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Contents (2003 - 43)
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Food Act 2003 No 43
Current version for 7 July 2017 to date (accessed 21 July 2017 at 20:34)
Part 6
Part 6 Taking and analysis of samples
Division 1 Taking of samples
66A   Application of Division
This Division applies only to the taking of samples by an authorised officer in the exercise of powers under Part 4.
67   Proprietor to be informed
Whenever an authorised officer obtains a sample of food for the purposes of analysis, an authorised officer must, either before or as soon as practicable after obtaining the sample, inform:
(a)  the proprietor of the food business from which the sample is to be taken or was taken, or
(b)  if the proprietor is not present or readily available, the person from whom the sample was obtained or who was in charge of the food from which the sample was taken,
of the authorised officer’s intention to have the sample analysed.
68   Payment for sample
An authorised officer when obtaining a sample of food must pay, or tender payment of:
(a)  the amount prescribed by the regulations as the amount payable for the sample concerned, or
(b)  if no such amount is prescribed by the regulations, an amount equal to the current market value of the sample,
to the person from whom the sample is obtained.
69   Samples from vending machines
Sections 67 and 68 do not apply to the obtaining of a sample by an authorised officer from a vending machine if the authorised officer obtains the sample by making proper payment for it and the authorised officer cannot identify anyone who at the time appears to be in charge of the machine.
70   Packaged food
An authorised officer who takes a sample of food for the purposes of this Act that is contained in a closed package intended for retail sale must take the whole of the package unless the package contains two or more smaller packages of the same food.
71   Procedure to be followed
(1)  This section applies to the taking of samples for the purposes of this Act except to the extent that the Food Standards Code otherwise provides.
(2)  An authorised officer who obtains a sample of food for the purposes of analysis must (unless subsection (3) applies):
(a)  divide the sample into 3 separate parts and mark and seal or fasten each part in such manner as its nature will permit, and
(b)  leave one part with the proprietor of the food business or any other person from whom the sample was obtained or a person appearing to be the employee or agent of that proprietor or other person, and
(c)  submit one of the remaining parts for analysis, and
(d)  retain the other remaining part for future comparison.
(3)  If the division of a sample for analysis into 3 separate parts in accordance with subsection (2) would in the opinion of the authorised officer:
(a)  so affect or impair the composition or quality of the sample as to render the separate parts unsuitable for accurate analysis, or
(b)  result in the separate parts being of an insufficient size for accurate analysis, or
(c)  render the sample in any other way unsuitable for analysis, including a method of analysis prescribed by the regulations in relation to the food from which the sample was taken,
the authorised officer may take, in accordance with this section, as many samples as the authorised officer considers necessary to enable an accurate analysis to be carried out and may deal with the sample or samples in such manner as is appropriate in the circumstances.
(4)  If a sample of food is taken by an authorised officer in the form of separate or severable objects, it is not necessary, in dividing that sample into parts in accordance with this section, to divide any one of those objects, and it is sufficient compliance with this section if the authorised officer:
(a)  takes a number of those objects, and
(b)  divides the number so taken into the requisite number of parts so that each part consists of one or more than one of the separate or severable objects, and
(c)  deals with those parts in accordance with the preceding provisions of this section.
72   Samples to be submitted for analysis
An authorised officer must submit any sample obtained in accordance with this Division for analysis under Division 2 unless no longer of the opinion that the sample ought to be analysed.
Division 2 Procedures relating to analyses
73   Compliance with Food Standards Code
Except as provided by the regulations, a person who carries out an analysis for the purposes of this Act is to comply with any requirements of the Food Standards Code relating to the carrying out of analyses.
74   Certificate of analysis
(1)  This section applies to an analysis that is carried out:
(a)  by an approved laboratory, or
(b)  by an approved analyst, or
(c)  under the supervision of an approved analyst,
for the purposes of this Act.
