Food Act 2003 No 43
Current version for 1 July 2014 to date (accessed 19 December 2014 at 06:32)
Part 8Division 2

Division 2 Food safety schemes

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)

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.

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.

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.
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