s 33: Am 2018 No 25, Sch 2.10.
34 Compensation
(1) A person bound by an order under this Part who suffers loss as a result of the making of the order may apply to the Food Authority for compensation if the person considers that there were insufficient grounds for the making of the order.(2) If there were insufficient grounds for the making of the order, the Food Authority is to pay such compensation to the applicant as is just and reasonable.(3) The Food Authority is to send written notification of its determination as to the payment of compensation under this section to each applicant for the payment of such compensation.(4) If the Food Authority has not determined an application for compensation under this section within 28 days of receiving the application, the Food Authority is taken to have refused to pay any compensation.(5) An applicant for the payment of compensation under this section who is dissatisfied with a determination by the Food Authority as to the refusal to pay compensation or as to the amount of compensation may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997:(a) within 28 days after the day on which notification of the determination was received, or(b) in a case to which subsection (4) applies, within 28 days after the expiration of the 28-day period referred to in that subsection.s 34: Am 2013 No 95, Sch 2.63 [2].
35 Failure to comply with emergency order
A person must not, without reasonable excuse:(a) carry on an activity in contravention of any prohibition imposed on the person by an order under this Part, or(b) neglect or refuse to comply with a direction given by such an order, or(c) fail to comply with a condition specified in such an order.Maximum penalty: 500 penalty units in the case of an individual or 2,500 penalty units in the case of a corporation.Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 35: Am 2012 No 97, Sch 1.13 [10].
36 Limitation on stay of operation of emergency orders
In any proceedings for judicial review or in any other proceedings, a court or tribunal is not authorised to make an interlocutory order that has the effect of staying the operation of an order under this Part.
Part 4 Inspection and seizure powers
Division 1 Inspection
37 Powers of authorised officers
(1) For the purposes of this Act, an authorised officer may, at any reasonable time, do any one or more of the following:(a) alone, or with such police officers or other persons as the authorised officer considers necessary, enter and inspect any premises that the authorised officer reasonably believes are used in connection with the handling of any food intended for sale or the sale of food, or any food transport vehicle,(b) alone, or with such police officers or other persons as the authorised officer considers necessary, enter and inspect any premises or food transport vehicle, in which the authorised officer reasonably believes that there are any records or documents that relate to the handling of any food intended for sale or the sale of food,(c) examine any food intended for sale,(d) open and examine any package that the authorised officer reasonably believes contains any food intended for sale or any equipment,(e) open and examine any equipment,(f) examine any labelling or advertising material that appears to the authorised officer to be intended for use in connection with any food intended for sale or any equipment,(g) subject to Division 1 of Part 6, for the purpose of analysing any food sold or intended for sale or for carrying out any other examination in order to determine whether the provisions of this Act or the regulations are being complied with, demand, select and obtain samples of any food,(h) for the purpose of analysis, take samples of water or soil or any other thing that is part of the environment in which any food is handled to determine whether that environment poses a risk to the safety of the food for human consumption,(i) take samples of any thing, other than for the purpose of analysis, that the authorised officer reasonably believes may be used as evidence that an offence has been, or is being, committed under this Act or the regulations,(j) examine any records or documents referred to in paragraph (b), make copies of those records or documents or any part of them and, for that purpose, take away and retain (for such time as may be reasonably necessary) any such records or documents or any part of them,(k) stop and detain any vehicle that the authorised officer is authorised by this subsection to enter,(l) open, or require to be opened, any container used for the conveyance of goods, or any package, that the authorised officer reasonably believes to contain any food sold or intended for sale, or any equipment,(m) take such photographs, films or audio or visual recordings as the authorised officer considers necessary,(n) take any measurements and make sketches or drawings or any other type of record,(o) require a person to provide information or answer questions in connection with the authorised officer’s functions under this Act or to produce any record, document or thing that an authorised officer is authorised to examine under this Act,(p) require a person to state the person’s name and residential address,(q) generally make such investigations and inquiries as may be necessary to ascertain whether an offence under this Act or the regulations has been or is being committed.(2) This section does not authorise entry into any part of premises that is being used solely for residential purposes, except:(a) with the consent of the occupier of the premises, or(b) under the authority of a search warrant, or(c) if that part of the premises is being used for the preparation or service of meals provided with paid accommodation.
38 Power of seizure
An authorised officer may seize any food, or any vehicle, equipment, package or labelling or advertising material, or any other thing at all, that the authorised officer believes on reasonable grounds:(a) is evidence that an offence under this Act or the regulations has been or is being committed, or(b) does not comply with a provision of this Act or the regulations, or, in the case of food, is labelled or packaged in a way that does not comply with a provision of this Act or the regulations.
39 Search warrants
(1) An authorised officer may apply to an authorised justice for a search warrant if the authorised officer has reasonable grounds for believing that a provision of this Act or the regulations has been or is being contravened on premises.(2) An authorised justice to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the authorised officer named in the warrant, when accompanied by a police officer, and such other person (if any) as is named in the warrant:(a) to enter the premises concerned, and(b) to search the premises for evidence of a contravention of this Act or the regulations.(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.s 39: Am 2007 No 47, Sch 1 [3].
40 Failure to comply with requirements of authorised officers
(1) A person must not, without reasonable excuse, fail to comply with a requirement of an authorised officer duly made under this Division.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.(2) Such a requirement is not duly made unless, at the time of the making of the requirement, the person of whom the requirement is made is informed by the authorised officer that a refusal or failure to comply with the requirement may constitute an offence.
41 Interfering with seized items
A person must not, without the permission of an authorised officer, detain, remove or tamper with any food, vehicle, equipment, package or labelling or advertising material or other thing that has been seized under this Act, unless it has been returned in accordance with Division 2 or an order disallowing the seizure has been made under that Division.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
42 False information
A person must not, in connection with a requirement or direction under this Act, provide any information or produce any document that the person knows is false or misleading in a material particular.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
43 Obstructing or impersonating authorised officers
(1) A person must not, without reasonable excuse, resist, obstruct, or attempt to obstruct, an authorised officer in the exercise of the authorised officer’s functions under this Act.(2) A person must not impersonate an authorised officer.(3) A person must not threaten, intimidate or assault an authorised officer in the exercise of the authorised officer’s functions under this Act.Maximum penalty: 500 penalty units.
43A Powers of authorised officers and food safety auditors may be exercised concurrently
A person who is a food safety auditor and an authorised officer and who is exercising the functions of a food safety auditor in relation to any premises or food transport vehicle may also exercise the functions of an authorised officer but only if the person has first produced his or her certificate of authority issued under section 115:(a) to the proprietor of the food business that uses those premises or food transport vehicle or to a person who is apparently in charge of those premises or that vehicle, and(b) to any person whom the authorised officer requires to produce anything or to answer any question.s 43A: Ins 2010 No 108, Sch 1 [1].
Division 2 Items seized by authorised officers
44 Seized items
(1) Any item seized under this Part may, at the option of the authorised officer who seized the item or of any authorised officer acting in his or her place, be detained in the premises where it was found or be removed to another place and detained there.(2) If the item is to be detained in the premises where it was found, the authorised officer:(a) may place it in a room, compartment or cabinet in those premises, and(b) may mark, fasten and seal the door or opening providing access to that room, compartment or cabinet, and(c) must ensure that it is marked in such a way as to indicate that it has been seized under this Act.
45 Notification of seizure
An authorised officer who seizes any item under this Part must, as soon as practicable after the seizure, give the person from whom the item was seized written notification of the seizure that includes the following:(a) a description of the items seized,(b) the reason for the seizure,(c) an explanation of the person’s right to make an application to the court under section 52 for an order disallowing the seizure,(d) the address of the place where the item is held if the item has been removed from the premises where it was seized,(e) the name of the enforcement agency to whom the authorised officer reports.
46 Destruction of filthy, decomposed or putrid matter
If an authorised officer who has seized food under this Part is satisfied that the food consists wholly or partly of filthy, decomposed or putrid matter or that it poses an immediate risk to health or property, the authorised officer (disregarding any provision to the contrary in this Part) may cause the food to be destroyed.
47 Return of seized item
If, before any item seized under this Part is forfeited to the Crown under this Division, the enforcement agency concerned becomes satisfied that there has been no contravention of this Act or the regulations of which the item is evidence, the enforcement agency must, as soon as practicable, cause the item to be delivered to:(a) the person from whom it was seized, or(b) such other person as appears to the enforcement agency to be entitled to it.
48 Forfeiture of item
(1) An item seized under this Part is forfeited to the Crown:(a) on the expiration of the period allowed by section 52 for the making of an application for an order disallowing the seizure if the item has not been dealt with under section 47 and no application under section 52 has been made within that period, or(b) if an application for an order disallowing the seizure has been made under section 52 but the application has been refused or has been withdrawn before a decision on the application has been made, on the date on which the application is refused or withdrawn.(2) An item forfeited to the Crown under this section may be destroyed, sold or otherwise disposed of as the enforcement agency concerned may, generally or in a particular case, direct.
49 Cost of destruction or disposal of forfeited item
(1) A person who was the owner of an item immediately before its forfeiture under this Division is liable for any cost incurred by or on behalf of the enforcement agency concerned in connection with the lawful destruction or disposal of the item (including any storage costs) and any such cost is taken to be a debt due to the enforcement agency from that person.(2) In any proceedings for the recovery of the debt, a certificate signed by the enforcement agency stating the amount of any costs and the manner in which they were incurred is evidence of the matters certified.
50 Return of forfeited item
(1) An item seized under this Part that is forfeited under this Division and that has not been destroyed or otherwise disposed of in a manner that would prevent its return must, as soon as practicable, be delivered to the person from whom it was seized, or such other person as appears to the enforcement agency concerned to be entitled to it, if the enforcement agency becomes satisfied that no contravention of this Act or the regulations has been committed in relation to the item.(2) On being so delivered, any proprietary and other interests in the item that existed immediately before its forfeiture are restored.
51 Compensation to be paid in certain circumstances
(1) A person may apply for compensation for an item seized under this Part to the enforcement agency that appointed the authorised officer who seized the item, but only if the period allowed by section 52 for the making of an application for an order disallowing the seizure has expired and no application has been made.(2) An enforcement agency is, on an application made in accordance with this section, to pay such compensation as is just and reasonable in relation to any item seized under this Part by an authorised officer appointed by it if:(a) no contravention of this Act or the regulations has been committed in relation to the item, and(b) the item cannot be returned or has in consequence of the seizure depreciated in value.(3) An enforcement agency required to make a determination under subsection (2) as to the payment of compensation is to send written notification of its determination to the person from whom the item was seized and any person seeking compensation under this section.(4) If an enforcement agency determines to pay compensation under this section in relation to an item, the compensation is to be paid to the person from whom the item was seized, or such other person as appears to the enforcement agency to be entitled to it.(5) A person from whom an item was seized under this Part, or any other person who has sought compensation under this section, who is dissatisfied with a determination by an enforcement agency under this section as to the payment of such compensation may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the determination within 10 days after the date on which notification of the determination was received.s 51: Am 2013 No 95, Sch 2.63 [3].
52 Application for order disallowing seizure
(1) A person claiming to be entitled to any item seized under this Part may, within 10 days after the date on which the seizure took place, lodge an application with the District Court or the Local Court for an order disallowing the seizure.(2) The application is to be made in accordance with the rules governing the court and is not to be heard unless the applicant has previously served a copy of the application on the enforcement agency concerned.s 52: Am 2007 No 94, Sch 2.
53 Enforcement agency entitled to answer application
The enforcement agency concerned is entitled to appear as respondent at the hearing of an application made under section 52.
54 Order disallowing seizure of item
The court, on the hearing of an application made under section 52, must make an order disallowing the seizure of an item if:(a) it is proved that the applicant would, but for the seizure, be entitled to the item and it is not proved that an offence under this Act or the regulations was being, or had been, committed, being an offence of which the item was evidence, orbut otherwise the court must refuse the application.(b) in the opinion of the court, there are exceptional circumstances justifying the making of such an order,
55 Ancillary orders
(1) In the event that the court makes an order for the return of any item seized under this Part, it must also make one or both of the following orders:(a) an order directing the respondent to cause the item to be delivered to the applicant or to such other person as appears to the court to be entitled to it,(b) if the item cannot for any reason be so delivered or has in consequence of the seizure depreciated in value, an order directing the enforcement agency concerned to pay to the applicant such amount by way of compensation as the court considers to be just and reasonable.(2) Despite subsection (1), the court is not to award an amount of compensation that exceeds its general monetary jurisdiction.(3) The award of costs with respect to the hearing of the application lies in the discretion of the court.(4) If the court makes an order for the payment of any amount as compensation or awards any amount as costs, the order is enforceable as a judgment of the court.
56 Adjournment pending hearing of other proceedings
If on the hearing of an application made under section 52 it appears to the court that the item that is the subject of the application is required to be produced in evidence in any pending proceedings in connection with an offence under this Act or the regulations or under any other Act or regulations under any other Act, the court, on the application of the respondent or on its own motion, may adjourn the hearing until the conclusion of those proceedings.
Part 5 Improvement notices and prohibition orders for premises or equipment
57 Unclean or unfit premises, vehicles or equipment
If an authorised officer believes, on reasonable grounds, that:(a) any premises used by a food business in connection with the handling of food intended for sale or any equipment or food transport vehicle is in an unclean or insanitary condition or is otherwise unfit for the purpose for which it is designed or intended to be used, or(b) any premises used by a food business in connection with the handling of food intended for sale or any equipment or food transport vehicle does not comply with a provision of the Food Safety Standards with which the food business is required to comply, or(c) in relation to any premises used in connection with the handling of food for sale or any food transport vehicle, any relevant food safety program prepared in accordance with the regulations is not being implemented adequately by a food business, orthe authorised officer may serve an improvement notice on the proprietor of the food business in accordance with this Part.(d) any provision of the Food Standards Code with which a food business is required to comply is being contravened in relation to the handling of food intended for sale on any premises, or in any food transport vehicle, used by the food business in connection with the handling of food intended for sale,s 57: Am 2004 No 16, Sch 1 [8] [9].
58 Improvement notice
(1) An improvement notice is to take the form of an order that:(a) premises, equipment or a food transport vehicle be put into a clean and sanitary condition, or be repaired, to the satisfaction of an authorised officer, or(b) equipment or a vehicle be replaced, or(c) a food safety program be prepared if required by the regulations, or(d) a food safety program required by the regulations be revised so as to comply with the requirements of the regulations, or(e) in relation to the handling of food intended for sale, measures be taken to implement the provisions of any relevant food safety program required to be prepared by the regulations, orwithin a period of 24 hours (or such longer period as is specified in the notice) after the service of the notice on the proprietor of the food business.(f) in relation to the handling of food intended for sale, measures be taken to implement the requirements of the Food Safety Standards,(2) Before the end of the period specified in the improvement notice, the authorised officer who issued the notice may, on his or her own motion or on the application of the proprietor of the food business, extend the period within which the proprietor of the food business is to take action in accordance with the notice.(3) An improvement notice is to state that it is issued under this section.
59 Compliance with improvement notice
(1) If an improvement notice is complied with, an authorised officer is to note the date of compliance on a copy of the notice.(2) An authorised officer must give a copy of an improvement notice, noted in accordance with this section, to the person on whom the improvement notice was served if requested to do so by the person.
