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Contents (2003 - 43)
Food Act 2003 No 43
Current version for 7 July 2017 to date (accessed 18 November 2017 at 22:49)
Part 10
Part 10 Procedural and evidentiary provisions
118   Nature of proceedings for offences
(1)  Proceedings for an offence under this Act or the regulations may be dealt with:
(a)  summarily before the Local Court, or
(b)  before the Supreme Court in its summary jurisdiction.
(2)  If proceedings are brought before the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is $10,000, despite any higher maximum monetary penalty provided in respect of the offence.
119   Time for instituting proceedings
(1)  Proceedings for an offence against this Act or the regulations may be instituted not later than 2 years after the date on which the offence is alleged to have been committed.
(2)  The court may extend the time referred to in subsection (1) for the institution of proceedings.
120   Penalty notices
(1)  An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2)  A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3)  The Fines Act 1996 applies to a penalty notice issued under this section.
Note.
 The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4)  The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
(6)  In this section, authorised officer means a police officer, the Chief Executive Officer or an authorised officer as defined in section 4 (1).
121   Offences by employers
(1)  If an employee contravenes any provision of this Act or the regulations, the employer is taken to have contravened the same provision.
(2)  It is a defence in proceedings against an employer for such a contravention if it is established that the employer could not, by the exercise of due diligence, have prevented the contravention.
(3)  An employer may be proceeded against and convicted under a provision pursuant to this section whether or not the employee has been proceeded against or been convicted under that provision.
122   Liability of directors etc for offences by corporation—offences attracting executive liability
(1)  For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation:
(a)  section 13,
(b)  section 14,
(c)  section 15,
(d)  section 16,
(e)  section 17 (1) or (2),
(f)  section 18 (1)–(3),
(g)  section 19 (1),
(h)  section 20,
(i)  section 21 (1)–(4),
(j)  section 35,
(k)  section 64,
(l)  section 104 (1)–(4).
(2)  A person commits an offence against this section if:
(a)  a corporation commits an executive liability offence, and
(b)  the person is:
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and
(c)  the person:
(i)  knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and
(ii)  fails to take all reasonable steps to prevent or stop the commission of that offence.
Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.
(5)  This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.
(7)  In this section:
director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.
reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:
(a)  action towards:
(i)  assessing the corporation’s compliance with the provision creating the executive liability offence, and
(ii)  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,
(b)  action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c)  action towards ensuring that:
(i)  the plant, equipment and other resources, and
(ii)  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)  action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.
122A   Liability of directors etc for offences by corporation—accessory to the commission of the offences
(1)  For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 122.
(2)  A person commits an offence against this section if:
(a)  a corporation commits a corporate offence, and
(b)  the person is:
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and
(c)  the person:
(i)  aids, abets, counsels or procures the commission of the corporate offence, or
(ii)  induces, whether by threats or promises or otherwise, the commission of the corporate offence, or
(iii)  conspires with others to effect the commission of the corporate offence, or
(iv)  is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.
Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.
(5)  This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.
122B   Evidence as to state of mind of corporation
(1)  Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.
(2)  In this section, the state of mind of a person includes:
(a)  the knowledge, intention, opinion, belief or purpose of the person, and
(b)  the person’s reasons for the intention, opinion, belief or purpose.
123   Liability of employees and agents
(1)  Except as provided by subsection (2), it is no defence in proceedings for an offence under this Act or the regulations that the defendant was, at the time of the commission of the offence, an employee or agent of another person.
(2)  In any proceedings for an offence under this Act or the regulations, it is a defence for the defendant to prove that the defendant was under the personal supervision of the proprietor of the food business, or the owner or person in charge of the place or vehicle, in relation to which the offence was committed or of another person representing that proprietor, owner or person in charge.
124   Alternative verdicts for serious food offences
(1)  If, on the trial of a person charged with an offence against section 13 the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 16 (1), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against section 16 (1), and the person is liable to punishment accordingly.
(2)  If, on the trial of a person charged with an offence against section 14, the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 16 (2), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against section 16 (2), and the person is liable to punishment accordingly.
125   No defence to allege deterioration of sample
In any proceedings for an offence under this Act or the regulations, it is not a defence for a person to allege that any part of a sample retained for future comparison with a sample that has been analysed has from natural causes deteriorated, perished or undergone any material change in its constitution.
126   Onus to prove certain matters on defendant
In any proceedings for an offence under this Act or the regulations against a defendant who was responsible for making a statement on a package or in an advertisement relating to the origin or composition of the food in question or the therapeutic or nutritive properties of the food, being a statement that is alleged to have caused the food to be falsely described, the onus of proving the correctness of the statement is on the defendant.
