Division 1 Inspection and analysis
23 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 place or vehicle that the authorised officer reasonably believes is used in connection with the handling of any primary produce or seafood,(b) alone, or with such police officers or other persons as the authorised officer considers necessary, enter and inspect any place or vehicle in which the authorised officer reasonably believes any records or documents are kept, being records or documents that relate to the handling of any primary produce or seafood,(c) examine any primary produce or seafood,(d) open and examine any package that the authorised officer reasonably believes contains any primary produce or seafood,(e) open and examine any equipment for use in connection with the handling of primary produce or seafood,(f) for the purpose of the analysis of any primary produce or seafood or the carrying out of 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, without payment, of any primary produce or seafood,(g) for the purpose of analysis, take samples of water or soil or any other thing that is part of the environment in which any primary produce or seafood is handled to determine whether that environment poses a risk to the safety of the primary produce or seafood for human consumption,(h) 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,(i) stop and detain any vehicle or vessel that the authorised officer is authorised by this subsection to enter,(j) 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 primary produce or seafood, or any equipment used or intended for use in connection with the handling of primary produce or seafood,(k) take such photographs, films or audio or visual recordings as the authorised officer considers necessary,(l) 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 article that an authorised officer is authorised to examine under this Act,(m) require a person to state the person’s name and address,(n) generally make such investigations and inquiries as may be necessary to ascertain whether an offence against this Act or the regulations is being or has been committed.(2) A person who, without reasonable excuse, fails to comply with a requirement of an authorised officer made under this section is guilty of an offence.Maximum penalty: 50 penalty units.
(3) 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 inspector that a refusal or failure to comply with the requirement constitutes an offence.(4) This section does not authorise entry into any part of premises that is being used for residential purposes except with the consent of the occupier of the premises or under the authority of a search warrant.
An authorised officer may seize:(a) any primary produce or seafood, or any equipment, package or labelling or advertising material, or any other thing at all, that the authorised officer has reasonable grounds to believe is evidence that an offence against this Act or the regulations is being or has been committed, or(b) any primary produce or seafood that the authorised officer has reasonable grounds to believe is intended for human consumption but is not safe for human consumption.
(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:(a) to enter the premises concerned, and(b) to search the premises for evidence of a contravention of this Act or the regulations.(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.(4) In this section, authorised justice and premises have the same meanings as in the Search Warrants Act 1985.
26 Directions of Safe Food relating to primary produce or seafood
(1) Safe Food may, by notice in writing served on a person, give any one or more of the following directions in relation to primary produce or seafood that Safe Food is of the opinion is intended for human consumption:(a) if Safe Food considers that the primary produce or seafood is not safe for human consumption—a direction that the primary produce or seafood must not be supplied for human consumption and must be dealt with or disposed of in a manner specified in the notice,(b) if Safe Food considers that the primary produce or seafood will not be safe for human consumption unless it is dealt with in a particular manner—a direction that the primary produce or seafood must not be supplied for human consumption unless it is dealt with in the manner specified in the notice,(c) if Safe Food considers that the primary produce or seafood is described in a false or misleading way that could endanger human health—a direction that the primary produce or seafood must not be supplied for human consumption, or must be described in some other way before being supplied for human consumption, and must be dealt with or disposed of in a manner specified in the notice.(2) A person on whom a notice is served under this section is guilty of an offence if the person fails, without reasonable excuse, to comply with a direction contained in the notice within the time specified in the notice for compliance.Maximum penalty: In the case of a first offence, 50 penalty units or imprisonment for 6 months, or both. In the case of a second or subsequent offence, 500 penalty units or imprisonment for 2 years, or both.
(3) A person who is aggrieved by a direction given under this section may appeal to a Local Court against the direction in accordance with the rules of court.(4) If an appeal is lodged under subsection (3) against a direction under this section, then until the appeal is determined and an order is made by the Court confirming the direction, the direction does not have effect except to the extent that it prohibits the supply of primary produce or seafood for human consumption.(5) If a person on whom a notice is served under this section containing a direction to deal with or dispose of any primary produce or seafood in a specified manner fails to deal with or dispose of the primary produce or seafood in that manner within the time specified in the notice, Safe Food may seize the primary produce or seafood.(6) A person who is the owner of any primary produce or seafood that is the subject of a notice under this section is liable for any cost incurred in dealing with or disposing of the primary produce or seafood in compliance with the notice and any such cost incurred by Safe Food is taken to be a debt due to Safe Food from that person.(7) In any proceedings for the recovery of any debt referred to in subsection (6), a certificate signed by Safe Food stating the amount of the costs and the manner in which they were incurred is evidence of the matters certified.
27 Interfering with seized items
A person who, without the permission of Safe Food, removes or tampers with any primary produce or seafood that has been seized under this Act is guilty of an offence unless the seizure has been disallowed under Division 2.Maximum penalty: In the case of a first offence, 50 penalty units or imprisonment for 6 months, or both. In the case of a second or subsequent offence, 500 penalty units or imprisonment for 2 years, or both.