60 Prohibition order
(1) If the Food Authority or an enforcement agency believes, on reasonable grounds:(a) that any of the circumstances specified in section 57 (a), (b), (c) or (d) exist, andthe Food Authority or the enforcement agency may serve a prohibition order on the proprietor of the food business in accordance with this Part.(b) that:(i) the proprietor of a food business has not complied with an improvement notice within the time required by section 58 for compliance, or(ii) the issue of the order is necessary to prevent or mitigate a serious danger to public health,(2) A prohibition order is to take the form of an order that:(a) no food intended for sale is to be handled on specified premises or a specified part of specified premises, or(b) no food intended for sale is to be conveyed in a specified vehicle, or(c) specified equipment is not to be used in connection with food intended for sale, oruntil the proprietor of the food business has been given a certificate of clearance stating that the premises, part of the premises, vehicle or equipment may be used for the handling or conveyance of food intended for sale, or for use in connection with such food, or that the food may be handled in the specified way or for the specified purpose, as the case may be.(d) no food intended for sale is to be handled by a food business in a specified way or for a specified purpose,(3) A prohibition order is to state that it is issued under this section.(4) The Food Authority or person that made the order must give a certificate of clearance if, after an inspection of the premises, part of the premises, vehicle or equipment, or the way of handling food, specified in the prohibition order, the Food Authority or person finds, by the Food Authority’s or person’s own inspection or the report of an authorised officer, that:(a) the premises, part of the premises, vehicle or equipment, or the handling of food by the food business in the specified way or for the specified purpose, is not a serious danger to public health, and(b) the person on whom the prohibition order was served has complied with the prohibition order and any improvement notices served on the person.s 60: Am 2004 No 16, Sch 1 [10] [11].
61 Scope of notices and orders
An improvement notice or a prohibition order may be made with respect to any one or more of the following:(a) any premises or any part of any premises, food transport vehicle or equipment specified in the notice or order,(b) all equipment contained on any premises or any part of any premises, or in a food transport vehicle, specified in the notice or order, or any specified equipment so contained,(c) the handling of food intended for sale by a food business in a specified way or for a specified purpose.
62 Notices and orders to contain certain information
An improvement notice or prohibition order under this Part:(a) must specify any provision of the Food Standards Code to which it relates, and(b) may specify particular action to be taken by a person to ensure compliance with the provision of the Food Standards Code to which it relates.
63 Request for re-inspection
(1) The proprietor of the food business whose premises (other than a vehicle) are affected by a prohibition order may at any time after the order has been served make a written request to the Food Authority or person who made the order to cause the premises to be inspected by an authorised officer.(2) The proprietor of the food business whose vehicle or equipment is affected by a prohibition order may at any time after the order has been served make a written request to the Food Authority or person who made the order to cause the vehicle or equipment to be inspected by an authorised officer:(a) at the place where it was originally inspected, or(b) if it is not convenient for it to be inspected at that place, at some other place that the Food Authority or person who made the order has agreed to.(3) If a request for inspection is made under this section and the premises, vehicle or equipment concerned, through no fault of the proprietor of the food business, is not inspected by an authorised officer within the period of 48 hours of the receipt of the request by the Food Authority or person, a certificate of clearance is taken to have been given to the proprietor of the food business under section 60.
64 Contravention of prohibition order
A person must not contravene or fail to comply with a prohibition order served on the person under this Part.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.Note—An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 64: Am 2012 No 97, Sch 1.13 [11].
65 Administrative review of decision to refuse certificate of clearance
The proprietor of a food business on whom a prohibition order has been served may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Food Authority or the person who made the order to refuse to give a certificate of clearance under section 60 to the proprietor.s 65: Am 2013 No 95, Sch 2.63 [4].
66 Compensation
(1) A person bound by a prohibition order who suffers loss as a result of the making of the order may apply to the Food Authority or person who made the order for compensation if the person bound by the order considers that there were no grounds for the making of the order.(2) If there were no grounds for the making of the order, the Food Authority or enforcement agency is to pay such compensation to the applicant as is just and reasonable.(3) The Food Authority or enforcement agency is to send written notification of its determination as to the payment of compensation under this section to each applicant for the payment of such compensation.(4) If the Food Authority or enforcement agency has not determined an application for compensation under this section within 28 days of receiving the application, the Food Authority or enforcement agency is taken to have refused to pay any compensation.(5) An applicant for the payment of compensation under this section who is dissatisfied with a determination by the Food Authority or enforcement agency as to the refusal to pay compensation or as to the amount of compensation may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997:(a) within 28 days after the day on which notification of the determination was received, or(b) in a case to which subsection (4) applies, within 28 days after the expiration of the 28-day period referred to in that subsection.s 66: Am 2013 No 95, Sch 2.63 [5].
66AA Fee
(1) A person who is given an improvement notice by an authorised officer of an enforcement agency must, within 28 days after the notice is given, pay the fee prescribed by the regulations to the enforcement agency if the notice contains a requirement to do so.(2) The enforcement agency may:(a) extend the time for payment of the fee, on the application of the person to whom the improvement notice was given, or(b) waive payment of the whole or any part of the fee, on the enforcement agency’s own initiative or on the application of the person to whom the improvement notice was given.(3) A person to whom an improvement notice is given in accordance with this Part must pay the fee required by this section within the time provided under this section.Maximum penalty (subsection (3)): 50 penalty units.s 66AA: Ins 2007 No 47, Sch 1 [4].
Part 6 Taking and analysis of samples
Division 1 Taking of samples
66A Application of Division
This Division applies only to the taking of samples by an authorised officer in the exercise of powers under Part 4.s 66A: Ins 2004 No 16, Sch 1 [12].
67 Proprietor to be informed
Whenever an authorised officer obtains a sample of food for the purposes of analysis, an authorised officer must, either before or as soon as practicable after obtaining the sample, inform:(a) the proprietor of the food business from which the sample is to be taken or was taken, orof the authorised officer’s intention to have the sample analysed.(b) if the proprietor is not present or readily available, the person from whom the sample was obtained or who was in charge of the food from which the sample was taken,
68 Payment for sample
An authorised officer when obtaining a sample of food must pay, or tender payment of:(a) the amount prescribed by the regulations as the amount payable for the sample concerned, orto the person from whom the sample is obtained.(b) if no such amount is prescribed by the regulations, an amount equal to the current market value of the sample,
69 Samples from vending machines
Sections 67 and 68 do not apply to the obtaining of a sample by an authorised officer from a vending machine if the authorised officer obtains the sample by making proper payment for it and the authorised officer cannot identify anyone who at the time appears to be in charge of the machine.
70 Packaged food
An authorised officer who takes a sample of food for the purposes of this Act that is contained in a closed package intended for retail sale must take the whole of the package unless the package contains two or more smaller packages of the same food.
71 Procedure to be followed
(1) This section applies to the taking of samples for the purposes of this Act except to the extent that the Food Standards Code otherwise provides.(2) An authorised officer who obtains a sample of food for the purposes of analysis must (unless subsection (3) applies):(a) divide the sample into 3 separate parts and mark and seal or fasten each part in such manner as its nature will permit, and(b) leave one part with the proprietor of the food business or any other person from whom the sample was obtained or a person appearing to be the employee or agent of that proprietor or other person, and(c) submit one of the remaining parts for analysis, and(d) retain the other remaining part for future comparison.(3) If the division of a sample for analysis into 3 separate parts in accordance with subsection (2) would in the opinion of the authorised officer:(a) so affect or impair the composition or quality of the sample as to render the separate parts unsuitable for accurate analysis, or(b) result in the separate parts being of an insufficient size for accurate analysis, orthe authorised officer may take, in accordance with this section, as many samples as the authorised officer considers necessary to enable an accurate analysis to be carried out and may deal with the sample or samples in such manner as is appropriate in the circumstances.(c) render the sample in any other way unsuitable for analysis, including a method of analysis prescribed by the regulations in relation to the food from which the sample was taken,(4) If a sample of food is taken by an authorised officer in the form of separate or severable objects, it is not necessary, in dividing that sample into parts in accordance with this section, to divide any one of those objects, and it is sufficient compliance with this section if the authorised officer:(a) takes a number of those objects, and(b) divides the number so taken into the requisite number of parts so that each part consists of one or more than one of the separate or severable objects, and(c) deals with those parts in accordance with the preceding provisions of this section.
72 Samples to be submitted for analysis
An authorised officer must submit any sample obtained in accordance with this Division for analysis under Division 2 unless no longer of the opinion that the sample ought to be analysed.
Division 2 Procedures relating to analyses
73 Compliance with Food Standards Code
Except as provided by the regulations, a person who carries out an analysis for the purposes of this Act is to comply with any requirements of the Food Standards Code relating to the carrying out of analyses.s 73: Am 2004 No 16, Sch 1 [13].
74 Certificate of analysis
(1) This section applies to an analysis that is carried out:(a) by an approved laboratory, or(b) by an approved analyst, orfor the purposes of this Act.(c) under the supervision of an approved analyst,(2) On completion of an analysis to which this section applies:(a) the person in charge of the laboratory at which the analysis was carried out, or(b) the approved analyst who carried out the analysis, oris to give the person who requested the analysis, or an agent of the person, a certificate of analysis, in the approved form, that complies with the requirements of subsection (3).(c) the approved analyst who supervised the carrying out of the analysis,(3) The certificate of analysis must:(a) be dated and signed by the person in charge of the laboratory at which the analysis was carried out or by the approved analyst who carried out the analysis or who supervised the carrying out of the analysis, and(b) contain a written report of the analysis that sets out the findings, and(c) specify the requirements, if any, of the Food Standards Code relating to the carrying out of the analysis and certify that the analysis was carried out in accordance with those requirements.
Division 3 Approval of laboratories
75 Approval of laboratories
(1) The Food Authority may approve laboratories for the purposes of carrying out analyses under this Act.(2) A person providing or intending to provide analysis services at a laboratory may make an application, in the approved form, to the Food Authority for an approval of the laboratory under this Division.(3) The application is to be accompanied by:(a) such information as the Food Authority requires to determine the application, and(b) the fee, if any, prescribed by the regulations.(4) The Food Authority may, after considering an application for approval:(a) grant the application, with or without conditions, or(b) refuse the application.(5) If the Food Authority grants an application for approval, it must issue the applicant with a written approval that sets out the conditions to which the approval is subject.(6) If the Food Authority refuses an application for approval, the Food Authority must give notice of the refusal in writing to the applicant setting out the reasons for the refusal.
76 Term of approval
Except during any period of suspension, an approval of a laboratory granted under this Division remains in force until cancelled.
77 Approved laboratory to give notice of certain interests
The person in charge of an approved laboratory must notify the Food Authority of any direct or indirect interest in any food business that a person concerned in the management of, or an employee of, the approved laboratory has as soon as possible after becoming aware of that interest.Maximum penalty: 50 penalty units.
78 Variation of conditions or suspension or cancellation of approval of laboratory
(1) The Food Authority may vary the conditions of, or suspend or cancel, the approval of a laboratory under this Division.(2) An approval of a laboratory may be suspended or cancelled on one or more of the following grounds:(a) if the Food Authority is satisfied that a person providing services at the laboratory has wilfully or negligently contravened or failed to comply with any provision of this Act or the regulations,(b) if the Food Authority is satisfied that a person providing services at the laboratory has contravened a condition to which the approval is subject,(c) if the Food Authority is satisfied that a person in charge of, concerned in the management of or employed by, the laboratory has a direct or indirect interest in any food business that, in the opinion of the Food Authority, could affect the carrying out of the laboratory’s functions under this Act,(d) at the request of the person in charge of the laboratory,(e) for any other reason that the Food Authority considers appropriate.(3) The Food Authority may only vary the conditions of, or suspend or cancel, the approval of a laboratory:(a) after having given the person in charge of the laboratory:(i) written reasons of its intention to vary, suspend or cancel, and(ii) an opportunity to make submissions, and(b) after having considered any submissions duly made by the person.(4) Subsection (3) does not apply to the cancellation of an approval at the request of the person in charge of the laboratory.(5) A variation of the conditions of, or the suspension or cancellation of, the approval of a laboratory:(a) must be made by notice in writing, and(b) must be served on the person in charge of the laboratory, and(c) takes effect at the time at which the notice is served or at a later time specified in the notice.
79 Administrative review of decisions relating to approval
(1) An applicant for an approval of a laboratory under this Division, or the holder of such an approval, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions relating to the application or approval:(a) the grant or refusal of an application for approval of a laboratory under this Division,(b) the imposition of conditions on an approval,(c) the variation of conditions of an approval,(d) the suspension or cancellation of an approval.(2) An application under this section may only be made within 10 days after service of:(a) the relevant written approval or notice of refusal under section 75, in the case of an application for the administrative review of a decision referred to in subsection (1) (a) or (b), or(b) the relevant notice of the variation, suspension or cancellation under section 78, in the case of an application for the administrative review of a decision referred to in subsection (1) (c) or (d).s 79: Am 2013 No 95, Sch 2.63 [6] [7].
80 List of approved laboratories to be maintained
(1) The Food Authority is to prepare and maintain a list of approved laboratories.(2) The list is to be made publicly available and is to be revised at least annually.
Division 4 Approval of analysts
81 Approval of persons to carry out analyses
(1) The Food Authority may approve natural persons for the purposes of carrying out analyses under this Act.(2) A natural person may make an application, in the approved form, to the Food Authority for an approval under this Division.(3) The application is to be accompanied by:(a) such information as the Food Authority requires to determine the application, and(b) the fee, if any, prescribed by the regulations.(4) The Food Authority may, after considering an application for approval:(a) grant the application, with or without conditions, or(b) refuse the application.(5) If the Food Authority grants an application for approval, it must issue the applicant with a written approval that sets out the conditions to which the approval is subject.(6) If the Food Authority refuses an application for approval, the Food Authority must give notice of the refusal in writing to the applicant setting out the reasons for the refusal.
82 Term of approval
Except during any period of suspension, an approval of a person granted under this Division remains in force until cancelled.
83 Approved analyst to give notice of certain interests
A person who is an approved analyst must notify the Food Authority of any direct or indirect interest in any food business that the person has as soon as possible after becoming aware of that interest.Maximum penalty: 50 penalty units.
84 Variation of conditions or suspension or cancellation of approval of analyst
(1) The Food Authority may vary the conditions of, or suspend or cancel, an approval under this Division.(2) An approval of a person under this Division may be suspended or cancelled on one or more of the following grounds:(a) if the Food Authority is satisfied that the person has wilfully or negligently contravened any provision of this Act or the regulations,(b) if the Food Authority is satisfied that the person has contravened a condition to which the approval is subject,(c) if the Food Authority is satisfied that the person has a direct or indirect interest in any food business that, in the opinion of the Food Authority, could affect the carrying out of the person’s functions under this Act,(d) at the request of the person,(e) for any other reason that the Food Authority considers appropriate.(3) The Food Authority may only vary the conditions of, or suspend or cancel, the approval of a person under this Division:(a) after having given the person:(i) written reasons of its intention to vary, suspend or cancel, and(ii) an opportunity to make submissions, and(b) after having considered any submissions duly made by the person.(4) Subsection (3) does not apply to the cancellation of an approval at the request of the person to whom the approval relates.(5) A variation of the conditions of, or the suspension or cancellation of, an approval of a person under this Division:(a) must be made by notice in writing, and(b) must be served on the person, and(c) takes effect at the time at which the notice is served or at a later time specified in the notice.