(2)  On completion of an analysis to which this section applies:
(a)  the person in charge of the laboratory at which the analysis was carried out, or
(b)  the approved analyst who carried out the analysis, or
(c)  the approved analyst who supervised the carrying out of the analysis,
is to give the person who requested the analysis, or an agent of the person, a certificate of analysis, in the approved form, that complies with the requirements of subsection (3).
(3)  The certificate of analysis must:
(a)  be dated and signed by the person in charge of the laboratory at which the analysis was carried out or by the approved analyst who carried out the analysis or who supervised the carrying out of the analysis, and
(b)  contain a written report of the analysis that sets out the findings, and
(c)  specify the requirements, if any, of the Food Standards Code relating to the carrying out of the analysis and certify that the analysis was carried out in accordance with those requirements.
Division 3 Approval of laboratories
75   Approval of laboratories
(1)  The Food Authority may approve laboratories for the purposes of carrying out analyses under this Act.
(2)  A person providing or intending to provide analysis services at a laboratory may make an application, in the approved form, to the Food Authority for an approval of the laboratory under this Division.
(3)  The application is to be accompanied by:
(a)  such information as the Food Authority requires to determine the application, and
(b)  the fee, if any, prescribed by the regulations.
(4)  The Food Authority may, after considering an application for approval:
(a)  grant the application, with or without conditions, or
(b)  refuse the application.
(5)  If the Food Authority grants an application for approval, it must issue the applicant with a written approval that sets out the conditions to which the approval is subject.
(6)  If the Food Authority refuses an application for approval, the Food Authority must give notice of the refusal in writing to the applicant setting out the reasons for the refusal.
76   Term of approval
Except during any period of suspension, an approval of a laboratory granted under this Division remains in force until cancelled.
77   Approved laboratory to give notice of certain interests
The person in charge of an approved laboratory must notify the Food Authority of any direct or indirect interest in any food business that a person concerned in the management of, or an employee of, the approved laboratory has as soon as possible after becoming aware of that interest.
Maximum penalty: 50 penalty units.
78   Variation of conditions or suspension or cancellation of approval of laboratory
(1)  The Food Authority may vary the conditions of, or suspend or cancel, the approval of a laboratory under this Division.
(2)  An approval of a laboratory may be suspended or cancelled on one or more of the following grounds:
(a)  if the Food Authority is satisfied that a person providing services at the laboratory has wilfully or negligently contravened or failed to comply with any provision of this Act or the regulations,
(b)  if the Food Authority is satisfied that a person providing services at the laboratory has contravened a condition to which the approval is subject,
(c)  if the Food Authority is satisfied that a person in charge of, concerned in the management of or employed by, the laboratory has a direct or indirect interest in any food business that, in the opinion of the Food Authority, could affect the carrying out of the laboratory’s functions under this Act,
(d)  at the request of the person in charge of the laboratory,
(e)  for any other reason that the Food Authority considers appropriate.
(3)  The Food Authority may only vary the conditions of, or suspend or cancel, the approval of a laboratory:
(a)  after having given the person in charge of the laboratory:
(i)  written reasons of its intention to vary, suspend or cancel, and
(ii)  an opportunity to make submissions, and
(b)  after having considered any submissions duly made by the person.
(4)  Subsection (3) does not apply to the cancellation of an approval at the request of the person in charge of the laboratory.
(5)  A variation of the conditions of, or the suspension or cancellation of, the approval of a laboratory:
(a)  must be made by notice in writing, and
(b)  must be served on the person in charge of the laboratory, and
(c)  takes effect at the time at which the notice is served or at a later time specified in the notice.
79   Administrative review of decisions relating to approval
(1)  An applicant for an approval of a laboratory under this Division, or the holder of such an approval, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions relating to the application or approval:
(a)  the grant or refusal of an application for approval of a laboratory under this Division,
(b)  the imposition of conditions on an approval,
(c)  the variation of conditions of an approval,
(d)  the suspension or cancellation of an approval.
