Food Act 2003 No 43
Items seized by authorised officers
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.If the item is to be detained in the premises where it was found, the authorised officer:may place it in a room, compartment or cabinet in those premises, andmay mark, fasten and seal the door or opening providing access to that room, compartment or cabinet, andmust ensure that it is marked in such a way as to indicate that it has been seized under this Act.
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 description of the items seized,the reason for the seizure,an explanation of the person’s right to make an application to the court under section 52 for an order disallowing the seizure,the address of the place where the item is held if the item has been removed from the premises where it was seized,the name of the enforcement agency to whom the authorised officer reports.
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.
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:the person from whom it was seized, orsuch other person as appears to the enforcement agency to be entitled to it.
Forfeiture of item
An item seized under this Part is forfeited to the Crown: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, orif 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.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.
Cost of destruction or disposal of forfeited item
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.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.
Return of forfeited item
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.On being so delivered, any proprietary and other interests in the item that existed immediately before its forfeiture are restored.
Compensation to be paid in certain circumstances
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.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:no contravention of this Act or the regulations has been committed in relation to the item, andthe item cannot be returned or has in consequence of the seizure depreciated in value.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.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.Administrative Decisions Review Act 1997 of the determination within 10 days after the date on which notification of the determination was received.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
Application for order disallowing seizure
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.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.
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.
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: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, orbut otherwise the court must refuse the application.in the opinion of the court, there are exceptional circumstances justifying the making of such an order,
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: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,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.Despite subsection (1), the court is not to award an amount of compensation that exceeds its general monetary jurisdiction.The award of costs with respect to the hearing of the application lies in the discretion of the court.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.
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.