85 Administrative review of decisions relating to approval
(1) An applicant for an approval under this Division, or the holder of such an approval, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions of the Food Authority relating to the application or approval:(a) the grant or refusal of an application for approval under this Division, or(b) the imposition of conditions on an approval, or(c) the variation of conditions of an approval, or(d) the suspension or cancellation of an approval.(2) An application under this section may only be made within 10 days after service of:(a) the relevant written approval or notice of refusal under section 81, in the case of an application for the administrative review of a decision referred to in subsection (1) (a) or (b), or(b) the relevant notice of the variation, suspension or cancellation under section 84, in the case of an application for the administrative review of a decision referred to in subsection (1) (c) or (d).s 85: Am 2013 No 95, Sch 2.63 [8] [9].
86 List of approved analysts to be maintained
(1) The Food Authority is to prepare and maintain a list of approved analysts.(2) The list is to be made publicly available and is to be revised at least annually.
Part 7 Auditing
Division 1 Approval of food safety auditors
87 Approval of food safety auditors
(1) The Food Authority may authorise a person who is a member of staff of the Food Authority, or approve any other natural person, to be a food safety auditor for the purposes of this Act if the Food Authority is satisfied that the person is competent to carry out the functions of a food safety auditor having regard to:(a) the person’s technical skills and experience, and(b) any guidelines relating to competency criteria approved by the Food Authority.(2) A natural person may make an application, in the approved form, to the Food Authority for an approval under this Part.(3) The application is to be accompanied by:(a) such information as the Food Authority requires to determine the application, and(b) the fee, if any, prescribed by the regulations.(4) The Food Authority may, after considering an application for approval:(a) grant the application, with or without conditions, or(b) refuse the application.(5) If the Food Authority grants an application for approval, it must issue the applicant with a written approval that sets out any conditions to which the approval is subject.(6) If the Food Authority refuses an application for approval, the Food Authority must give notice of the refusal in writing to the applicant setting out the reasons for the refusal.s 87: Am 2004 No 16, Sch 1 [14].
87A Beef labelling auditors
(1) This section only authorises the exercise of functions in relation to the auditing of the beef labelling requirements.(2) The Food Authority may appoint a person employed by an approved industry body to be a beef labelling auditor for the purposes of carrying out audits to determine compliance with the beef labelling requirements.(3) A beef labelling auditor is to exercise his or her functions in accordance with the directions issued to the approved industry body by the Food Authority.(4) The cost of exercising those functions is the responsibility of the approved industry body.(5) A beef labelling auditor is taken to be a food safety auditor for the purposes of this Act and accordingly a reference in this Act to a food safety auditor is taken to include a reference to a beef labelling auditor.(6) In this section:approved industry body means a body that represents the beef industry and that is approved for the time being by the Food Authority.beef labelling requirements means the requirements arising under Division 2A of Part 2.s 87A: Ins 2009 No 120, Sch 1 [2].
88 Term of approval
Except during any period of suspension, an approval granted under this Division remains in force for the period specified in the approval unless sooner cancelled.
89 Food safety auditor to give notice of certain interests
(1) A food safety auditor must notify the Food Authority of any direct or indirect interest in any food business that the auditor has as soon as possible after becoming aware of that interest.Maximum penalty: 50 penalty units.(2) Payment to an auditor for carrying out the functions of an auditor does not constitute a direct or indirect interest in a food business for the purposes of subsection (1).
90 Variation of conditions or suspension or cancellation of approval of auditor
(1) The Food Authority may vary the conditions of, or suspend or cancel, an approval under this Division.(2) An approval of a person may be suspended or cancelled on one or more of the following grounds:(a) if the Food Authority is satisfied that the person has wilfully or negligently contravened any provision of this Act or the regulations,(b) if the Food Authority is satisfied that the person has contravened a condition to which the approval is subject,(c) if the Food Authority is satisfied that the person has not competently carried out any duty of an auditor under this Act,(d) if the Food Authority is satisfied that the person has a direct or indirect interest in any food business that, in the opinion of the Food Authority, could affect the performance of the person’s duties under this Act,(e) at the request of the person,(f) for any other reason that the Food Authority considers appropriate.(3) Payment to an auditor for performing the duties of an auditor does not constitute a direct or indirect interest in a food business for the purposes of subsection (2) (d).(4) The Food Authority may only vary the conditions of, or suspend or cancel, the approval of a person:(a) after having given the person:(i) written reasons of its intention to vary, suspend or cancel, and(ii) an opportunity to make submissions, and(b) after having considered any submissions duly made by the person.(5) Subsection (4) does not apply to the cancellation of an approval at the request of the person to whom the approval relates.(6) A variation of the conditions of, or the suspension or cancellation of, the approval of a person under this Part:(a) must be by notice in writing, and(b) must be served on the person to whom the approval relates, and(c) takes effect on the day on which the notice is served or on a later day specified in the notice.
91 Administrative review of decisions relating to approval
(1) An applicant for an approval under this Division, or the holder of such an approval, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions of the Food Authority relating to the application or approval:(a) the grant or refusal of an application for an approval under this Division,(b) the imposition of conditions on an approval,(c) the variation of conditions of an approval,(d) the suspension or cancellation of an approval.(2) An applicant for an approval under this Division, or the holder of such an approval may apply to the Food Authority for a review of any of the following decisions relating to the application or approval if the decision was made by a body acting under a delegation given by the Food Authority:(a) the grant or refusal of an application for an approval under this Division,(b) the imposition of conditions on an approval,(c) the variation of conditions of an approval,(d) the suspension or cancellation of an approval.(3) An application under this section may only be made within 10 days after service of:(a) the relevant written approval or notice of refusal under section 87, in the case of an application for the review of a decision referred to in subsection (1) (a) or (b) or (2) (a) or (b), or(b) the relevant notice of the variation, suspension or cancellation under section 90, in the case of an application for the review of a decision referred to in subsection (1) (c) or (d) or (2) (c) or (d).s 91: Am 2013 No 95, Sch 2.63 [10].
Division 2 Auditing and reporting requirements
92 (Repealed)
s 92: Rep 2004 No 16, Sch 1 [15].
93 Priority classification system and frequency of auditing
(1) The appropriate enforcement agency must determine:(a) the priority classification of individual food businesses for the purposes of the application of any requirements of the regulations relating to food safety programs, and(b) the frequency of auditing of any food safety programs required to be prepared by the regulations in relation to the food businesses.(2) The determination must be made having regard to a priority classification system for types of food businesses approved by the Food Authority.(3) The appropriate enforcement agency must provide written notification to the proprietor of a food business of:(a) the priority classification it has determined for the food business, and(b) the frequency of auditing of any food safety programs required to be prepared by the regulations in relation to the food business, and(c) the date by which the food business must have implemented any food safety program required to be prepared by the regulations in relation to the food business.(4) The appropriate enforcement agency may change the priority classification of an individual food business if the appropriate enforcement agency believes that the classification is inappropriate for any reason, including as a result of changes made to the conduct of the food business.(5) The appropriate enforcement agency must provide written notification to the proprietor of a food business of any change in priority classification of the food business under subsection (4).
94 Duties of food safety auditors
A food safety auditor has the following duties:(a) to carry out audits of any food safety programs required by the regulations to be prepared in relation to food businesses having regard to the requirements of the regulations,(b) to carry out any necessary follow-up action, including further audits, if necessary, to determine whether action has been taken to remedy any deficiencies of any such food safety program identified in an audit,(c) to carry out assessments of food businesses to ascertain their compliance with requirements of the Food Safety Standards,(d) to report in accordance with section 95.
95 Reporting requirements
(1) A food safety auditor must report in writing to the appropriate enforcement agency the results of any audit or assessment carried out by the food safety auditor for the purposes of this Act.(2) A report under subsection (1) must:(a) be in the prescribed form, and(b) be submitted to the appropriate enforcement agency within 21 days after the completion of the audit or assessment, and(c) take account of any action taken before the submission of the report to remedy any deficiency identified by the food safety auditor.(3) A food safety auditor must indicate in a report of an audit under subsection (1):(a) whether or not the food safety auditor is of the opinion that the food business is being carried on in compliance with the requirements of the regulations relating to food safety programs, and(b) any such requirements that the food safety auditor is of the opinion are being contravened in relation to the food business and the manner in which they are being contravened.(4) A food safety auditor must indicate in a report of an assessment under subsection (1):(a) whether or not the food safety auditor is of the opinion that the food business is being carried on in compliance with the provisions of the Food Safety Standards, and(b) any such provisions that the food safety auditor is of the opinion are being contravened in relation to the food business and the manner in which they are being contravened.(5) A food safety auditor must report to the appropriate enforcement agency any contravention of this Act, the regulations relating to food safety programs, or the Food Safety Standards that comes to the food safety auditor’s attention in the course of carrying out an audit or assessment for the purposes of this Act:(a) that is an imminent and serious risk to the safety of food intended for sale, oras soon as possible but in any event within 24 hours after the contravention comes to the food safety auditor’s attention.(b) that will cause significant unsuitability of food intended for sale,(6) A food safety auditor must report in writing to the appropriate enforcement agency, giving reasons, if the food safety auditor considers that the priority classification of a food business that has been audited by the food safety auditor should be changed.(7) A copy of a report provided to the appropriate enforcement agency in relation to an audit or assessment must be given to the proprietor of the food business concerned.
96 Redetermination of frequency of auditing
(1) In this section:food safety program, in relation to a food business, means the food safety program (if any) required by the regulations to be prepared for the food business.priority classification means a priority classification set out in the priority classification system referred to in section 93.(2) A food safety auditor may determine that the audit frequency of a food safety program for a food business that has been audited by a food safety auditor be changed from the initial audit frequency applicable to a food business within the relevant priority classification to another audit frequency.(3) The audit frequency to which the initial frequency may be changed must be within the range of audit frequencies appropriate for food businesses within that relevant priority classification.(4) A food safety auditor must have regard to the following matters in making such a determination:(a) the compliance history of the food business concerned in relation to any requirements of the regulations regarding food safety programs and the requirements of the Food Safety Standards,(b) the audit compliance history (if any) established before the commencement of this subsection.
97 Certificates of authority of food safety auditors
(1) The Food Authority is to provide each food safety auditor with a certificate of authority as a food safety auditor.(2) The certificate of authority:(a) must state that it is issued under this Act, and(b) must give the name of the person to whom it is issued and bear a photograph of that person and the person’s signature, and(c) must state the date, if any, on which it expires, and(d) must specify any conditions to which the person’s approval is subject, and(e) must bear the signature of the person by whom it is issued and state the capacity in which the person is acting in issuing the certificate.
98 List of food safety auditors to be maintained
(1) The Food Authority is to prepare and maintain a list of food safety auditors.(2) The list is to be made publicly available and is to be revised at least annually.
99 Obstructing or impersonating food safety auditors
(1) A person must not, without reasonable excuse, resist, obstruct or attempt to obstruct, a food safety auditor in the exercise of the food safety auditor’s functions under this Act.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.(2) A person who impersonates a food safety auditor is guilty of an offence.Maximum penalty: 500 penalty units.(3) A person must not threaten, intimidate or assault a food safety auditor in the exercise of the auditor’s functions under this Act.Maximum penalty: 500 penalty units.s 99: Am 2010 No 108, Sch 1 [2].
Part 8 Regulation of food businesses
pt 8, hdg: Subst 2004 No 16, Sch 1 [16].
Division 1 Notification of conduct of food businesses
pt 8, div 1, hdg: Ins 2009 No 85, Sch 1 [1].
100 Notification of conduct of food businesses
(1) The proprietor of a food business must not conduct the food business unless the proprietor has given written notice, in the approved form, of the information specified in the Food Safety Standards that is to be notified to the appropriate enforcement agency before the business is conducted.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.(2) Subsection (1) does not require the giving of a notice in relation to the conduct of a food business that is primary food production unless a food safety scheme provides that subsection (1) applies to the food business or to a class of food businesses that includes the food business concerned.s 100: Am 2004 No 16, Sch 1 [17] [18].
101 Exemption in relation to notification of information
Section 21 (to the extent to which it requires notification of the information referred to in section 100) and section 100 do not apply to the following food businesses:(a) any food business that is not required by the Food Safety Standards to notify that information, or(b) any food business that is the subject of a licence or some other form of authorisation under this Act or under a law prescribed by the regulations.s 101: Am 2004 No 16, Sch 1 [19].
101A List of food businesses to be maintained
(1) Each enforcement agency is to prepare and maintain a list of:(a) each food business notified to it under section 100, and(b) each food business the subject of a licence granted by it under a food safety scheme.(2) The list is to be revised at least annually.(3) The list is to be made available for public inspection at an office of the relevant enforcement agency during ordinary business hours (whether in document or electronic form) or on the Internet.(4) The Food Authority may charge a fee, determined by the Authority on a cost-recovery basis, for any such inspection of the list (other than inspection on the Internet).(5) The Food Authority is to make copies of, or extracts from, the list available on request on payment of a reasonable copying fee determined by the Authority.s 101A (previously s 106): Subst 2004 No 16, Sch 1 [20]. Renumbered 2009 No 85, Sch 1 [2].
Division 2 Food safety schemes
pt 8, div 2, hdg: Ins 2009 No 85, Sch 1 [3].
