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Contents (2003 - 43)
Food Act 2003 No 43
Current version for 7 July 2017 to date (accessed 19 November 2017 at 04:29)
Part 11
Part 11 Miscellaneous
134   Protection from personal liability
(1)  Any matter or thing done or omitted to be done by an enforcement agency, an advisory committee, or a protected person does not, if the matter or thing was done or omitted in good faith for the purpose of executing any provision of this Act or any other law, subject a protected person personally to any action, liability, claim or demand.
(2)  In this section, protected person means any of the following:
(a)  the Minister,
(b)  any member of the enforcement agency or of the staff of the enforcement agency,
(c)  an authorised officer,
(d)  any person acting under the direction of an enforcement agency,
(e)  any member of an advisory committee,
(f)  a person employed by the Crown to carry out analyses for the purposes of this Act or a person carrying out analyses under the supervision of such a person,
(g)  any member of a body that is consulted for the purposes of section 103 or 105.
135   Exclusion of liability of the State and others
(1)  This section applies to civil proceedings for damages or other compensation brought against the State, the Food Authority or other enforcement agency or a protected person referred to in section 134.
(2)  Damages or other compensation is not payable in any such civil proceedings to the extent that:
(a)  the claim is made in connection with the handling, sale or consumption of food, and
(b)  the claim is based on alleged negligence or other breach of duty (including statutory duty) arising because of the exercise of, or the failure to exercise, any function under this Act.
(3)  This section does not affect any entitlement to compensation expressly conferred by this Act.
(4)  This section does not affect the operation of section 133G.
136   Disclosure of certain confidential information
(1)  A person who has, in connection with the administration or execution of this Act, obtained information relating to manufacturing secrets or commercial secrets or confidential processes must not disclose that information unless the disclosure is made:
(a)  with the consent of the person from whom the information was obtained, or
(b)  in connection with the administration or execution of this Act, or
(c)  for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d)  in accordance with a requirement imposed by or under this Act or any other law, or
(e)  to a person administering or enforcing a law of another jurisdiction that corresponds to this Act or any other law prescribed by the regulations, or
(f)  to the Commonwealth Food Authority, or
(g)  to a law enforcement authority, or
(h)  with other lawful excuse.
Maximum penalty: 500 penalty units.
(2)  A person is not guilty of an offence under this section if the information was publicly available at the time the disclosure concerned was made.
136A   Certain information may be provided to and by Food Authority
(1)  An enforcement agency is authorised to provide information:
(a)  to a relevant authority if the enforcement agency considers the provision of the information is necessary to enable the relevant authority to exercise its functions under the Public Health Act 2010, or
(b)  to another enforcement agency if the enforcement agency providing the information considers the provision of the information is necessary to enable the other enforcement agency to exercise its functions under this Act.
(2)  A relevant authority is authorised to provide information to an enforcement agency if the relevant authority considers the provision of the information is necessary to enable the enforcement agency to exercise its functions under this Act.
(3)  Information may be provided in accordance with this section despite any prohibition in, or the need to comply with any requirement of, any Act or law (in particular, the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002).
(4)  In this section, relevant authority means any of the following:
(a)  the Secretary of the Ministry of Health,
(b)  a public health organisation (within the meaning of the Health Services Act 1997).
137   Service of documents
(1)  A document that is authorised or required by this Act or the regulations to be served on any person may be served by:
(a)  in the case of a natural person:
(i)  delivering it to the person personally, or
(ii)  sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(iii)  sending it by facsimile transmission to the facsimile number of the person, or
(b)  in the case of a body corporate:
(i)  leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
(ii)  sending it by facsimile transmission to the facsimile number of the body corporate.
(2)  Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
137A   Recovery of fees and charges
Any charge, fee or money due to the Food Authority under this Act is recoverable by the Food Authority in a court of competent jurisdiction as a debt due to the Crown.
