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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 16 August 2017 at 23:27)
Part 8
Part 8 Regulation of food businesses
Division 1 Notification of conduct of food businesses
100   Notification of conduct of food businesses
(1)  The proprietor of a food business must not conduct the food business unless the proprietor has given written notice, in the approved form, of the information specified in the Food Safety Standards that is to be notified to the appropriate enforcement agency before the business is conducted.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
(2)  Subsection (1) does not require the giving of a notice in relation to the conduct of a food business that is primary food production unless a food safety scheme provides that subsection (1) applies to the food business or to a class of food businesses that includes the food business concerned.
101   Exemption in relation to notification of information
Section 21 (to the extent to which it requires notification of the information referred to in section 100) and section 100 do not apply to the following food businesses:
(a)  any food business that is not required by the Food Safety Standards to notify that information, or
(b)  any food business that is the subject of a licence or some other form of authorisation under this Act or under a law prescribed by the regulations.
101A   List of food businesses to be maintained
(1)  Each enforcement agency is to prepare and maintain a list of:
(a)  each food business notified to it under section 100, and
(b)  each food business the subject of a licence granted by it under a food safety scheme.
(2)  The list is to be revised at least annually.
(3)  The list is to be made available for public inspection at an office of the relevant enforcement agency during ordinary business hours (whether in document or electronic form) or on the Internet.
(4)  The Food Authority may charge a fee, determined by the Authority on a cost-recovery basis, for any such inspection of the list (other than inspection on the Internet).
(5)  The Food Authority is to make copies of, or extracts from, the list available on request on payment of a reasonable copying fee determined by the Authority.
Division 2 Food safety schemes
102   Regulations relating to establishment of food safety schemes
(1)  The regulations may prescribe food safety schemes in relation to a type, class or description of food, food business or activity carried out in respect of food.
(2)  In particular, the regulations prescribing a food safety scheme may make provision for or with respect to the following:
(a)  regulating the handling or sale of food,
(b)  prohibiting activities in relation to the handling or sale of food,
(c)  without limiting the generality of paragraphs (a) and (b), regulating the temperatures at which food must be kept,
(d)  the classification, marking or other identification of food,
(e)  requiring the licensing of activities in relation to the handling or sale of food,
(f)  requiring the licensing of any person, business, premises, vehicle or equipment in relation to the handling or sale of food,
(g)  the imposition of conditions on licences,
(h)  the suspension or cancellation of licences,
(i)  appeals from, or reviews of, decisions made under the regulations in relation to licences or applications for the granting of licences,
(j)  requiring the preparation, implementation, maintenance and monitoring of food safety programs for food businesses to ensure that the provisions of this Act and the regulations are complied with,
(k)  the certification and auditing of programs referred to in paragraph (j),
(l)  the manner of taking samples for the purposes of a food safety scheme,
(m)  the methods of analysis to be observed when carrying out analyses for the purposes of a food safety scheme,
(n)  establishing committees or other bodies with specified functions relating to the monitoring of a food safety scheme at a local level and the making of recommendations on the operation of a food safety scheme at that local level,
(o)  providing for the funding of those committees or bodies by the Food Authority and the accounting by those committees or bodies of any money received from the Food Authority,
(p)  the assessment of risks associated with the handling or sale of different types, classes or descriptions of food or the carrying out of different activities relating to food as part of the same business operation,
(q)  requiring the preparation of plans in the event of the need for a recall of any food,
(r)  requiring persons involved in the handling or sale of food to possess specified qualifications, skills, knowledge or expertise,
(s)  designating the persons who are to be responsible for compliance with the obligations imposed by the regulations,
(t)  requiring the giving of information, returns or notices to an enforcement agency,
(u)  requiring the collection of licence fees and charges on behalf of an enforcement agency and the remission of any such fees or charges to the enforcement agency,
(v)  the deduction of licence fees and other charges owed to an enforcement agency from amounts otherwise payable to the person liable for the fees or charges,
(w)  the liability of persons with respect to amounts for licence fees or other charges collected on behalf of an enforcement agency,
(x)  authorising the imposition of a levy under section 117C and providing for the amount of the levy, or the basis on which it is to be calculated, and for its recovery,
(y)  establishing a method of consultation with the relevant industry or sector of industry for the purposes of the ongoing review of the operation of the food safety scheme,
(z)  establishing consultative bodies for the purposes of paragraph (y) and providing for the membership and procedure of those bodies (including providing, where appropriate, for consumer representation on those bodies),
(aa)  enabling an enforcement agency to undertake functions relating to the education and training of persons in safe food practices in respect of the type, class or description of food, food business or activity to which the food safety scheme relates,
(ab)  without limiting paragraph (d), requiring the branding of sheep meat to identify whether it is lamb or hogget, regardless of whether the purpose of the requirement relates to the safety of meat for human consumption.