102 Regulations relating to establishment of food safety schemes
(1) The regulations may prescribe food safety schemes in relation to a type, class or description of food, food business or activity carried out in respect of food.(2) In particular, the regulations prescribing a food safety scheme may make provision for or with respect to the following:(a) regulating the handling or sale of food,(b) prohibiting activities in relation to the handling or sale of food,(c) without limiting the generality of paragraphs (a) and (b), regulating the temperatures at which food must be kept,(d) the classification, marking or other identification of food,(e) requiring the licensing of activities in relation to the handling or sale of food,(f) requiring the licensing of any person, business, premises, vehicle or equipment in relation to the handling or sale of food,(g) the imposition of conditions on licences,(h) the suspension or cancellation of licences,(i) appeals from, or reviews of, decisions made under the regulations in relation to licences or applications for the granting of licences,(j) requiring the preparation, implementation, maintenance and monitoring of food safety programs for food businesses to ensure that the provisions of this Act and the regulations are complied with,(k) the certification and auditing of programs referred to in paragraph (j),(l) the manner of taking samples for the purposes of a food safety scheme,(m) the methods of analysis to be observed when carrying out analyses for the purposes of a food safety scheme,(n) establishing committees or other bodies with specified functions relating to the monitoring of a food safety scheme at a local level and the making of recommendations on the operation of a food safety scheme at that local level,(o) providing for the funding of those committees or bodies by the Food Authority and the accounting by those committees or bodies of any money received from the Food Authority,(p) the assessment of risks associated with the handling or sale of different types, classes or descriptions of food or the carrying out of different activities relating to food as part of the same business operation,(q) requiring the preparation of plans in the event of the need for a recall of any food,(r) requiring persons involved in the handling or sale of food to possess specified qualifications, skills, knowledge or expertise,(s) designating the persons who are to be responsible for compliance with the obligations imposed by the regulations,(t) requiring the giving of information, returns or notices to an enforcement agency,(u) requiring the collection of licence fees and charges on behalf of an enforcement agency and the remission of any such fees or charges to the enforcement agency,(v) the deduction of licence fees and other charges owed to an enforcement agency from amounts otherwise payable to the person liable for the fees or charges,(w) the liability of persons with respect to amounts for licence fees or other charges collected on behalf of an enforcement agency,(x) authorising the imposition of a levy under section 117C and providing for the amount of the levy, or the basis on which it is to be calculated, and for its recovery,(y) establishing a method of consultation with the relevant industry or sector of industry for the purposes of the ongoing review of the operation of the food safety scheme,(z) establishing consultative bodies for the purposes of paragraph (y) and providing for the membership and procedure of those bodies (including providing, where appropriate, for consumer representation on those bodies),(aa) enabling an enforcement agency to undertake functions relating to the education and training of persons in safe food practices in respect of the type, class or description of food, food business or activity to which the food safety scheme relates,(ab) without limiting paragraph (d), requiring the branding of sheep meat to identify whether it is lamb or hogget, regardless of whether the purpose of the requirement relates to the safety of meat for human consumption.(3) Without limiting subsection (2) (g), the regulations may permit the imposition of conditions of the following kinds on licences issued under a food safety scheme:(a) a condition prohibiting the passing on of costs related to licences, or other fees charged under this Act, to another person subject to licence or other fees under this Act,(b) a condition requiring a person licensed under this Act to collect, on behalf of the relevant enforcement agency, licence fees or other charges payable by another person under this Act and to remit those fees or charges to the enforcement agency.(4) For the purpose of preventing risks to the safety of food for human consumption, the regulations establishing a food safety scheme may extend to anything that is intended as food for animal consumption, or the carrying on of a business or any activity involving the handling or sale of anything that is intended as food for animal consumption.(5) It is to be presumed, in the absence of evidence to the contrary, that a regulation relating to anything that is intended as food for animal consumption was made for the purpose referred to in subsection (4).(6)–(10) (Repealed)s 102: Subst 2004 No 16, Sch 1 [20]. Am 2006 No 120, Sch 1.12 [1]; 2007 No 47, Sch 1 [5].
103 Consultation to be undertaken on regulations establishing food safety schemes
(1) The Minister is to ensure that consultation with the relevant industry or sector of industry is undertaken before the making of any regulation that establishes a food safety scheme.(2) The provisions of section 5 (Regulatory impact statements) of the Subordinate Legislation Act 1989 apply to a regulation that establishes a food safety scheme in the same way as they apply to a principal statutory rule (within the meaning of that Act).(3) In addition to any matters that are required to be included in a regulatory impact statement under the Subordinate Legislation Act 1989, the following matters are to be included in such a statement prepared in relation to a proposed regulation establishing a food safety scheme:(a) an assessment of food safety risks in the industry or sector of industry to which the food safety scheme relates in accordance with national and international standards for risk assessment,(b) a statement of whether the food safety scheme is based on national standards or supplements national standards, and for those standards imposed by the food safety scheme that are not national standards, an explanation of why those standards are required,(c) an explanation as to whether the food safety scheme is performance-based or prescriptive, or a combination of both, and the rationale for the approach adopted taking into account the assessed food safety risks in the relevant industry or sector of industry and the capacity of the people involved in that industry or sector of industry to deal adequately with those risks,(d) an explanation of the scope of the food safety scheme, including the persons who have responsibilities under the scheme,(e) an explanation of any agreements involving the Food Authority and other government agencies as to the regulation of the food, food business or activity carried out in respect of food to which the food safety scheme relates,(f) if a food safety scheme includes a licensing scheme, an explanation of why the licensing scheme is necessary to ensure the safety of food,(g) an assessment of any quality assurance scheme operating in the industry or sector of industry to which the food safety scheme relates, including an assessment of the extent to which the scheme satisfies the requirements of any relevant national standard.(4) Consultation is taken to have been undertaken on a food safety scheme for the purposes of subsection (1) if notice of the proposed regulation establishing the food safety scheme has been published in accordance with section 5 (2) (a) of the Subordinate Legislation Act 1989, consultation on the regulation has taken place in accordance with section 5 (2) (b) of that Act and comments and submissions received have been appropriately considered in accordance with section 5 (2) (c) of that Act.s 103: Subst 2004 No 16, Sch 1 [20].
104 Offences relating to food safety schemes
(1) A person who handles or sells food in a manner that contravenes a provision of a food safety scheme is guilty of an offence.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.(2) A person who carries on any food business or activity for which a licence is required by the regulations is guilty of an offence unless the person is the holder of such a licence.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.(3) The holder of a licence granted under the regulations who contravenes or fails to comply with a condition of the licence is guilty of an offence.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.(4) The proprietor of a food business must ensure that any requirement imposed by a food safety scheme in relation to the preparation, implementation, maintenance, monitoring, certification or auditing of a food safety program for the food business is complied with.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.(5) The proprietor of a food business must ensure that any food safety program required to be prepared by a food safety scheme in relation to the food business is audited at least as frequently as is determined under section 93 (1), or as redetermined under section 96, in relation to the food business.Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.Note—An offence against subsection (1)–(4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.s 104: Subst 2004 No 16, Sch 1 [20]. Am 2012 No 97, Sch 1.13 [12].
105 Industry consultation
(1) The Food Authority is to ensure that consultation on the following matters is undertaken with the relevant industry or sector of industry to which a food safety scheme relates and that such consultation is undertaken in accordance with the provisions of the food safety scheme:(a) the continuing operation of a food safety scheme,(b) any proposed amendment of a food safety scheme.(2) The Minister may confer additional functions on any consultative body established by a food safety scheme relating to any or all of the following:(a) the provision of advice to the Minister on matters relating to the relevant sector of industry the subject of the scheme,(b) assisting in achieving industry support for the implementation of the scheme,(c) assisting in promoting the safe handling of the types of food covered by the scheme.s 105: Subst 2004 No 16, Sch 1 [20].
Division 3 Requirements relating to food safety supervisors
pt 8, div 3: Ins 2009 No 85, Sch 1 [4].
106 Definitions
In this Division:approved training organisation means a registered training organisation approved under section 106H.food safety supervisor—see section 106B.food safety supervisor certificate—see section 106B (3).food to which this Division applies—see section 106A.mobile catering business means a food business that provides food catering services involving:(a) the transporting of food to which this Division applies to the location at which it is to be served, whether or not it is to be served by the food business, andbut does not include a food business commonly known as a takeaway food business or home delivery food business or that sells the food from temporary premises.(b) the processing of the food, whether or not at the location to which it is transported,potentially hazardous food means food that is required to be kept at more than or less than a particular temperature to minimise the growth of any pathogenic micro-organisms that may be present in the food or to prevent the formation of toxins in the food.process, in relation to food, means to do anything to the food in order to prepare it for sale, including (but not limited to) chopping, cooking, drying, fermenting, heating, pasteurising, thawing or washing.ready-to-eat food means food that is in a state in which it is ordinarily consumed, but does not include nuts in the shell or raw fruit or vegetables that are intended to be hulled, peeled or washed by the consumer.temporary premises means premises comprising a tent or stall or the like from which food is sold by retail on an occasional basis only, such as for a fete, fair, market or other event.s 106: Ins 2009 No 85, Sch 1 [4]. Am 2013 No 111, Sch 1.3 [1].
106A Application of Division to certain food
This Division applies to food that:(a) is ready-to eat food, and(b) is potentially hazardous food, and(c) is not packaged in a way that is prescribed by the regulations as prepackaged.ss 106A–106D: Ins 2009 No 85, Sch 1 [4].
106B Food safety supervisors
(1) For the purposes of this Act, a food safety supervisor for premises is a person who:(a) holds a food safety supervisor certificate that has been issued within the immediately preceding period of 5 years, and(b) does not hold the position of food safety supervisor for any other premises or for a mobile catering business, and(c) has the authority to supervise other persons handling food at, or from, the premises and to ensure that the handling is done safely.(2) For the purposes of this Act, a food safety supervisor for a mobile catering business is a person who:(a) holds a food safety supervisor certificate that has been issued within the immediately preceding period of 5 years, and(b) does not hold the position of food safety supervisor for any other such business or for the premises of any other food business, and(c) has the authority to supervise other persons handling food in the course of the carrying on of the business and to ensure that the handling is done safely.(3) A food safety supervisor certificate is a certificate stating that the person to whom it is issued is qualified to hold the position of a food safety supervisor for the purposes of this Act and that has been issued in accordance with the regulations by an approved training organisation or by another person or body prescribed by the regulations.(4) The regulations may make provision for or with respect to the issuing of food safety supervisor certificates, including the qualifications that a person must have to be issued with a food safety supervisor certificate.(5) Without limiting subsection (4), any such regulation may provide for the Food Authority to determine those qualifications or any aspect of those qualifications.(6) In making a determination in relation to qualifications, the Food Authority is to be satisfied that a person holding those qualifications will know how to recognise, prevent and alleviate the hazards associated with the handling of food.(7) Nothing in this Division prevents:(a) the proprietor of a food business from holding the position of food safety supervisor for premises so long as the proprietor complies with the requirements of subsection (1), or(b) the proprietor of a mobile catering business from holding the position of food safety supervisor for the business so long as the proprietor complies with the requirements of subsection (2), or(c) more than one person holding the position of food safety supervisor in respect of particular premises or a mobile catering business.ss 106A–106D: Ins 2009 No 85, Sch 1 [4].
106C Appointment of food safety supervisor for premises
(1) The proprietor of a food business must ensure that before any food to which this Division applies is processed and sold by retail on premises in the course of carrying on the business at least one food safety supervisor has been appointed for the premises.(2) The proprietor of a food business must ensure that at all times at which food to which this Division applies is processed and sold by retail on premises in the course of carrying on the food business there continues to be at least one person appointed as food safety supervisor for the premises.(3) It is a defence to a prosecution for an offence against subsection (2) if the proprietor of the food business concerned establishes that:(a) a person had been appointed as food safety supervisor for the relevant premises but had ceased to be appointed as food safety supervisor, and(b) after that person had ceased to be so appointed and before the appointment (if any) of another person as food safety supervisor for the premises, food to which this Division applies was processed and sold by retail on the premises on not more than 30 days (whether or not consecutive).(4) This section does not apply to a food business that is a mobile catering business.Maximum penalty: 50 penalty units in the case of an individual and 100 penalty units in the case of a corporation.ss 106A–106D: Ins 2009 No 85, Sch 1 [4].
106D Appointment of food safety supervisor for mobile catering business
(1) The proprietor of a mobile catering business must ensure that before food to which this Division applies is processed in the course of the business at least one food safety supervisor has been appointed for the business.(2) The proprietor of a mobile catering business must ensure that at all times at which food to which this Division applies is processed in the course of carrying on the business there continues to be at least one person appointed as food safety supervisor for the business.(3) It is a defence to a prosecution for an offence against subsection (2) if the proprietor of the mobile catering business concerned establishes that:(a) a person had been appointed as food safety supervisor for the business but had ceased to be appointed as food safety supervisor, and(b) after that person had ceased to be so appointed and before the appointment (if any) of another person as food safety supervisor for the business, food to which this Division applies was processed in the course of the business on not more than 30 days (whether or not consecutive).Maximum penalty: 50 penalty units in the case of an individual and 100 penalty units in the case of a corporation.ss 106A–106D: Ins 2009 No 85, Sch 1 [4].
106E, 106F (Repealed)
s 106E: Ins 2009 No 85, Sch 1 [4]. Rep 2013 No 111, Sch 1.3 [2].
s 106F: Ins 2009 No 85, Sch 1 [4]. Rep 2013 No 111, Sch 1.3 [2].
106G Inspection of food safety supervisor certificates
(1) If a person is appointed for the purposes of this Division as food safety supervisor for premises on which food to which this Division applies is processed and sold by retail in the course of carrying on a food business, the proprietor of the food business must ensure that a copy of the person’s food safety supervisor certificate is kept on the premises and is produced for inspection on request by an authorised officer.(2) If a person is appointed for the purposes of this Division as food safety supervisor for a mobile catering business, the proprietor of the business must ensure that a copy of the person’s food safety supervisor certificate is kept at the proprietor’s business address and is produced for inspection on request by an authorised officer.Maximum penalty: 25 penalty units in the case of an individual and 50 penalty units in the case of a corporation.s 106G: Ins 2009 No 85, Sch 1 [4].
106H Approval of registered training organisations to issue food safety supervisor certificates
(1) The Food Authority may approve a registered training organisation (within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth) for the purposes of issuing food safety supervisor certificates.(2) Regulations may be made for or with respect to approvals granted under this section.(3) Without limiting subsection (2), the regulations may make provision for or with respect to the following:(a) applications for approvals,(b) the granting of approvals,(c) conditions of approvals,(d) duration of approvals,(e) suspension and revocation of approvals.(4) The Food Authority is to prepare and maintain a list of approved training organisations.(5) The list is to be made publicly available and is to be revised at least annually.s 106H: Ins 2009 No 85, Sch 1 [4]. Am 2016 No 55, Sch 1.10.
106I Fees and charges payable under Division
(1) The regulations may make provision for or with respect to the following:(a) fees and charges payable to the Food Authority under this Division, including charges payable to the Food Authority by an approved training organisation or other person or body in relation to the issue by the organisation, person or body of food safety supervisor certificates,(b) the imposition of fees and charges by an approved training organisation or other person or body for the issuing of food safety supervisor certificates (but not fees and charges relating to training provided by any such organisation, person or body), including limiting the imposition of any such fee or charge.(2) (Repealed)s 106I: Ins 2009 No 85, Sch 1 [4]. Am 2013 No 111, Sch 1.3 [3].
106J Exemptions from operation of Division
(1) The regulations may exempt, with or without conditions, any class of persons, food businesses, premises, food or activities from the operation of all or any of the provisions of this Division.(2) Any such exemption has no effect during any period in which a condition to which it is subject is not complied with.s 106J: Ins 2009 No 85, Sch 1 [4].