127   Presumptions
In any proceedings for an offence under this Act or the regulations, it is presumed until, on the balance of probabilities, the contrary is proved that:
(a)  any substance or thing capable of being used as food that was sold or prepared for sale or conveyed or intended for sale was sold, prepared, conveyed or intended for sale for human consumption, and
(b)  any substance or thing capable of being used as food is not for human consumption if it is prominently marked as not being for human consumption, or with words to that effect, and
(c)  food that is part of a batch, lot or consignment of food of the same class or description is representative of all of the food in that batch, lot or consignment, and
(d)  each part of a sample of food divided for the purpose of analysis under this Act is of uniform composition with every other part of that sample, and
(e)  a person who sold food in the conduct of a food business and was not the proprietor of the food business sold the food as the agent of the proprietor, and
(f)  a person who appears from any statement on a package containing food for sale to have imported, manufactured, packed or prepared the food is the importer, manufacturer, packager or preparer of the food, as the case may be, and
(g)  food that has been sold to a consumer has been sold at some time by any person who respectively imported, manufactured, prepared or packed the food, and
(h)  a signature purporting to be that of the Food Authority, an authorised officer, the person in charge of an approved laboratory or an approved analyst is that signature.
128   Certificate evidence and evidence of analysts
(1)  A certificate of the result of an analysis obtained by the defendant or the prosecution in proceedings for an offence under this Act or the regulations is admissible in any such proceedings and evidence of the facts stated in it if:
(a)  the certificate was issued in accordance with section 74, and
(b)  a copy of the certificate is served by the person who obtained it on the other party to the proceedings at least 7 days before the hearing.
(2)  An analyst who carried out an analysis in relation to which a certificate is produced as evidence in proceedings as referred to in subsection (1) need not be called as a witness in the proceedings by the party producing the certificate unless the court hearing the proceedings so orders (whether on application made to it or by any other means).
(3)    (Repealed)
(4)  In any proceedings for an offence under this Act or the regulations:
(a)  a document purporting to be a copy of any registration, approval, order, notice or authority under this Act is evidence of that registration, approval, order, notice or authority, or
(b)  a document purporting to be signed by the Food Authority certifying that at a specified time or during a specified period:
(i)  there was or was not in force any registration, approval, order, notice or authority in relation to a specified person or persons, or
(ii)  that a registration, approval, order, notice or authority was or was not subject to specified conditions,
is evidence of the matters contained in the document, or
(c)  a document purporting to be signed by the Food Authority certifying:
(i)  as to the receipt or otherwise of any notice, application or payment, or
(ii)  that any amount of fees or other money is payable under this Act by a specified person and has not been paid at the date of the certificate,
is evidence of the matters contained in the document.
129   Power of court to order further analysis
(1)  In any proceedings for an offence under this Act or the regulations, the court may, if satisfied that:
(a)  there is a disagreement between the evidence of the analysts for the parties to the proceedings, and
(b)  it is in the interests of justice to do so,
order that the part or parts of any sample retained under section 71 be sent by the enforcement agency concerned to an analyst specified by the court or agreed to by the parties.
(2)  An order may be made under subsection (1) at the request of any party to the proceedings or on the court’s own motion.
(3)  An analyst who is sent a part or parts of a sample for analysis under this section is to make an analysis of that part or those parts for the information of the court.
(4)  Subject to section 131, the cost of an analysis under this section is to be borne by the enforcement agency concerned.
130   Disclosure by witnesses
(1)  In any proceedings for an offence under this Act or the regulations, a witness for the prosecution is not compelled to disclose the fact that the witness received information, the nature of the information received or the name of the person from whom the information was received.
(2)  An authorised officer appearing as a witness in any proceedings is not compelled to produce any document containing any confidential matter made or received in his or her capacity as an authorised officer.
(3)  Despite subsections (1) and (2), a court hearing proceedings for an offence under this Act or the regulations may order the disclosure of any matter, or the production of a document, referred to in those subsections if the court considers that it is necessary in the interests of justice.
131   Court may order costs and expenses
Without affecting any other power of a court to award costs, a court that hears proceedings for an offence under this Act or the regulations has power to make such orders as it thinks fit in respect of the costs and expenses of and incidental to the examination, seizure, detention, storage, analysis (including further analysis), destruction or other disposition of any thing the subject of those proceedings.
132   Court may order corrective advertising
A court by which a person (in this section referred to as the defendant) is found guilty of an offence under Part 2, may make one or both of the following orders:
(a)  an order requiring the defendant to disclose in a particular manner to the public, to a particular person or to a particular class of persons specified information, or information of a specified kind, which the defendant possesses or to which the defendant has access,
(b)  an order requiring the defendant to publish, at his or her own expense, in a manner and at times specified in the order, advertisements the terms of which are specified in the order.