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Contents (2003 - 43)
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Food Act 2003 No 43
Current version for 6 January 2017 to date (accessed 27 June 2017 at 20:40)
Part 2 Division 3
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.
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.