Division 4 Requirements relating to display of nutritional information for food
pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
106K Definitions
In this Division:means a menu, in printed or electronic form, that lists or otherwise shows one or more items of food and that:(a) is on a board, poster, leaflet or the like at the premises from which the item or items of food in the menu are sold, or(b) is distributed or available outside of the premises from which the item or items of food in the menu are sold by means of the internet or a printed leaflet.ready-to-eat food means food that is in a state in which it is ordinarily consumed, but does not include nuts in the shell or raw fruit or vegetables that are intended to be hulled, peeled or washed by the consumer.sell means sell as defined in section 4 (1), but by retail only.standard food item—see section 106L.standard food outlet—see section 106M.pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
106L Meaning of “standard food item”
(1) In this Division, standard food item means an item of ready-to-eat food for sale that is sold in servings that are standardised for portion and content and that:(a) is listed or otherwise shown on a menu, orand includes any item of ready-to-eat food for sale that is of a kind, class or description prescribed by the regulations.(b) is displayed for sale with a price tag or label or an identifying tag or label,(2) If a number of standard food items are shown or displayed for sale as referred to in subsection (1) as a combination, the combination is to be treated for the purposes of this Division as a single standard food item.(3) If an item of food referred to in subsection (1) is shown or displayed for sale in different standard sizes or portions (for example, small, medium or large), each standard size or portion of the item of food is to be treated as a separate standard food item.(4) Despite subsection (1), standard food item does not include an item of food that is packaged in a way that is prescribed by the regulations as prepackaged.pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
106M Meaning of “standard food outlet”
(1) In this Division, a standard food outlet means premises at which standard food items are sold by a food business if:(a) the food business sells standard food items at other premises or while operating in a chain of food businesses that sell standard food items, and(b) at least one of the standard food items that are sold at the premises has been standardised for portion and content so as to be substantially the same as standard food items of that type sold at those other premises or by the other food businesses in the chain.(2) For the purposes of this section, a food business is operating in a chain of food businesses that sell standard food items if:(a) it is operating as one of a group of food businesses that sell standard food items under franchise arrangements with a parent business or under common ownership or control, or(b) it sells standard food items under the same trading name as a group of other food businesses that sell standard food items.pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
106N Requirement for certain standard food outlets to display nutritional information
(1) This section applies to a standard food outlet that is of a kind, class or description prescribed by the regulations.(2) The proprietor of a standard food outlet to which this section applies must ensure that:(a) nutritional information of a kind prescribed by the regulations is displayed in relation to standard food items that are sold at the outlet, and(b) the nutritional information is determined in accordance with any requirements of the regulations for nutritional information of that kind, and(c) the nutritional information is displayed in the manner and locations prescribed by the regulations for nutritional information of that kind.(3) A person must not intentionally contravene subsection (2).Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.(4) A person must not contravene subsection (2).Maximum penalty: 100 penalty units in the case of an individual and 500 penalty units in the case of a corporation.(5) If, on the trial of a person charged with an offence against subsection (3) the court is not satisfied that the person committed the offence but is satisfied that the person committed an offence against subsection (4), the court may find the person not guilty of the offence charged but guilty of an offence against subsection (4), and the person is liable to punishment accordingly.pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
106O Voluntary display of nutritional information to meet certain requirements
(1) This section applies to a standard food outlet other than a standard food outlet to which section 106N applies.(2) The proprietor of a standard food outlet to which this section applies must not display nutritional information of a kind prescribed by the regulations in relation to standard food items that are sold at the outlet unless the nutritional information:(a) is determined in accordance with any requirements of the regulations for nutritional information of that kind, and(b) is displayed in the manner and locations prescribed by the regulations for nutritional information of that kind.Maximum penalty: 100 penalty units in the case of an individual and 500 penalty units in the case of a corporation.pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
106P Regulations relating to explanatory material about nutritional information
The regulations may make provision for or with respect to regulating or prohibiting the display or distribution by a standard food outlet of explanatory material or any other material about nutritional information for food or for any type or class of food.pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
106Q Exemptions from operation of Division
(1) The regulations may exempt, with or without conditions, any class of persons, food businesses, premises, food or activities from the operation of all or any of the provisions of this Division.(2) Any such exemption has no effect during any period in which a condition to which it is subject is not complied with.pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
106R 2012 review of Division and regulations under the Division
(1) The Minister is to review this Division and any regulations made under this Division to determine whether:(a) the policy objectives of this Division and those regulations remain valid, and(b) the terms of this Division and those regulations remain appropriate for securing those objectives, and(c) the terms of this Division or those regulations, or both, should be amended so that the nutritional information to be displayed includes information relating to fat and salt.(2) The review is to be undertaken as soon as possible after 1 February 2012.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after that date.pt 8, div 4 (ss 106K–106R): Ins 2010 No 108, Sch 1 [3].
Part 9 Administration
Division 1 NSW Food Authority
pt 9, div 1: Subst 2004 No 16, Sch 1 [21].
107 Constitution of NSW Food Authority
(1) There is constituted by this Act a body corporate with the corporate name of the NSW Food Authority.(2) The affairs of the Food Authority are to be managed by the Chief Executive Officer.(3) Any act, matter or thing done in the name of, or on behalf of, the Food Authority by the Chief Executive Officer, or with the authority of the Chief Executive Officer, is taken to have been done by the Food Authority.(4) The Food Authority is, for the purposes of any Act, a statutory body representing the Crown.Note—Section 50 of the Interpretation Act 1987 provides for the powers of a statutory corporation.s 107: Rep 2004 No 16, Sch 1 [20]. Ins 2004 No 16, Sch 1 [21]. Am 2009 No 96, Sch 8 [3].
108 Functions of Food Authority
(1) The Food Authority has such functions as are conferred or imposed on it by or under this or any other Act.(2) In particular, the Food Authority has the following functions:(a) to keep under review the construction, hygiene and operating procedures of premises, vehicles and equipment used for the handling or sale of food,(b) to provide advice or recommendations to the Minister on the establishment, development or alteration of food safety schemes,(c) to regulate the handling and sale of food the subject of food safety schemes to ensure that it is safe and suitable for human consumption,(d) to encourage businesses engaged in the handling or sale of food to minimise food safety risks,(e) to undertake or facilitate the education and training of persons to enable them to meet the requirements of the Food Standards Code and food safety schemes,(f) to provide advice, information, community education and assistance in relation to matters connected with food safety or other interests of consumers in food,(f1) to make recommendations as to the maximum fees to be charged by local councils in relation to inspections carried out under section 37 by authorised officers of enforcement agencies (other than inspections in connection with premises the subject of a licence under a food safety scheme or the granting of a licence under a food safety scheme),(g) to carry out such research as is necessary in order to perform its other functions.(3) (Repealed)s 108: Subst 2004 No 16, Sch 1 [21]. Am 2006 No 2, Sch 4.18 [1]; 2007 No 47, Sch 1 [6]; 2015 No 58, Sch 3.35 [3].
109 Ministerial control of Food Authority
The Food Authority is, in the exercise of its functions, subject to the control and direction of the Minister, except in relation to the following:(a) the contents of any advice, report or recommendation given to the Minister,(b) decisions whether to grant, suspend or cancel a licence held by a particular person under the regulations,(c) decisions whether to institute criminal proceedings in a particular case.s 109: Subst 2004 No 16, Sch 1 [21].
109A Staff
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Food Authority to exercise its functions.Note—Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Authority makes use of) may be referred to as officers or employees, or members of staff, of the Authority. Section 47A of the Constitution Act 1902 precludes the Authority from employing staff.s 109A: Ins 2004 No 16, Sch 1 [21]. Rep 2006 No 2, Sch 4.18 [2]. Ins 2015 No 58, Sch 3.35 [4].
109B Use of consultants and contractors
The Food Authority may engage such consultants and contractors as may be necessary or convenient to exercise any of the functions of the Food Authority.s 109B: Ins 2004 No 16, Sch 1 [21].
109C Private corporations
(1) The Food Authority may, subject to subsection (2):(a) form, or participate in the formation of, private corporations, and(b) acquire interests in private corporations, andwhether or not the activities or proposed activities of any such private corporation are related to food safety.(c) sell or otherwise dispose of interests in private corporations,(2) The Food Authority must not, without the approval of the Minister:(a) form, or participate in the formation of, a private subsidiary corporation, or(b) acquire an interest in a private corporation so that, as a result of the acquisition, the corporation becomes a private subsidiary corporation, or(c) sell or otherwise dispose of any interest in a private subsidiary corporation so that, as a result of the sale or disposal, it ceases to be a private subsidiary corporation.(3) (Repealed)(4) A private subsidiary corporation is not, and does not represent, the Crown.s 109C: Ins 2004 No 16, Sch 1 [21]. Am 2014 No 26, Sch 3.2 [3]
109D Funding of private subsidiary corporations
(1) The Food Authority may, out of its funds:(a) pay for the formation of a private corporation, or for other costs incurred, under section 109C, and(b) with the approval of the Minister, make grants of money to a private subsidiary corporation for use in the exercise of its functions.(2) The Food Authority may, with the approval of the Minister, transfer any of its assets to a private subsidiary corporation.s 109D: Ins 2004 No 16, Sch 1 [21].
109E Delegation
(1) The Food Authority may delegate to:(a) a member of staff of the Food Authority (whether by name or by reference to the holder of an office), or(b) an authorised officer, or(c) a private subsidiary corporation, or(d) the holder of an office prescribed by the regulations, orany function of the Food Authority under this Act that is not specified in subsection (2).(e) an enforcement agency or a person holding a position prescribed by the regulations as the head of an enforcement agency,(2) The following functions of the Food Authority cannot be delegated:(a) the power of delegation conferred by this section,(b) any function under Part 3 (Emergency powers),(c) any function under section 111B (Conditions and limitations on exercise of functions by enforcement agencies).(3) A delegate may sub-delegate to a person referred to in subsection (1) any function delegated by the Food Authority if the delegate is authorised in writing to do so by the Food Authority.(4) A function must not be delegated under this section to an enforcement agency without the consent in writing of the enforcement agency.s 109E: Ins 2004 No 16, Sch 1 [21]. Am 2007 No 47, Sch 1 [7]–[9].
Division 2 Enforcement agencies
pt 9, div 2, hdg: Subst 2007 No 47, Sch 1 [10].
110 Definitions
In this Division:guidelines means the guidelines issued under section 111C, as in force from time to time.relevant body means a local council, or the Chief Executive of the Office of Environment and Heritage (but only in respect of Kosciuszko National Park).s 110: Subst 2007 No 47, Sch 1 [11]. Am 2015 No 58, Sch 3.35 [5].
111 Appointment of enforcement agencies
(1) The Food Authority may appoint a relevant body to be an enforcement agency for the purposes of this Act.(2) The Food Authority is not to appoint a relevant body as an enforcement agency unless the Food Authority:(a) has consulted with the relevant body and considered any representations made by the relevant body in accordance with the guidelines, and(b) has considered the resources and skills that will be available to the relevant body to enable the exercise of the functions of an enforcement agency that are proposed to be conferred or imposed on the relevant body, and(c) in the case of a local council, has considered any representations made by another local council in accordance with the guidelines as to the other local council’s willingness to exercise the functions of an enforcement agency in the area concerned and the resources and skills that will be available to that other local council to enable the exercise of such functions.(3) An appointment:(a) is to be by instrument in writing given to the relevant body concerned, and(b) is to contain any limitations or conditions relating to the exercise of functions by the enforcement agency or the type of functions that may be exercised by the enforcement agency that are imposed under section 111B (whether by reference to a category of functions to be exercised by the enforcement agency or otherwise), and(c) takes effect from a day specified in the instrument of appointment.(4) The Food Authority may appoint a local council as an enforcement agency in respect of any or all of the following:(a) its own local government area or part of its own local government area,(b) another local government area or part of another local government area, but only after consultation with the local council of that other area,(c) an area that is not within a local government area.(5) Nothing in this Act prevents the Food Authority from appointing more than one enforcement agency in respect of the same area so long as each of those enforcement agencies is only authorised to exercise functions under this Act in relation to that area that are different from the functions that may be exercised under this Act in relation to that area by any other enforcement agency.s 111: Subst 2007 No 47, Sch 1 [11].
111A Variation or revocation of appointment of enforcement agency
(1) The Food Authority may vary or revoke an appointment of a relevant body as an enforcement agency by notice in writing given to the enforcement agency concerned.(2) A variation or revocation of an appointment has effect from a day specified in the notice of the variation or revocation, being a day occurring after the day on which the notice is given under this section.ss 111A–111D: Ins 2007 No 47, Sch 1 [11].
111B Conditions and limitations on exercise of functions by enforcement agencies
(1) The Food Authority may, in writing, impose conditions or limitations on the exercise of functions under this Act by any enforcement agency and may vary or revoke any such condition or limitation.(2) The Food Authority may not take action under subsection (1) unless it has consulted with the person or body who or which is, or is proposed to be, the enforcement agency.(3) If the person or body concerned is a relevant body appointed or proposed to be appointed as an enforcement agency under section 111, the imposition, variation or revocation of any such condition or limitation is to be done as part of the appointment under section 111 or in accordance with section 111A as a variation of the appointment.ss 111A–111D: Ins 2007 No 47, Sch 1 [11].
111C Guidelines relating to appointment of enforcement agencies
(1) The Food Authority may issue guidelines in relation to any or all of the following matters:(a) the different categories of functions that may be exercised by enforcement agencies,(b) an explanation of the nature of the obligations in respect of those different categories of functions,(c) the matters to be taken into account by the Food Authority when determining the appropriate functions to be exercised by an enforcement agency,(d) the making of representations to the Food Authority by a relevant body as to whether or not the relevant body should be appointed as an enforcement agency,(e) the making of representations to the Food Authority by a relevant body in relation to the appropriate types or categories of functions to be exercised by the relevant body as an enforcement agency,(f) the provision of information to the Food Authority by a relevant body to enable the consideration by the Food Authority of the matters referred to in section 111 (2),(g) the time within which any such representations must be made or information must be provided.(2) The exercise of functions under this Act, or the appointment of any enforcement agency, is not affected by anything contained in the guidelines.ss 111A–111D: Ins 2007 No 47, Sch 1 [11].
111D Functions of enforcement agencies in relation to this Act
Subject to section 135, it is the duty of an enforcement agency to exercise the functions conferred or imposed on it by or under this Act or delegated to it under this Act.ss 111A–111D: Ins 2007 No 47, Sch 1 [11].
112 Exercise of functions by enforcement agencies
(1) The Food Authority may adopt national guidelines relating to the exercise of its functions under this Act and may require other enforcement agencies and authorised officers to adopt those guidelines in the carrying out of their functions under this Act.(2) In this section, national guidelines means guidelines prepared for the purposes of this section by the Commonwealth Food Authority.
113 Reports by enforcement agencies
(1) An enforcement agency for which an appointment is in force under this Division is to report to the Food Authority on the exercise of functions under this Act by or on behalf of the agency.(2) The reports referred to in subsection (1) are to be made in accordance with protocols prepared by the Food Authority in consultation with the Food Regulation Forum.(3) Any other enforcement agency (except the Food Authority) is to report to the Food Authority, at such intervals as the Food Authority requires, on the exercise of functions under this Act by or on behalf of the agency.(4) In addition to any report required under subsection (1) or (3), an enforcement agency is to forward to the Food Authority details of any proceedings for an offence under this Act or the regulations taken by or on behalf of the agency within 21 days after the proceedings are finally dealt with.s 113: Subst 2007 No 47, Sch 1 [12].
113A Publication of information relating to enforcement agencies
(1) The Food Authority is to keep a record of the following:(a) each appointment of an enforcement agency under this Division, including any limitations and conditions in relation to the appointment and any variation or revocation of an appointment,(b) relevant enforcement agencies for the purposes of Division 3 of Part 8.(2) The record is to be published on the Food Authority’s internet website, is to be updated regularly and is to indicate when it was last updated.s 113A: Ins 2007 No 47, Sch 1 [13]. Am 2009 No 85, Sch 1 [5].
Division 3 Appointment of authorised officers
114 Appointment of authorised officers
(1) An enforcement agency may appoint a person to be an authorised officer for the purposes of this Act, but only if the enforcement agency considers the person has appropriate qualifications or experience to exercise the functions of an authorised officer.(2) Each enforcement agency is to prepare and maintain a list of authorised officers appointed by it.(3) Unless sooner revoked, the appointment of an authorised officer by a person or body ceases to have effect if the person or body ceases to be an enforcement agency.s 114: Am 2007 No 47, Sch 1 [14].