(2)  An application under this section may only be made within 10 days after service of:
(a)  the relevant written approval or notice of refusal under section 75, in the case of an application for the administrative review of a decision referred to in subsection (1) (a) or (b), or
(b)  the relevant notice of the variation, suspension or cancellation under section 78, in the case of an application for the administrative review of a decision referred to in subsection (1) (c) or (d).
80   List of approved laboratories to be maintained
(1)  The Food Authority is to prepare and maintain a list of approved laboratories.
(2)  The list is to be made publicly available and is to be revised at least annually.
Division 4 Approval of analysts
81   Approval of persons to carry out analyses
(1)  The Food Authority may approve natural persons for the purposes of carrying out analyses under this Act.
(2)  A natural person may make an application, in the approved form, to the Food Authority for an approval under this Division.
(3)  The application is to be accompanied by:
(a)  such information as the Food Authority requires to determine the application, and
(b)  the fee, if any, prescribed by the regulations.
(4)  The Food Authority may, after considering an application for approval:
(a)  grant the application, with or without conditions, or
(b)  refuse the application.
(5)  If the Food Authority grants an application for approval, it must issue the applicant with a written approval that sets out the conditions to which the approval is subject.
(6)  If the Food Authority refuses an application for approval, the Food Authority must give notice of the refusal in writing to the applicant setting out the reasons for the refusal.
82   Term of approval
Except during any period of suspension, an approval of a person granted under this Division remains in force until cancelled.
83   Approved analyst to give notice of certain interests
A person who is an approved analyst must notify the Food Authority of any direct or indirect interest in any food business that the person has as soon as possible after becoming aware of that interest.
Maximum penalty: 50 penalty units.
84   Variation of conditions or suspension or cancellation of approval of analyst
(1)  The Food Authority may vary the conditions of, or suspend or cancel, an approval under this Division.
(2)  An approval of a person under this Division may be suspended or cancelled on one or more of the following grounds:
(a)  if the Food Authority is satisfied that the person has wilfully or negligently contravened any provision of this Act or the regulations,
(b)  if the Food Authority is satisfied that the person has contravened a condition to which the approval is subject,
(c)  if the Food Authority is satisfied that the person has a direct or indirect interest in any food business that, in the opinion of the Food Authority, could affect the carrying out of the person’s functions under this Act,
(d)  at the request of the person,
(e)  for any other reason that the Food Authority considers appropriate.
(3)  The Food Authority may only vary the conditions of, or suspend or cancel, the approval of a person under this Division:
(a)  after having given the person:
(i)  written reasons of its intention to vary, suspend or cancel, and
(ii)  an opportunity to make submissions, and
(b)  after having considered any submissions duly made by the person.
(4)  Subsection (3) does not apply to the cancellation of an approval at the request of the person to whom the approval relates.
(5)  A variation of the conditions of, or the suspension or cancellation of, an approval of a person under this Division:
(a)  must be made by notice in writing, and
(b)  must be served on the person, and
(c)  takes effect at the time at which the notice is served or at a later time specified in the notice.
85   Administrative review of decisions relating to approval
(1)  An applicant for an approval under this Division, or the holder of such an approval, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions of the Food Authority relating to the application or approval:
(a)  the grant or refusal of an application for approval under this Division, or
(b)  the imposition of conditions on an approval, or
(c)  the variation of conditions of an approval, or
(d)  the suspension or cancellation of an approval.
(2)  An application under this section may only be made within 10 days after service of:
(a)  the relevant written approval or notice of refusal under section 81, in the case of an application for the administrative review of a decision referred to in subsection (1) (a) or (b), or
(b)  the relevant notice of the variation, suspension or cancellation under section 84, in the case of an application for the administrative review of a decision referred to in subsection (1) (c) or (d).
86   List of approved analysts to be maintained
(1)  The Food Authority is to prepare and maintain a list of approved analysts.
(2)  The list is to be made publicly available and is to be revised at least annually.