(3)  Without limiting subsection (2) (g), the regulations may permit the imposition of conditions of the following kinds on licences issued under a food safety scheme:
(a)  a condition prohibiting the passing on of costs related to licences, or other fees charged under this Act, to another person subject to licence or other fees under this Act,
(b)  a condition requiring a person licensed under this Act to collect, on behalf of the relevant enforcement agency, licence fees or other charges payable by another person under this Act and to remit those fees or charges to the enforcement agency.
(4)  For the purpose of preventing risks to the safety of food for human consumption, the regulations establishing a food safety scheme may extend to anything that is intended as food for animal consumption, or the carrying on of a business or any activity involving the handling or sale of anything that is intended as food for animal consumption.
(5)  It is to be presumed, in the absence of evidence to the contrary, that a regulation relating to anything that is intended as food for animal consumption was made for the purpose referred to in subsection (4).
(6)–(10)    (Repealed)
103   Consultation to be undertaken on regulations establishing food safety schemes
(1)  The Minister is to ensure that consultation with the relevant industry or sector of industry is undertaken before the making of any regulation that establishes a food safety scheme.
(2)  The provisions of section 5 (Regulatory impact statements) of the Subordinate Legislation Act 1989 apply to a regulation that establishes a food safety scheme in the same way as they apply to a principal statutory rule (within the meaning of that Act).
(3)  In addition to any matters that are required to be included in a regulatory impact statement under the Subordinate Legislation Act 1989, the following matters are to be included in such a statement prepared in relation to a proposed regulation establishing a food safety scheme:
(a)  an assessment of food safety risks in the industry or sector of industry to which the food safety scheme relates in accordance with national and international standards for risk assessment,
(b)  a statement of whether the food safety scheme is based on national standards or supplements national standards, and for those standards imposed by the food safety scheme that are not national standards, an explanation of why those standards are required,
(c)  an explanation as to whether the food safety scheme is performance-based or prescriptive, or a combination of both, and the rationale for the approach adopted taking into account the assessed food safety risks in the relevant industry or sector of industry and the capacity of the people involved in that industry or sector of industry to deal adequately with those risks,
(d)  an explanation of the scope of the food safety scheme, including the persons who have responsibilities under the scheme,
(e)  an explanation of any agreements involving the Food Authority and other government agencies as to the regulation of the food, food business or activity carried out in respect of food to which the food safety scheme relates,
(f)  if a food safety scheme includes a licensing scheme, an explanation of why the licensing scheme is necessary to ensure the safety of food,
(g)  an assessment of any quality assurance scheme operating in the industry or sector of industry to which the food safety scheme relates, including an assessment of the extent to which the scheme satisfies the requirements of any relevant national standard.
(4)  Consultation is taken to have been undertaken on a food safety scheme for the purposes of subsection (1) if notice of the proposed regulation establishing the food safety scheme has been published in accordance with section 5 (2) (a) of the Subordinate Legislation Act 1989, consultation on the regulation has taken place in accordance with section 5 (2) (b) of that Act and comments and submissions received have been appropriately considered in accordance with section 5 (2) (c) of that Act.
104   Offences relating to food safety schemes
(1)  A person who handles or sells food in a manner that contravenes a provision of a food safety scheme is guilty of an offence.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
(2)  A person who carries on any food business or activity for which a licence is required by the regulations is guilty of an offence unless the person is the holder of such a licence.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
(3)  The holder of a licence granted under the regulations who contravenes or fails to comply with a condition of the licence is guilty of an offence.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
(4)  The proprietor of a food business must ensure that any requirement imposed by a food safety scheme in relation to the preparation, implementation, maintenance, monitoring, certification or auditing of a food safety program for the food business is complied with.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
(5)  The proprietor of a food business must ensure that any food safety program required to be prepared by a food safety scheme in relation to the food business is audited at least as frequently as is determined under section 93 (1), or as redetermined under section 96, in relation to the food business.
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
Note.
 An offence against subsection (1)–(4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122.
105   Industry consultation
(1)  The Food Authority is to ensure that consultation on the following matters is undertaken with the relevant industry or sector of industry to which a food safety scheme relates and that such consultation is undertaken in accordance with the provisions of the food safety scheme:
(a)  the continuing operation of a food safety scheme,
(b)  any proposed amendment of a food safety scheme.
(2)  The Minister may confer additional functions on any consultative body established by a food safety scheme relating to any or all of the following:
(a)  the provision of advice to the Minister on matters relating to the relevant sector of industry the subject of the scheme,
(b)  assisting in achieving industry support for the implementation of the scheme,
(c)  assisting in promoting the safe handling of the types of food covered by the scheme.