115 Certificates of authority
(1) An enforcement agency is to provide each authorised officer appointed by it with a certificate of authority as an authorised officer.(2) The functions of an authorised officer may be limited by the authorised officer’s certificate of authority.(3) The certificate of authority:(a) must state that it is issued under this Act, and(b) must give the name of the person to whom it is issued and bear a photograph of that person and the person’s signature, and(c) must state the date, if any, on which it expires, and(d) must specify any conditions to which the person’s authority is subject, and(e) must bear the signature of the person by whom it is issued and state the capacity in which the person is acting in issuing the certificate.(4) An authorised officer is required to produce the certificate of authority:(a) if requested to do so by the proprietor of a food business whose premises are entered by the authorised officer, or(b) if requested to do so by a person whom the authorised officer requires to produce anything or to answer any question.
Division 3A Food Regulation Forum
pt 9, div 3A: Ins 2007 No 47, Sch 1 [15].
115A Food Regulation Forum
(1) The Minister is to establish a Food Regulation Forum consisting of the following members:(a) the Chief Executive Officer or a nominee of the Chief Executive Officer,(b) 2 persons appointed by the Minister, on the nomination of the Chief Executive Officer, who are members of staff of the Food Authority,(c) one person who the Minister is satisfied has experience in local government matters and who is appointed by the Minister with the concurrence of the President of the Local Government and Shires Association of New South Wales,(d) 3 persons appointed by the Minister, on the nomination of the Local Government and Shires Association of New South Wales, to represent that Association,(e) one person appointed by the Minister, on the nomination of the Local Government Managers Australia, NSW, to represent that body,(f) 2 persons appointed by the Minister, on the nomination of the Australian Institute of Environmental Health, NSW Division, to represent that Institute,(g) 2 persons appointed by the Minister, on the nomination of the Development and Environmental Professionals’ Association, to represent that Association.(2) The person appointed under subsection (1) (c) is to be the Chair of the Forum.(3) If a nomination referred to in subsection (1) (d), (e), (f) or (g) is not made by a body within such time as the Minister allows, the Minister may appoint a person the Minister considers to be suitable to represent that body in place of a person required to be so nominated.(4) A person appointed by the Minister under this section holds office for the term specified in the instrument of appointment but may be removed from office by the Minister.(5) Subject to any directions of the Minister, the Forum is to determine the procedure of the Forum, including the calling and conduct of meetings of the Forum, the vacation of office of members, the filling of vacancies and the appointment of deputies.s 115A: Ins 2007 No 47, Sch 1 [15]. Am 2009 No 96, Sch 8 [3]; 2013 No 111, Sch 2.7 [1] [2].
115B Functions of Food Regulation Forum
The Food Regulation Forum has the following functions:(a) to evaluate, and provide advice to the Food Authority on, guidelines issued from time to time under section 111C,(b) to evaluate, and provide advice on the improvement of, arrangements for the sharing of functions under this Act by the Food Authority and other enforcement agencies,(c) to advise the Food Authority on a program to support and assist the role of other enforcement agencies in food regulation,(d) to assist the Food Authority in the preparation of protocols for enforcement agencies exercising functions under this Act, including protocols relating to any or all of the following:(i) emergency situations where there is an imminent threat to food safety,(ii) the taking of food recall action where the Food Authority determines such action is required,(iii) the use of the facilities and resources of NSW Health for the analysis of food samples,(iv) the making of reports to the Food Authority on the exercise of functions under this Act,(v) the exchange of information for the purposes of this Act by enforcement agencies with other persons and bodies authorised to give or receive such information,(e) to assist in the preparation of reports by the Food Authority on food regulation in New South Wales,(f) to advise the Food Authority on appropriate bodies to which particular issues relating to food regulation might be referred for assistance or advice,(g) any other function conferred or imposed on it by or under this or any other Act.s 115B: Ins 2007 No 47, Sch 1 [15].
Division 4 Advisory committees
116 Establishment of advisory committees
(1) The Minister may establish advisory committees to assist the Food Authority in the exercise of its functions.(2) An advisory committee is to consist of members appointed from persons having expertise in one or more of the following areas:(a) the food industry,(b) public health,(c) the interests of consumers,(d) the enforcement of food legislation.(3) In addition, the Minister may appoint as members of an advisory committee persons having expertise in nutrition, toxicology, microbiology and food technology and such other persons as the Minister considers have appropriate expertise, qualifications or experience as will enable them to make a valuable contribution to the advisory committee.(4) The Minister may determine the term of office and remuneration of members and the procedure of an advisory committee.
117 Functions of advisory committees
An advisory committee has the following functions:(a) to provide advice to the Minister and the Food Authority on any issue relating to food as the Minister or the Food Authority may require,(b) such other advisory functions relating to food as the Minister may determine.
Division 5 Finance
pt 9, div 5: Ins 2004 No 16, Sch 1 [22].
117A Food Authority Fund
(1) There is to be established in the Special Deposits Account a Food Authority Fund (the Fund) into which is to be paid:(a) all money advanced to the Food Authority by the Treasurer or appropriated by Parliament for the purposes of the Food Authority, and(b) all money directed or authorised to be paid into the Fund by or under this or any other Act, and(c) the proceeds of the investment of money in the Fund, and(d) all money received by the Food Authority under this Act from any other source.(2) The Fund is to be applied for the purposes of enabling the Food Authority to exercise its functions under this Act and, in such cases as the Food Authority determines, enabling another enforcement agency to exercise its functions under this Act.(3) All expenditure incurred by the Food Authority under this Act is to be paid from the Fund.(4) A separate account is to be maintained in the Fund in relation to each levy under section 117C imposed in respect of a particular industry or sector of industry.s 117A: Ins 2004 No 16, Sch 1 [22]. Am 2007 No 47, Sch 1 [16].
117B Investment
The Food Authority may invest money held by it:(a) in the manner authorised by the Public Authorities (Financial Arrangements) Act 1987, or(b) if that Act does not confer power on the Food Authority to invest the money, in any other manner approved by the Minister with the concurrence of the Treasurer.s 117B: Ins 2004 No 16, Sch 1 [22].
117C Industry levies
(1) The Food Authority may levy a contribution towards the cost of the administration of this Act on any person, or member of a class of persons, who is subject to the requirements of a food safety scheme, but only if authorised to do so by the provisions of a food safety scheme.(2) A levy under this section is to be of an amount, or calculated on a basis, specified in the relevant food safety scheme.(3) The Food Authority is to ensure, as far as is reasonably practicable, that money received from levies imposed under this section in relation to an industry or sector of industry that is subject to a food safety scheme is not used to cross-subsidise the expenses of the Food Authority in carrying out its functions in relation to any other industry or sector of industry that is subject to a food safety scheme.(4) Nothing in this section prevents a cost of a kind referred to in this section from being covered by a licence fee charged under a food safety scheme.s 117C: Ins 2004 No 16, Sch 1 [22].
117D Payment of penalties and fines into Food Authority Fund
(1) Any monetary penalty or fine imposed for an offence under this Act or the regulations and recovered in proceedings instituted by the Food Authority is to be paid into the Food Authority Fund.(2) If the amount paid into the Food Authority Fund under this section in any financial year exceeds the maximum amount for the financial year, the amount of the excess is to be paid into the Consolidated Fund.(3) The maximum amount for a financial year is $250,000 or, if the regulations make provision for the determination of the maximum amount for the financial year, the maximum amount determined in accordance with those regulations.(4) The regulations may make provision for the determination of the maximum amount for a financial year by prescribing a maximum amount for a financial year or by providing for the manner in which the maximum amount for a financial year is to be determined.(5) Any such regulation may be made only with the approval of the Treasurer.(6) In this section, a reference to proceedings instituted by the Food Authority includes:(a) a reference to proceedings instituted under the direction or on behalf, or for the benefit, of the Food Authority, and(b) a reference to penalty notices issued by or under the direction or on behalf of the Food Authority.(7) In this section:financial year means the period of 12 months commencing on 1 July in any year.fine does not include any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence under this Act or the regulations.s 117D: Ins 2008 No 5, Sch 1 [3].
Part 10 Procedural and evidentiary provisions
118 Nature of proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be dealt with:(a) summarily before the Local Court, or(b) before the Supreme Court in its summary jurisdiction.(2) If proceedings are brought before the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is $10,000, despite any higher maximum monetary penalty provided in respect of the offence.s 118: Am 2007 No 94, Sch 2.
119 Time for instituting proceedings
(1) Proceedings for an offence against this Act or the regulations may be instituted not later than 2 years after the date on which the offence is alleged to have been committed.(2) The court may extend the time referred to in subsection (1) for the institution of proceedings.s 119: Am 2010 No 108, Sch 1 [4].
120 Penalty notices
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.(3) The Fines Act 1996 applies to a penalty notice issued under this section.Note—The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.(6) In this section, means a police officer, the Chief Executive Officer or an authorised officer as defined in section 4 (1).s 120: Am 2009 No 96, Sch 8 [3]. Subst 2017 No 22, Sch 3.27.
121 Offences by employers
(1) If an employee contravenes any provision of this Act or the regulations, the employer is taken to have contravened the same provision.(2) It is a defence in proceedings against an employer for such a contravention if it is established that the employer could not, by the exercise of due diligence, have prevented the contravention.(3) An employer may be proceeded against and convicted under a provision pursuant to this section whether or not the employee has been proceeded against or been convicted under that provision.
122 Liability of directors etc for offences by corporation—offences attracting executive liability
(1) For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation:(a) section 13,(b) section 14,(c) section 15,(d) section 16,(e) section 17 (1) or (2),(f) section 18 (1)–(3),(g) section 19 (1),(h) section 20,(i) section 21 (1)–(4),(j) section 35,(k) section 64,(l) section 104 (1)–(4).(2) A person commits an offence against this section if:(a) a corporation commits an executive liability offence, and(b) the person is:(i) a director of the corporation, or(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and(c) the person:(i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and(ii) fails to take all reasonable steps to prevent or stop the commission of that offence.Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.(3) The prosecution bears the legal burden of proving the elements of the offence against this section.(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.(5) This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.(6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.(7) In this section:director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:(a) action towards:(i) assessing the corporation’s compliance with the provision creating the executive liability offence, and(ii) ensuring that the corporation arranged regular professional assessments of its compliance with the provision,(b) action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,(c) action towards ensuring that:(i) the plant, equipment and other resources, andrelevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,(ii) the structures, work systems and other processes,(d) action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.s 122: Am 2011 No 2, Sch 1.10. Subst 2012 No 97, Sch 1.13 [13].
122A Liability of directors etc for offences by corporation—accessory to the commission of the offences
(1) For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 122.(2) A person commits an offence against this section if:(a) a corporation commits a corporate offence, and(b) the person is:(i) a director of the corporation, or(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and(c) the person:(i) aids, abets, counsels or procures the commission of the corporate offence, or(ii) induces, whether by threats or promises or otherwise, the commission of the corporate offence, or(iii) conspires with others to effect the commission of the corporate offence, or(iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.(3) The prosecution bears the legal burden of proving the elements of the offence against this section.(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.(5) This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.(6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.s 122A: Ins 2012 No 97, Sch 1.13 [13].
122B Evidence as to state of mind of corporation
(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.(2) In this section, the state of mind of a person includes:(a) the knowledge, intention, opinion, belief or purpose of the person, and(b) the person’s reasons for the intention, opinion, belief or purpose.s 122B: Ins 2012 No 97, Sch 1.13 [13].
123 Liability of employees and agents
(1) Except as provided by subsection (2), it is no defence in proceedings for an offence under this Act or the regulations that the defendant was, at the time of the commission of the offence, an employee or agent of another person.(2) In any proceedings for an offence under this Act or the regulations, it is a defence for the defendant to prove that the defendant was under the personal supervision of the proprietor of the food business, or the owner or person in charge of the place or vehicle, in relation to which the offence was committed or of another person representing that proprietor, owner or person in charge.
124 Alternative verdicts for serious food offences
(1) If, on the trial of a person charged with an offence against section 13 the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 16 (1), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against section 16 (1), and the person is liable to punishment accordingly.(2) If, on the trial of a person charged with an offence against section 14, the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 16 (2), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against section 16 (2), and the person is liable to punishment accordingly.
125 No defence to allege deterioration of sample
In any proceedings for an offence under this Act or the regulations, it is not a defence for a person to allege that any part of a sample retained for future comparison with a sample that has been analysed has from natural causes deteriorated, perished or undergone any material change in its constitution.
126 Onus to prove certain matters on defendant
In any proceedings for an offence under this Act or the regulations against a defendant who was responsible for making a statement on a package or in an advertisement relating to the origin or composition of the food in question or the therapeutic or nutritive properties of the food, being a statement that is alleged to have caused the food to be falsely described, the onus of proving the correctness of the statement is on the defendant.
127 Presumptions
In any proceedings for an offence under this Act or the regulations, it is presumed until, on the balance of probabilities, the contrary is proved that:(a) any substance or thing capable of being used as food that was sold or prepared for sale or conveyed or intended for sale was sold, prepared, conveyed or intended for sale for human consumption, and(b) any substance or thing capable of being used as food is not for human consumption if it is prominently marked as not being for human consumption, or with words to that effect, and(c) food that is part of a batch, lot or consignment of food of the same class or description is representative of all of the food in that batch, lot or consignment, and(d) each part of a sample of food divided for the purpose of analysis under this Act is of uniform composition with every other part of that sample, and(e) a person who sold food in the conduct of a food business and was not the proprietor of the food business sold the food as the agent of the proprietor, and(f) a person who appears from any statement on a package containing food for sale to have imported, manufactured, packed or prepared the food is the importer, manufacturer, packager or preparer of the food, as the case may be, and(g) food that has been sold to a consumer has been sold at some time by any person who respectively imported, manufactured, prepared or packed the food, and(h) a signature purporting to be that of the Food Authority, an authorised officer, the person in charge of an approved laboratory or an approved analyst is that signature.
128 Certificate evidence and evidence of analysts
(1) A certificate of the result of an analysis obtained by the defendant or the prosecution in proceedings for an offence under this Act or the regulations is admissible in any such proceedings and evidence of the facts stated in it if:(a) the certificate was issued in accordance with section 74, and(b) a copy of the certificate is served by the person who obtained it on the other party to the proceedings at least 7 days before the hearing.(2) An analyst who carried out an analysis in relation to which a certificate is produced as evidence in proceedings as referred to in subsection (1) need not be called as a witness in the proceedings by the party producing the certificate unless the court hearing the proceedings so orders (whether on application made to it or by any other means).(3) (Repealed)(4) In any proceedings for an offence under this Act or the regulations:(a) a document purporting to be a copy of any registration, approval, order, notice or authority under this Act is evidence of that registration, approval, order, notice or authority, or(b) a document purporting to be signed by the Food Authority certifying that at a specified time or during a specified period:(i) there was or was not in force any registration, approval, order, notice or authority in relation to a specified person or persons, oris evidence of the matters contained in the document, or(ii) that a registration, approval, order, notice or authority was or was not subject to specified conditions,(c) a document purporting to be signed by the Food Authority certifying:(i) as to the receipt or otherwise of any notice, application or payment, oris evidence of the matters contained in the document.(ii) that any amount of fees or other money is payable under this Act by a specified person and has not been paid at the date of the certificate,s 128: Am 2010 No 108, Sch 1 [5].