137B   Authorised officers may perform functions under Commonwealth legislation
The Minister may, on behalf of the State, enter into arrangements with a Commonwealth Minister or officer of the Commonwealth government in relation to the exercise under Commonwealth legislation, by authorised officers authorised under this Act, of functions relating to food inspection.
138   Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
139   Regulations
(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act, including regulations for or with respect to the following:
(a)  fees or charges for the purposes of a food safety scheme, including (but not limited to) licence fees and fees or charges for the provision of services in relation to the food safety scheme,
(b)  fees or charges for the purposes of this Act, including (but not limited to) fees or charges for the provision of information, or for the carrying out of any inspection or analysis for the purposes of this Act or any audit of a program relating to food safety implemented in accordance with a food safety scheme (whether or not the inspection, analysis or audit is requested or agreed to), or in connection with the notification of the conduct of a food business,
(c)  fees for the making of applications under this Act,
(c1)  the waiver or refund of any licence fees or other fees or charges under this Act,
(d)  requirements for the notification by food businesses of information relating to the conduct of those food businesses,
(e)  regulating or prohibiting any activity relating to the handling or sale of food.
(2)  A regulation may create an offence punishable by a penalty not exceeding 25 penalty units.
(2A)  A regulation for or with respect to licence fees or other fees or charges charged for the purposes of a food safety scheme may enable the Food Authority to determine a licence fee or other fee or charge or the basis on which a licence fee or other fee or charge is to be determined.
(2B)  Without limiting subsections (1) (a) and (b) and (2A), a fee or charge referred to in any of those provisions may cover the following matters:
(a)  the costs of the Food Authority in administering a food safety scheme and other related provisions of this Act,
(b)  the costs of the processing of applications for licences and for the grant or renewal of licences under food safety schemes,
(c)  other costs of providing services in relation to a food safety scheme (whether or not the provision of the service is requested or agreed to),
(d)  annual administration charges in respect of the exercise by enforcement agencies, or any class of enforcement agency, of all or specified functions under this Act in relation to food businesses that are not required to be licensed under this Act, or any class of such food businesses.
(2C)  The regulations may provide for an application to be made to the Civil and Administrative Tribunal by a person for an administrative review under the Administrative Decisions Review Act 1997 of a decision, of a class prescribed by the regulations, that is made under this Act or the regulations.
(2D)  The Minister is not to recommend the making of a regulation containing provisions for the purposes of subsection (2C) unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions.
(3)  The regulations may apply, adopt or incorporate, whether wholly or in part or with or without modifications, any standard, code (except the Food Standards Code) or other document as in force from time to time or as in force at a particular time.
140   Temporary emergency regulations modifying the Code
(1)  Regulations may be made for the purposes of this section that contain provisions that are in addition to, or in substitution for, one or more of the provisions of the Food Standards Code as those provisions of the Code apply in this State.
(2)  A regulation made for the purposes of this section must not be made unless the Minister has certified that such a regulation is necessary as it relates to an issue of public health and safety.
(3)  A provision of a regulation made for the purposes of this section does not continue in force:
(a)  except as provided by paragraph (b), for a period that is more than 12 months, or
(b)  if the provision is the same in substance as a provision of a regulation that was previously in force under this Act, for a period that, when added to the period for which that previous provision was in force, is more than 12 months.
141   Other regulations modifying the Code
(1)  Regulations may be made for the purposes of this section that contain provisions that are in addition to, or in substitution for, one or more of the provisions of the Food Standards Code as those provisions of the Code apply in this State.
(2)  A regulation made for the purposes of this section must not be made unless the Minister has certified that such a regulation does not have a significant impact on the implementation and enforcement of uniform food laws in Australia.
(3)  A regulation made for the purposes of this section may be made only with the approval of the Premier.
142   Repeals
The Food Act 1989 and the Food Regulation 2001 are repealed.
143   (Repealed)
144   Savings, transitional and other provisions
Schedule 2 has effect.