Division 3 Requirements relating to food safety supervisors
106   Definitions
In this Division:
approved training organisation means a registered training organisation approved under section 106H.
food safety supervisor—see section 106B.
food safety supervisor certificate—see section 106B (3).
food to which this Division applies—see section 106A.
mobile catering business means a food business that provides food catering services involving:
(a)  the transporting of food to which this Division applies to the location at which it is to be served, whether or not it is to be served by the food business, and
(b)  the processing of the food, whether or not at the location to which it is transported,
but does not include a food business commonly known as a takeaway food business or home delivery food business or that sells the food from temporary premises.
potentially hazardous food means food that is required to be kept at more than or less than a particular temperature to minimise the growth of any pathogenic micro-organisms that may be present in the food or to prevent the formation of toxins in the food.
process, in relation to food, means to do anything to the food in order to prepare it for sale, including (but not limited to) chopping, cooking, drying, fermenting, heating, pasteurising, thawing or washing.
ready-to-eat food means food that is in a state in which it is ordinarily consumed, but does not include nuts in the shell or raw fruit or vegetables that are intended to be hulled, peeled or washed by the consumer.
temporary premises means premises comprising a tent or stall or the like from which food is sold by retail on an occasional basis only, such as for a fete, fair, market or other event.
106A   Application of Division to certain food
This Division applies to food that:
(a)  is ready-to eat food, and
(b)  is potentially hazardous food, and
(c)  is not packaged in a way that is prescribed by the regulations as prepackaged.
106B   Food safety supervisors
(1)  For the purposes of this Act, a food safety supervisor for premises is a person who:
(a)  holds a food safety supervisor certificate that has been issued within the immediately preceding period of 5 years, and
(b)  does not hold the position of food safety supervisor for any other premises or for a mobile catering business, and
(c)  has the authority to supervise other persons handling food at, or from, the premises and to ensure that the handling is done safely.
(2)  For the purposes of this Act, a food safety supervisor for a mobile catering business is a person who:
(a)  holds a food safety supervisor certificate that has been issued within the immediately preceding period of 5 years, and
(b)  does not hold the position of food safety supervisor for any other such business or for the premises of any other food business, and
(c)  has the authority to supervise other persons handling food in the course of the carrying on of the business and to ensure that the handling is done safely.
(3)  A food safety supervisor certificate is a certificate stating that the person to whom it is issued is qualified to hold the position of a food safety supervisor for the purposes of this Act and that has been issued in accordance with the regulations by an approved training organisation or by another person or body prescribed by the regulations.
(4)  The regulations may make provision for or with respect to the issuing of food safety supervisor certificates, including the qualifications that a person must have to be issued with a food safety supervisor certificate.
(5)  Without limiting subsection (4), any such regulation may provide for the Food Authority to determine those qualifications or any aspect of those qualifications.
(6)  In making a determination in relation to qualifications, the Food Authority is to be satisfied that a person holding those qualifications will know how to recognise, prevent and alleviate the hazards associated with the handling of food.
(7)  Nothing in this Division prevents:
(a)  the proprietor of a food business from holding the position of food safety supervisor for premises so long as the proprietor complies with the requirements of subsection (1), or
(b)  the proprietor of a mobile catering business from holding the position of food safety supervisor for the business so long as the proprietor complies with the requirements of subsection (2), or
(c)  more than one person holding the position of food safety supervisor in respect of particular premises or a mobile catering business.
106C   Appointment of food safety supervisor for premises
(1)  The proprietor of a food business must ensure that before any food to which this Division applies is processed and sold by retail on premises in the course of carrying on the business at least one food safety supervisor has been appointed for the premises.
(2)  The proprietor of a food business must ensure that at all times at which food to which this Division applies is processed and sold by retail on premises in the course of carrying on the food business there continues to be at least one person appointed as food safety supervisor for the premises.
(3)  It is a defence to a prosecution for an offence against subsection (2) if the proprietor of the food business concerned establishes that:
(a)  a person had been appointed as food safety supervisor for the relevant premises but had ceased to be appointed as food safety supervisor, and
(b)  after that person had ceased to be so appointed and before the appointment (if any) of another person as food safety supervisor for the premises, food to which this Division applies was processed and sold by retail on the premises on not more than 30 days (whether or not consecutive).
(4)  This section does not apply to a food business that is a mobile catering business.
Maximum penalty: 50 penalty units in the case of an individual and 100 penalty units in the case of a corporation.