129 Power of court to order further analysis
(1) In any proceedings for an offence under this Act or the regulations, the court may, if satisfied that:(a) there is a disagreement between the evidence of the analysts for the parties to the proceedings, andorder that the part or parts of any sample retained under section 71 be sent by the enforcement agency concerned to an analyst specified by the court or agreed to by the parties.(b) it is in the interests of justice to do so,(2) An order may be made under subsection (1) at the request of any party to the proceedings or on the court’s own motion.(3) An analyst who is sent a part or parts of a sample for analysis under this section is to make an analysis of that part or those parts for the information of the court.(4) Subject to section 131, the cost of an analysis under this section is to be borne by the enforcement agency concerned.
130 Disclosure by witnesses
(1) In any proceedings for an offence under this Act or the regulations, a witness for the prosecution is not compelled to disclose the fact that the witness received information, the nature of the information received or the name of the person from whom the information was received.(2) An authorised officer appearing as a witness in any proceedings is not compelled to produce any document containing any confidential matter made or received in his or her capacity as an authorised officer.(3) Despite subsections (1) and (2), a court hearing proceedings for an offence under this Act or the regulations may order the disclosure of any matter, or the production of a document, referred to in those subsections if the court considers that it is necessary in the interests of justice.
131 Court may order costs and expenses
Without affecting any other power of a court to award costs, a court that hears proceedings for an offence under this Act or the regulations has power to make such orders as it thinks fit in respect of the costs and expenses of and incidental to the examination, seizure, detention, storage, analysis (including further analysis), destruction or other disposition of any thing the subject of those proceedings.
132 Court may order corrective advertising
A court by which a person (in this section referred to as the defendant) is found guilty of an offence under Part 2, may make one or both of the following orders:(a) an order requiring the defendant to disclose in a particular manner to the public, to a particular person or to a particular class of persons specified information, or information of a specified kind, which the defendant possesses or to which the defendant has access,(b) an order requiring the defendant to publish, at his or her own expense, in a manner and at times specified in the order, advertisements the terms of which are specified in the order.
Part 10A Disclosure of information about offences and alleged offences
pt 10A: Ins 2008 No 5, Sch 1 [4].
133 Register of offences
(1) The Food Authority may keep a register of information about offences under this Act or the regulations relating to the handling or sale of food (the register of offences).(2) The register may contain any of the following information in relation to a person who has been convicted by a court of an offence under this Act or the regulations relating to the handling or sale of food, or whose employee or agent has been convicted of such an offence:(a) the name of the person,(b) the name and address of the place of business at which the offence was committed, including the local government area in which it is located,(c) the name and address of the usual place of business of the person,(d) the trade name under which the person trades,(e) if the person is a company, the name of the chief executive officer and any director of the company,(f) a description of the nature and circumstances of the offence, the decision of the court, the penalty imposed and any forfeiture incurred,(g) the enforcement agency or other body under the direction of which, or on behalf of whom, the relevant prosecution was conducted,(h) such other information of a general nature in relation to matters connected with food safety or other interests of consumers in food as the Food Authority thinks necessary.(3) Information relating to a particular offence is not to be published on the register until after the last day on which an appeal may be made against the conviction.(4) If an appeal is made against the conviction, information relating to the offence is not to be published on the register unless a final order has been made on appeal affirming the conviction.(5) The register of offences may be kept in such form as the Food Authority considers appropriate.(6) For the purposes of this Part, an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to an offence is taken to be a conviction for the offence.s 133: Rep 2005 No 98, Sch 1.10 [1]. Ins 2008 No 5, Sch 1 [4].
133A Register of information about penalty notices
(1) The Food Authority may keep a register of information about penalty notices issued for alleged offences under this Act or the regulations relating to the handling or sale of food (the register of penalty notices).(2) The register may contain any of the following information:(a) the name of any person served with a penalty notice for an alleged offence under this Act or the regulations relating to the handling or sale of food,(b) the name and address of the place of business at which the offence is alleged to have been committed, including the local government area in which it is located,(c) the name and address of the usual place of business of the person,(d) the trade name under which the person trades,(e) if the person is a company, the name of the chief executive officer and any director of the company,(f) a description of the nature and circumstances of the alleged offence, including the short title of the offence,(g) the date, time and place of the alleged offence,(h) the penalty notice infringement number,(i) the amount payable under the penalty notice,(j) the date the penalty notice was served,(k) the enforcement agency or other body under the direction of which, or on behalf of whom, the penalty notice was served,(l) the status of the penalty notice (that is, particulars of whether the penalty notice has been fully or partly paid, whether a penalty notice enforcement order under Part 3 of the Fines Act 1996 has been issued in respect of the penalty notice or whether the penalty notice is unresolved),(m) such other information of a general nature in relation to matters connected with food safety or other interests of consumers in food as the Food Authority thinks necessary.(3) Information relating to a penalty notice served on a person is not to be published on the register unless:(a) the amount payable under the penalty notice has been fully or partly paid, or(b) a penalty notice enforcement order under Part 3 of the Fines Act 1996 has been issued in respect of the penalty notice, or(c) at least 70 days has elapsed since the penalty notice was served and the penalty notice is unresolved.(4) For the purposes of this section, a penalty notice is unresolved until one of the following occurs (whichever happens first):(a) the amount payable under the penalty notice is paid (in part or in full),(b) a penalty notice enforcement order under Part 3 of the Fines Act 1996 has been issued in respect of the penalty notice,(c) an election is made by the person served with the penalty notice to have the matter determined by a court in accordance with Part 3 of the Fines Act 1996,(d) a decision is made by the enforcement agency or other body under the direction of which, or on behalf of whom, the penalty notice was issued not to enforce the penalty notice,(e) a penalty reminder notice in respect of the offence is withdrawn under the Fines Act 1996.(5) The register of penalty notices may be kept in such form as the Food Authority considers appropriate.ss 133A–133E: Ins 2008 No 5, Sch 1 [4].
133B Publication of information on registers
(1) Any register kept under this Part is to be made available for public inspection on an internet website of the Food Authority.(2) Information contained in a register may be provided to members of the public in any other manner approved by the Food Authority.(3) Without limiting subsection (2), the Food Authority may publish any information contained in a register kept under this Part in the Gazette or in a newspaper circulating in this State.ss 133A–133E: Ins 2008 No 5, Sch 1 [4].
133C Correction of register
(1) The Food Authority must correct any error in information in a register kept under this Part as soon as practicable after becoming aware of the error.(2) The Food Authority may, at any time, correct any omission from information in a register kept under this Part.(3) The Food Authority may correct any error in, or omission from, a register kept under this Part on its own initiative or on an application by a person under this Part.ss 133A–133E: Ins 2008 No 5, Sch 1 [4].
133D Removal of information from register
(1) The Food Authority may remove any information from a register kept under this Part.(2) The Food Authority must remove information about a conviction for a particular offence from the register of offences as soon as practicable after it has become aware that:(a) the conviction has been quashed or annulled, or(b) an appeal has been made against the conviction, or(c) a period of 2 years has elapsed since the end of the period during which an appeal could have been made against the conviction, or if an appeal was made against the conviction, the date on which a final order was made affirming the conviction.(3) However, in a case where the Food Authority removes information from the register of offences because an appeal is made against a conviction for an offence, the Food Authority may restore information regarding the offence to the register if it is satisfied that any such appeal was unsuccessful.(4) The Food Authority may remove any information about a conviction for an offence from the register of offences if it is appropriate in the circumstances to remove the information from the register.(5) The Food Authority must remove information about a particular penalty notice from the register of penalty notices as soon as practicable after it has become aware that:(a) the relevant penalty notice was not properly served, or(b) the person on whom the notice was served has elected to have the matter dealt with by a court, or(c) a decision has been made by the enforcement agency or other body under the direction of which, or on behalf of whom, the penalty notice was issued not to enforce the penalty notice, or(d) a penalty reminder notice or penalty notice enforcement order in respect of the penalty notice has been withdrawn under the Fines Act 1996 (unless the enforcement action authorised by the enforcement order is authorised by another penalty notice enforcement order), or(e) a penalty notice enforcement order in respect of the penalty notice has been annulled under the Fines Act 1996 and the matter has been referred to a court, or(f) a period of 12 months has elapsed since the date on which the Food Authority was first authorised to publish information about the particular penalty notice on the register.(6) The Food Authority may remove any information about a particular penalty notice from the register of penalty notices if it is satisfied it is appropriate in the circumstances to remove the information from the register (for example, if the issue of the penalty notice contravened any policy of the Food Authority relating to enforcement of the Act).(7) The Food Authority may remove information from a register on its own initiative or on an application by a person under this Part.ss 133A–133E: Ins 2008 No 5, Sch 1 [4].
133E Addition of information to register
(1) If any business named in a register is sold or otherwise disposed of after the date on which an offence is committed, or a penalty notice served, in relation to an offence committed or alleged to have been committed in the conduct of the business, the Food Authority may add information to the register for the purpose of indicating that the business has been sold or otherwise disposed of.(2) The Food Authority may make such an addition to information on a register on its own initiative or on an application by a person under this Part.ss 133A–133E: Ins 2008 No 5, Sch 1 [4].
133F Applications for changes to register
(1) An interested person in relation to any information on a register kept under this Part may, by application to the Food Authority, request the Food Authority:(a) to make any correction or addition to information on the register that the Food Authority is authorised or required to make under this Part, or(b) to remove information from the register on the ground that the Food Authority is authorised or required by this Part to remove the information.(2) A person is an interested person in relation to information on a register only if the information relates to the person or to the person’s employee or agent, or to a business or company which the person owns or has an interest in.(3) An application must:(a) be made in a form approved by the Food Authority, and(b) be accompanied by the fee (if any) prescribed by the regulations.(4) The Food Authority may reduce the fee or remit or waive payment of the whole or any part of the fee.(5) A person who is aggrieved by a decision of the Food Authority not to make any correction or addition to information, or not to remove any information, in accordance with the person’s request under this section may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.(6) An application for such an administrative review must be made within 28 days after the day on which notice of the decision of the Food Authority is received by the person.s 133F: Ins 2008 No 5, Sch 1 [4]. Am 2009 No 85, Sch 1 [6]; 2013 No 95, Sch 2.63 [11] [12].
133G Protection from liability (including defamation)
(1) No liability is incurred by the State, the Minister or the Food Authority, a person acting under the direction of the Minister or the Food Authority or any person or body engaged in the administration of this Act or the Fines Act 1996 in respect of anything done, or omitted to be done, in good faith in connection with the keeping of a register under this Part or the making public of any information contained on a register.(2) No liability is incurred by a person for publishing in good faith:(a) any information contained on a register kept under this Part, or(b) a fair report or summary of any such information.(3) In this section:liability includes liability for defamation.the State includes the Crown in right of the State and the Government of the State.s 133G: Ins 2008 No 5, Sch 1 [4].
133H Privacy and personal information
(1) The Food Authority may exercise its functions under this Part despite any prohibition in, or the need to comply with, the Privacy and Personal Information Protection Act 1998.(2) A public sector agency that holds personal information about a person may disclose the information, without the consent of the person, to the Food Authority, or to any person engaged in the administration of this Act, for the purpose of enabling the Food Authority to exercise its functions under this Part.(3) In particular, the Commissioner of Fines Administration, and any person engaged in the administration of the Fines Act 1996, is authorised to disclose personal information about a person obtained under that Act to the Food Authority, or to any person engaged in the administration of this Act, for the purpose of enabling the Food Authority to exercise its functions under this Part.(4) In this section:personal information has the same meaning as in the Privacy and Personal Information Protection Act 1998.public sector agency has the same meaning as in the Privacy and Personal Information Protection Act 1998.s 133H: Ins 2008 No 5, Sch 1 [4]. Am 2013 No 82, Sch 2.8.
Part 11 Miscellaneous
134 Protection from personal liability
(1) Any matter or thing done or omitted to be done by an enforcement agency, an advisory committee, or a protected person does not, if the matter or thing was done or omitted in good faith for the purpose of executing any provision of this Act or any other law, subject a protected person personally to any action, liability, claim or demand.(2) In this section, protected person means any of the following:(a) the Minister,(b) any member of the enforcement agency or of the staff of the enforcement agency,(c) an authorised officer,(d) any person acting under the direction of an enforcement agency,(e) any member of an advisory committee,(f) a person employed by the Crown to carry out analyses for the purposes of this Act or a person carrying out analyses under the supervision of such a person,(g) any member of a body that is consulted for the purposes of section 103 or 105.s 134: Am 2004 No 16, Sch 1 [23].
135 Exclusion of liability of the State and others
(1) This section applies to civil proceedings for damages or other compensation brought against the State, the Food Authority or other enforcement agency or a protected person referred to in section 134.(2) Damages or other compensation is not payable in any such civil proceedings to the extent that:(a) the claim is made in connection with the handling, sale or consumption of food, and(b) the claim is based on alleged negligence or other breach of duty (including statutory duty) arising because of the exercise of, or the failure to exercise, any function under this Act.(3) This section does not affect any entitlement to compensation expressly conferred by this Act.(4) This section does not affect the operation of section 133G.s 135: Am 2008 No 5, Sch 1 [5].
136 Disclosure of certain confidential information
(1) A person who has, in connection with the administration or execution of this Act, obtained information relating to manufacturing secrets or commercial secrets or confidential processes must not disclose that information unless the disclosure is made:(a) with the consent of the person from whom the information was obtained, or(b) in connection with the administration or execution of this Act, or(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or(d) in accordance with a requirement imposed by or under this Act or any other law, or(e) to a person administering or enforcing a law of another jurisdiction that corresponds to this Act or any other law prescribed by the regulations, or(f) to the Commonwealth Food Authority, or(g) to a law enforcement authority, or(h) with other lawful excuse.Maximum penalty: 500 penalty units.(2) A person is not guilty of an offence under this section if the information was publicly available at the time the disclosure concerned was made.
136A Certain information may be provided to and by Food Authority
(1) An enforcement agency is authorised to provide information:(a) to a relevant authority if the enforcement agency considers the provision of the information is necessary to enable the relevant authority to exercise its functions under the Public Health Act 2010, or(b) to another enforcement agency if the enforcement agency providing the information considers the provision of the information is necessary to enable the other enforcement agency to exercise its functions under this Act.(2) A relevant authority is authorised to provide information to an enforcement agency if the relevant authority considers the provision of the information is necessary to enable the enforcement agency to exercise its functions under this Act.(3) Information may be provided in accordance with this section despite any prohibition in, or the need to comply with any requirement of, any Act or law (in particular, the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002).(4) In this section, means any of the following:(a) the Secretary of the Ministry of Health,(b) a public health organisation (within the meaning of the Health Services Act 1997).s 136A: Ins 2004 No 16, Sch 1 [24]. Subst 2007 No 47, Sch 1 [17]. Am 2010 No 127, Sch 4.6; 2015 No 58, Sch 3.35 [6].
137 Service of documents
(1) A document that is authorised or required by this Act or the regulations to be served on any person may be served by:(a) in the case of a natural person:(i) delivering it to the person personally, or(ii) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or(iii) sending it by facsimile transmission to the facsimile number of the person, or(b) in the case of a body corporate:(i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or(ii) sending it by facsimile transmission to the facsimile number of the body corporate.(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.s 137: Am 2005 No 98, Sch 1.10 [2]; 2007 No 47, Sch 1 [18]. Rep 2008 No 5, Sch 1 [6]. Ins 2009 No 85, Sch 1 [7].