A person who, without reasonable excuse, in connection with a requirement or direction under this Act, provides any information or produces any document that the person knows is false or misleading in a material particular is guilty of an offence.Maximum penalty: 50 penalty units.
29 Obstructing or impersonating authorised officers
(1) A person who, without reasonable excuse, resists or obstructs an authorised officer in the exercise of the authorised officer’s functions under this Act is guilty of an offence.Maximum penalty: 50 penalty units.
(2) A person who impersonates an authorised officer is guilty of an offence.Maximum penalty: 50 penalty units.
(1) Safe Food is to provide each authorised officer with a certificate of authority as an authorised officer.(2) The certificate of authority:(a) must state that it is issued under this Act, and(b) must state the name of the person to whom it is issued and bear a photograph of that person, and(c) must describe the nature of the powers conferred and the scope of those powers, and(d) must state the date (if any) on which it expires, and(e) must describe the kind of premises to which the powers extend, and(f) 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.(3) The powers of an authorised officer may be limited by the authorised officer’s certificate of authority.(4) An authorised officer is required to produce the certificate of authority:(a) if requested to do so by the occupier of any premises that the authorised officer enters, or(b) if requested to do so by a person whom the authorised officer requires to produce anything or to answer any question.
(1) Safe Food may arrange for the analysis of any sample taken for the purposes of this Act.(2) The analysis of any such sample is to be carried out in accordance with the regulations.
Division 2 Items seized by authorised officers
(1) Any item seized under this Part may, at the option of the authorised officer who made the seizure or of any authorised officer acting in his or her place, be detained in the place or vehicle where it was found or be removed to another place and detained there.(2) If the item is to be detained in the place or vehicle where it was found, the authorised officer:(a) may place it in a room, compartment or cabinet in that place or vehicle, 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.
If, before any item seized under section 24 (a) is forfeited to the Crown under this Division, Safe Food becomes satisfied that there has been no contravention of this Act or the regulations of which the item is evidence, Safe Food may cause the item to be delivered to:(a) the person from whom it was seized, or(b) such other person as appears to Safe Food to be entitled to it.
(1) An item seized under this Part is forfeited to the Crown if:(a) it has not been dealt with under section 33 and no application for an order disallowing the seizure has been made in accordance with this Division, or(b) an application for an order disallowing the seizure has been made in accordance with this Division but the application has been refused or has been withdrawn before a decision on the application has been made.(2) An item forfeited to the Crown under this section may be destroyed, sold or otherwise disposed of as Safe Food may, generally or in a particular case, direct.
35 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 Safe Food in connection with the lawful destruction or disposal of the item and any such cost is taken to be a debt due to Safe Food from that person.(2) In any proceedings for the recovery of the debt, a certificate signed by Safe Food stating the amount of any costs and the manner in which they were incurred is evidence of the matters certified.
(1) An item seized under section 24 (a) that is forfeited by the operation of section 34 (1) (a) and that has not been destroyed or otherwise disposed of in a manner that would prevent its return must immediately be delivered to the person from whom it was seized, or such other person as appears to Safe Food to be entitled to it, if Safe Food becomes satisfied that no contravention of this Act or the regulations has been committed in relation to the item.(2) On being delivered, any proprietary and other interests in the item that existed immediately before its forfeiture are restored.
37 Compensation to be paid in certain circumstances
(1) Safe Food is to pay such compensation as Safe Food considers to be just and reasonable in relation to any item seized under section 24 (a) if:(a) Safe Food becomes satisfied that 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.(2) The compensation is to be paid to the person from whom the item was seized, or such other person as appears to Safe Food to be entitled to it.(3) A person dissatisfied with a determination by Safe Food as to compensation under this section may appeal to a Local Court against the determination within 10 days after the date on which notification of the determination was received.
38 Destruction of noxious material
If an authorised officer who has seized primary produce or seafood under this Part is satisfied that it 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 primary produce or seafood to be destroyed in an environmentally responsible manner.
39 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 notice of an application in a Local Court for an order disallowing the seizure of the item.(2) The application is to be made in accordance with the rules of court and is not to be heard unless the applicant has previously served a copy of the application on Safe Food.
40 Safe Food entitled to answer application
Safe Food is entitled to appear as respondent at the hearing of the application.
A Local Court, on the hearing of an application, must make an order disallowing the seizure of an item if:(a) in the case of a seizure under section 24 (a)—it is proved that the applicant would, but for the seizure, be entitled to the item and it is not proved beyond reasonable doubt that an offence was being, or had been, committed, being an offence of which the item was evidence, or(b) in the case of a seizure under section 24 (b)—it is proved on the balance of probabilities that the item seized was safe for human consumption, or(c) in the opinion of the Court, there are exceptional circumstances justifying the making of an order disallowing the seizure,but otherwise the Court must refuse the application.
(1) In the event that a Local Court makes an order disallowing the seizure of any item, 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 Safe Food to pay to the applicant such amount by way of compensation as the Court considers to be just and reasonable.(2) The award of costs with respect to the hearing of the application lies in the discretion of the Court.(3) 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.
