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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 23 June 2017 at 04:46)
Part 4
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.
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.
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.
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.
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, or
(b)  in the opinion of the court, there are exceptional circumstances justifying the making of such an order,
but otherwise the court must refuse the application.
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.