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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 24 June 2017 at 00:06)
Part 9
Part 9 Administration
Division 1 NSW Food Authority
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.
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(3)    (Repealed)
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.
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.
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.
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, and
(c)  sell or otherwise dispose of interests in private corporations,
whether or not the activities or proposed activities of any such private corporation are related to food safety.
(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.
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.
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, or
(e)  an enforcement agency or a person holding a position prescribed by the regulations as the head of an enforcement agency,
any function of the Food Authority under this Act that is not specified in subsection (2).
(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.
Division 2 Enforcement agencies
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).
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.