43 Adjournment pending hearing of other proceedings
If on the hearing of an application it appears to the Local 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 against this Act or the regulations, the Court may, on the application of the respondent or on its own motion, adjourn the hearing until the conclusion of those proceedings.
Division 3 Orders controlling food production
An order under this Division may be made only when Safe Food has reasonable grounds to believe that the making of one or more such orders is necessary to prevent or mitigate a serious danger to public health.
(1) By an order under this Division, Safe Food may prohibit the cultivation, taking, harvesting or obtaining, from an area specified in the order, of any primary produce or seafood or of any primary produce or seafood of a class or description so specified.(2) An order under this Division:(a) may prohibit absolutely the carrying on of an activity in relation to primary produce or seafood or may permit the carrying on of the activity in accordance with conditions specified in the order, and(b) may, without limiting the generality of paragraph (a), impose conditions relating to the taking and analysis of samples of the primary produce or seafood 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 primary produce or seafood, and(c) specify methods of analysis (not inconsistent with methods prescribed by the regulations) of any samples required to be taken in accordance with the order.(3) An order under this Division may be varied or revoked by Safe Food in the same way as the order was made.
(1) An order under this Division:(a) may be made in writing addressed to the person intended to be bound by it, and served on that person, or(b) may be addressed to several persons, or to all persons, and published in the Gazette.(2) In either case, the order, when it takes effect, is binding on the person or persons to whom it is addressed.(3) An order that is served on a person takes effect on the date of service or a later date specified in the order.(4) An order that is published in the Gazette takes effect on the date of publication or a later date specified in the order.(5) An order ceases to have effect 90 days after it takes effect unless it is sooner revoked.(6) Subsection (5) does not prevent a further order being made in the same terms as an order that has expired.
A person bound by any order under this Division that imposes a prohibition or direction may apply to the Administrative Decisions Tribunal for a review of the prohibition or direction.
48 Failure to comply with directions
A person who:(a) carries on an activity in relation to any primary produce or seafood in contravention of any prohibition imposed on the person by an order under this Division, or(b) neglects or refuses to comply with a direction given by such an order,is guilty of an offence.Maximum penalty: In the case of a first offence, 50 penalty units or imprisonment for 6 months, or both. In the case of a second or subsequent offence, 500 penalty units or imprisonment for 2 years, or both.
Division 4 Improvement notices and prohibition orders for unfit premises
(1) If Safe Food is satisfied, by Safe Food’s own inspection or by the report of an authorised officer, that:(a) any premises, vehicle or equipment used in connection with the handling of primary produce or seafood is in an unclean or insanitary condition, or is otherwise unfit for the purpose for which it is intended, or(b) it is necessary to install any equipment on premises used in connection with the handling of primary produce or seafood to ensure that the primary produce or seafood will be safe for human consumption,Safe Food may serve an improvement notice on the owner of, or the person in charge of, the premises, vehicle or equipment.(2) An improvement notice is to take the form of an order that:(a) the premises, vehicle or equipment be put into a clean and sanitary condition, or be repaired, to the satisfaction of an authorised officer, or(b) the vehicle or equipment be replaced, or(c) specified equipment be installed on the premises,within a period specified in the notice.
(1) If, after the expiration of the period specified in the notice under section 49 (2), Safe Food is not satisfied that the premises, vehicle, vessel or equipment to which an improvement notice relates has been dealt with in accordance with the notice or that equipment has been installed as required by the notice, Safe Food may serve on the owner or person in charge a prohibition order.(2) A prohibition order is to take the form of an order that:(a) no primary produce or seafood is to be handled on the premises, or(b) no primary produce or seafood is to be conveyed in the vehicle or vessel, or(c) the equipment is not to be used in connection with the handling of primary produce or seafood,as the case requires, until an authorised officer has given the owner or person in charge a certificate of clearance certifying that the premises, vehicle or equipment has been dealt with or installed in accordance with the improvement notice.
(1) The owner of, or person in charge of, premises or a vehicle or equipment affected by a prohibition order may at any time after the order has been served make a written request to Safe Food to cause the premises to be inspected by an authorised officer, or the vehicle or equipment to be so inspected:(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 Safe Food has agreed to.(2) If such a request is made and the premises, vehicle or equipment, through no fault of the owner or person in charge, is not inspected by an authorised officer within the period specified in the notice under section 49 (2), a certificate of clearance is taken to have been given to the proprietor under section 50.
52 Contravention of prohibition order
A person must not contravene or fail to comply with a prohibition order served on the person under section 50.Maximum penalty: In the case of a first offence, 50 penalty units or imprisonment for 6 months, or both. In the case of a second or subsequent offence, 500 penalty units or imprisonment for 2 years, or both.
53 Scope of notices and orders
An improvement notice or a prohibition order under this Division may be made with respect to any one or more of the following:(a) any premises, vehicle or equipment specified in the notice or order,(b) all equipment contained on premises, or in a vehicle, specified in the notice or order, or any specified equipment so contained.
54 Review of decision to refuse certificate of clearance
A person aggrieved by a decision of an authorised officer to refuse to give a certificate of clearance under section 50 may apply to the Administrative Decisions Tribunal for a review of the decision.