137A Recovery of fees and charges
Any charge, fee or money due to the Food Authority under this Act is recoverable by the Food Authority in a court of competent jurisdiction as a debt due to the Crown.s 137A: Ins 2005 No 98, Sch 1.10 [3].
137B Authorised officers may perform functions under Commonwealth legislation
The Minister may, on behalf of the State, enter into arrangements with a Commonwealth Minister or officer of the Commonwealth government in relation to the exercise under Commonwealth legislation, by authorised officers authorised under this Act, of functions relating to food inspection.s 137B: Ins 2005 No 98, Sch 1.10 [3].
138 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
139 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act, including regulations for or with respect to the following:(a) fees or charges for the purposes of a food safety scheme, including (but not limited to) licence fees and fees or charges for the provision of services in relation to the food safety scheme,(b) fees or charges for the purposes of this Act, including (but not limited to) fees or charges for the provision of information, or for the carrying out of any inspection or analysis for the purposes of this Act or any audit of a program relating to food safety implemented in accordance with a food safety scheme (whether or not the inspection, analysis or audit is requested or agreed to), or in connection with the notification of the conduct of a food business,(c) fees for the making of applications under this Act,(c1) the waiver or refund of any licence fees or other fees or charges under this Act,(d) requirements for the notification by food businesses of information relating to the conduct of those food businesses,(e) regulating or prohibiting any activity relating to the handling or sale of food.(2) A regulation may create an offence punishable by a penalty not exceeding 25 penalty units.(2A) A regulation for or with respect to licence fees or other fees or charges charged for the purposes of a food safety scheme may enable the Food Authority to determine a licence fee or other fee or charge or the basis on which a licence fee or other fee or charge is to be determined.(2B) Without limiting subsections (1) (a) and (b) and (2A), a fee or charge referred to in any of those provisions may cover the following matters:(a) the costs of the Food Authority in administering a food safety scheme and other related provisions of this Act,(b) the costs of the processing of applications for licences and for the grant or renewal of licences under food safety schemes,(c) other costs of providing services in relation to a food safety scheme (whether or not the provision of the service is requested or agreed to),(d) annual administration charges in respect of the exercise by enforcement agencies, or any class of enforcement agency, of all or specified functions under this Act in relation to food businesses that are not required to be licensed under this Act, or any class of such food businesses.(2C) The regulations may provide for an application to be made to the Civil and Administrative Tribunal by a person for an administrative review under the Administrative Decisions Review Act 1997 of a decision, of a class prescribed by the regulations, that is made under this Act or the regulations.(2D) The Minister is not to recommend the making of a regulation containing provisions for the purposes of subsection (2C) unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions.(3) The regulations may apply, adopt or incorporate, whether wholly or in part or with or without modifications, any standard, code (except the Food Standards Code) or other document as in force from time to time or as in force at a particular time.s 139: Am 2004 No 16, Sch 1 [25] [26]; 2006 No 120, Sch 1.12 [2]; 2007 No 47, Sch 1 [19]–[21]; 2013 No 95, Sch 2.63 [13].
140 Temporary emergency regulations modifying the Code
(1) Regulations may be made for the purposes of this section that contain provisions that are in addition to, or in substitution for, one or more of the provisions of the Food Standards Code as those provisions of the Code apply in this State.(2) A regulation made for the purposes of this section must not be made unless the Minister has certified that such a regulation is necessary as it relates to an issue of public health and safety.(3) A provision of a regulation made for the purposes of this section does not continue in force:(a) except as provided by paragraph (b), for a period that is more than 12 months, or(b) if the provision is the same in substance as a provision of a regulation that was previously in force under this Act, for a period that, when added to the period for which that previous provision was in force, is more than 12 months.
141 Other regulations modifying the Code
(1) Regulations may be made for the purposes of this section that contain provisions that are in addition to, or in substitution for, one or more of the provisions of the Food Standards Code as those provisions of the Code apply in this State.(2) A regulation made for the purposes of this section must not be made unless the Minister has certified that such a regulation does not have a significant impact on the implementation and enforcement of uniform food laws in Australia.(3) A regulation made for the purposes of this section may be made only with the approval of the Premier.
142 Repeals
The Food Act 1989 and the Food Regulation 2001 are repealed.
143 (Repealed)
s 143: Rep 2005 No 64, Sch 3.
144 Savings, transitional and other provisions
Schedule 2 has effect.
Schedule 1 (Repealed)
sch 1: Rep 2005 No 64, Sch 3.
Schedule 2 Savings, transitional and other provisions
(Section 144)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this Act(2) If such a regulation so provides, it has effect despite any provision of this Act.(3) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(4) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this Act
2 Definition
In this Part, former Act means the Food Act 1989.
3 Inspectors
A person appointed as an inspector for the purposes of the former Act and holding that position immediately before the commencement of section 114 of this Act is taken to have been appointed as an authorised officer under that section and the appointment is subject to the same conditions as were imposed on the original appointment.
4 Analysts and certificates
(1) A person appointed as an analyst for the purposes of the former Act and holding that position immediately before the commencement of section 81 of this Act is taken to have been approved as an analyst under that section and the approval is subject to the same conditions as were imposed on the original appointment.(2) A certificate given under section 39 of the former Act by an analyst is, for the purposes of any proceedings under this Act, taken to be a certificate given under section 74 of this Act.
5 Orders and clean-up notices
An order or clean-up notice made under Part 4 of the former Act before its repeal by this Act continues to have effect, and may be enforced, as if that Act had not been repealed.
Part 3 Provisions consequent on enactment of Food Legislation Amendment Act 2004
6 Definitions
In this Part, former Act means the Food Production (Safety) Act 1998.
7 Food Authority
The Food Authority is a continuation of, and the same legal entity as, Safe Food Production NSW constituted under section 8 of the former Act.
8 Safe Food Production Fund
The Fund established under section 55 of the former Act is taken to be the Fund required to be established under section 117A of this Act.
9 Safe Food Production Advisory Committee
(1) The Safe Food Production Advisory Committee established under the former Act is dissolved.(2) The members of the Safe Food Production Advisory Committee holding office immediately before the commencement of this clause:(a) cease to hold office as such on that commencement, and(b) are not entitled to any compensation for ceasing to hold office because of the operation of this clause.
10 Chief Executive Officer of Safe Food
The person holding office as the Chief Executive Officer of Safe Food Production NSW immediately before the commencement of this clause:(a) ceases to hold that office on that commencement, and(b) is not entitled to any compensation for ceasing to hold that office because of the operation of this clause, and(c) is taken to have been appointed to the office of the Director-General of the NSW Food Authority on the same terms and conditions specified in the person’s contract of employment as Chief Executive Officer of Safe Food Production NSW and for the remainder of the person’s term of office as Chief Executive Officer, and(d) despite paragraph (c), may be removed from office in accordance with the Public Sector Employment and Management Act 2002.
11 Transfer of certain staff of Department of Health
(1) The Minister may direct, by order in writing, that any specified members of staff of the Department of Health be transferred to the Food Authority.(2) An order may be made under subclause (1) only with the concurrence of the Minister for Health.(3) Each person transferred under subclause (1) becomes a member of staff of the Food Authority and continues (until other provision is duly made) to be employed in accordance with the awards, agreements and determinations applying, immediately before the transfer, to the person as a member of staff of the Department of Health.(4) An order may only be made under this clause within the period of 2 years after the commencement of this clause.
12 Transfer of certain staff of area health services
(1) The Minister may direct, by one or more orders in writing, that any specified members of staff of an area health service (within the meaning of the Health Services Act 1997) be transferred to the Food Authority.(2) An order may be made under subclause (1) only with the concurrence of the Minister for Health.(3) Each person transferred under subclause (1) becomes a member of staff of the Food Authority and continues (until other provision is duly made) to be employed in accordance with arrangements:(a) agreed to by the Department of Health, the Public Employment Office, the Public Service Association and the Health Services Union, and(b) set out in the order made under subclause (1) transferring the person.(4) An order may only be made under this clause within the period of 2 years after the commencement of this clause.
13 Authorised officers
Despite clause 3 of this Schedule, a person taken to be appointed as an authorised officer by operation of that clause because the person was appointed as an inspector under the Food Act 1989 by the Director-General of the Department of Health, ceases to hold the office of authorised officer on the commencement of this clause.
14 Orders and improvement notices
An order made under Division 3 of Part 5 of the former Act, or an improvement notice or prohibition order made under Division 4 of that Part, and in force immediately before the commencement of this clause continues to have effect, and may be enforced, as if those provisions of that Act had not been repealed.
15 Regulations
(1) A regulation under the former Act that was in force immediately before the repeal of a provision of the former Act under which the regulation was made is taken to have been made under this Act and may be amended or repealed accordingly.(2) For the purposes of the Subordinate Legislation Act 1989, a regulation referred to in subclause (1) is taken to have been made on the commencement of this subclause.(3) Until the commencement of sections 93 and 96, a food safety scheme may make provision in relation to the preparation, implementation, maintenance, monitoring, certification and auditing of food safety programs that is inconsistent with those sections.
16 Orders of Minister in relation to assets of former authority
(1) The Minister may give the Food Authority a direction, in writing, that specified assets of a former authority transferred to the Food Authority by the operation of clause 4 of Schedule 5 to the former Act are to be used for specified purposes only.(2) Before giving a direction under subclause (1), the Minister must consult with:(a) the New South Wales Dairy Industry Conference, if the former authority was the New South Wales Dairy Corporation, or(b) the consultative body established under section 102 (2) (z) for the meat industry, if the former authority was the New South Wales Meat Industry Authority.(3) In this clause, means:(a) the New South Wales Dairy Corporation dissolved under clause 3 (1) of Schedule 5 to the former Act, and(b) the New South Wales Meat Industry Authority dissolved under clause 3 (2) of Schedule 5 to the former Act.
17 Private and subsidiary corporations
(1) A private corporation established, or an interest in a private corporation acquired, under section 15A of the former Act is taken to have been established or acquired by the Food Authority under section 109C of this Act.(2) An approval given under section 15B (2) of the former Act, and in force immediately before the repeal of that provision, is taken to have been given to the Food Authority under section 109D (2) of this Act.(3) A delegation in force under section 15C of the former Act immediately before the repeal of that provision is taken to have been given by the Food Authority under section 109E of this Act and continues to have effect as if it had been given under this Act.(4) Subclause (3) applies only to the extent to which a delegation relates to a function that is of the same kind as a function that the Food Authority has under the Dairy Industry Act 2000.
Part 4 Provisions consequent on enactment of Food Amendment Act 2007
18 Existing enforcement agencies
(1) Despite the amendment of the definition of enforcement agency by the Food Amendment Act 2007, a relevant body that, immediately before the commencement of that amendment, was prescribed by the regulations as an enforcement agency is taken to continue from that commencement to be an enforcement agency for the purposes of that definition until:(a) the expiration of the period of 18 months after that commencement, or(b) the appointment of the relevant body as an enforcement agency under section 111, orwhichever occurs first.(c) the publication in the Gazette of an order made by the Food Authority declaring that the relevant body is no longer an enforcement agency,(2) Nothing in this clause prevents a relevant body who ceases to be an enforcement agency by operation of this clause from subsequently being appointed as an enforcement agency under section 111.(3) In this clause, relevant body has the same meaning as in Division 2 of Part 9.
19 Pending proceedings by enforcement agencies
(1) This clause applies to an enforcement agency or former enforcement agency on which a function was conferred or imposed under this Act (an original function), whether before or after the commencement of this clause, and that ceases to be authorised to exercise the function (including because of ceasing to be an enforcement agency).(2) If an enforcement agency or former enforcement agency has exercised an original function before ceasing to be authorised to do so, the agency may, in accordance with this Act, do any of the following:(a) commence or continue any proceedings, or take any action, in connection with that exercise of the original function,(b) without limiting paragraph (a), if the exercise of the original function involved the issuing of an improvement notice under Part 5 of the Act, take any action under that Part to enforce compliance with the improvement notice, including issuing a prohibition order.(3) In this clause:(a) a reference to an enforcement agency includes a reference to an authorised officer of an enforcement agency, and(b) a reference to a former enforcement agency includes a reference to a former authorised officer of an enforcement agency.(4) Nothing in this clause limits the operation of section 30 of the Interpretation Act 1987.
Part 5 Provisions consequent on enactment of Food Amendment (Public Information on Offences) Act 2008
20 Payment of penalties and fines to Food Authority Fund
Section 117D, as inserted by the Food Amendment (Public Information on Offences) Act 2008, applies to monetary penalties and fines recovered on or after the commencement of that section (regardless of when the relevant proceedings were instituted).
21 Register of offences
(1) New section 133 applies only to offences committed on or after the commencement of that section.(2) Section 137 (as in force immediately before its repeal by the Food Amendment (Public Information on Offences) Act 2008) continues to apply in relation to any conviction for an offence committed before the commencement of new section 133, as if section 137 had not been repealed. Accordingly, the Food Authority may continue to exercise its functions under section 137 in respect of offences committed before the commencement of new section 133.(3) In this clause:new section 133 means section 133, as inserted by the Food Amendment (Public Information on Offences) Act 2008.
22 Register of penalty notices
Section 133A (as inserted by the Food Amendment (Public Information on Offences) Act 2008) applies only to penalty notices served on or after the commencement of that section.
Part 6 Provisions consequent on enactment of Food Amendment (Food Safety Supervisors) Act 2009
23 Application of new offences relating to food safety supervisors
(1) This clause applies to provisions of Division 3 of Part 8 as inserted by the Food Amendment (Food Safety Supervisors) Act 2009.(2) In this clause, the prescribed day, in relation to a provision of Division 3 of Part 8, means the day occurring 12 months after the commencement of the provision.(3) A person does not commit an offence against a provision of Division 3 of Part 8 until on or after the prescribed day.(4) Section 106C applies only to the processing and sale by retail of food occurring on or after the prescribed day.(5) Section 106D applies only to the processing of food occurring on or after the prescribed day.(6) Despite section 106E (2) (b), the notice of the appointment of a food safety supervisor required to be given under that section may be given within 7 days after the prescribed day if the appointment occurred before the prescribed day.
Part 7 Provisions consequent on enactment of Public Sector Restructure (Miscellaneous Acts Amendments) Act 2009
24 Construction of references to Director-General of Food Authority
A reference in any Act (other than this Act) or statutory instrument, or any other instrument, or any contract or agreement, to the Director-General of the Food Authority is to be construed as a reference to the Chief Executive Officer of the Food Authority.
Part 8 Provisions consequent on enactment of Food Amendment Act 2010
25 Application of new offences relating to display of nutritional information by standard food outlets
A person does not commit an offence against section 106N or 106O until on or after 1 February 2012.
sch 2: Am 2004 No 16, Sch 1 [27] [28]; 2007 No 47, Sch 1 [22] [23]; 2008 No 5, Sch 1 [7] [8]; 2009 No 96, Sch 8 [4]; 2009 No 85, Sch 1 [8] [9]; 2010 No 108, Sch 1 [6] [7].