106D   Appointment of food safety supervisor for mobile catering business
(1)  The proprietor of a mobile catering business must ensure that before food to which this Division applies is processed in the course of the business at least one food safety supervisor has been appointed for the business.
(2)  The proprietor of a mobile catering business must ensure that at all times at which food to which this Division applies is processed in the course of carrying on the business there continues to be at least one person appointed as food safety supervisor for the business.
(3)  It is a defence to a prosecution for an offence against subsection (2) if the proprietor of the mobile catering business concerned establishes that:
(a)  a person had been appointed as food safety supervisor for the business but had ceased to be appointed as food safety supervisor, and
(b)  after that person had ceased to be so appointed and before the appointment (if any) of another person as food safety supervisor for the business, food to which this Division applies was processed in the course of the business on not more than 30 days (whether or not consecutive).
Maximum penalty: 50 penalty units in the case of an individual and 100 penalty units in the case of a corporation.
106E, 106F   (Repealed)
106G   Inspection of food safety supervisor certificates
(1)  If a person is appointed for the purposes of this Division as food safety supervisor for premises on which food to which this Division applies is processed and sold by retail in the course of carrying on a food business, the proprietor of the food business must ensure that a copy of the person’s food safety supervisor certificate is kept on the premises and is produced for inspection on request by an authorised officer.
(2)  If a person is appointed for the purposes of this Division as food safety supervisor for a mobile catering business, the proprietor of the business must ensure that a copy of the person’s food safety supervisor certificate is kept at the proprietor’s business address and is produced for inspection on request by an authorised officer.
Maximum penalty: 25 penalty units in the case of an individual and 50 penalty units in the case of a corporation.
106H   Approval of registered training organisations to issue food safety supervisor certificates
(1)  The Food Authority may approve a registered training organisation (within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth) for the purposes of issuing food safety supervisor certificates.
(2)  Regulations may be made for or with respect to approvals granted under this section.
(3)  Without limiting subsection (2), the regulations may make provision for or with respect to the following:
(a)  applications for approvals,
(b)  the granting of approvals,
(c)  conditions of approvals,
(d)  duration of approvals,
(e)  suspension and revocation of approvals.
(4)  The Food Authority is to prepare and maintain a list of approved training organisations.
(5)  The list is to be made publicly available and is to be revised at least annually.
106I   Fees and charges payable under Division
(1)  The regulations may make provision for or with respect to the following:
(a)  fees and charges payable to the Food Authority under this Division, including charges payable to the Food Authority by an approved training organisation or other person or body in relation to the issue by the organisation, person or body of food safety supervisor certificates,
(b)  the imposition of fees and charges by an approved training organisation or other person or body for the issuing of food safety supervisor certificates (but not fees and charges relating to training provided by any such organisation, person or body), including limiting the imposition of any such fee or charge.
(2)    (Repealed)
106J   Exemptions from operation of Division
(1)  The regulations may exempt, with or without conditions, any class of persons, food businesses, premises, food or activities from the operation of all or any of the provisions of this Division.
(2)  Any such exemption has no effect during any period in which a condition to which it is subject is not complied with.
Division 4 Requirements relating to display of nutritional information for food
106K   Definitions
In this Division:
menu means a menu, in printed or electronic form, that lists or otherwise shows one or more items of food and that:
(a)  is on a board, poster, leaflet or the like at the premises from which the item or items of food in the menu are sold, or
(b)  is distributed or available outside of the premises from which the item or items of food in the menu are sold by means of the internet or a printed leaflet.
ready-to-eat food means food that is in a state in which it is ordinarily consumed, but does not include nuts in the shell or raw fruit or vegetables that are intended to be hulled, peeled or washed by the consumer.
sell means sell as defined in section 4 (1), but by retail only.
standard food item—see section 106L.
standard food outlet—see section 106M.
106L   Meaning of “standard food item”
(1)  In this Division, standard food item means an item of ready-to-eat food for sale that is sold in servings that are standardised for portion and content and that:
(a)  is listed or otherwise shown on a menu, or
(b)  is displayed for sale with a price tag or label or an identifying tag or label,
and includes any item of ready-to-eat food for sale that is of a kind, class or description prescribed by the regulations.
(2)  If a number of standard food items are shown or displayed for sale as referred to in subsection (1) as a combination, the combination is to be treated for the purposes of this Division as a single standard food item.
(3)  If an item of food referred to in subsection (1) is shown or displayed for sale in different standard sizes or portions (for example, small, medium or large), each standard size or portion of the item of food is to be treated as a separate standard food item.
(4)  Despite subsection (1), standard food item does not include an item of food that is packaged in a way that is prescribed by the regulations as prepackaged.
106M   Meaning of “standard food outlet”
(1)  In this Division, a standard food outlet means premises at which standard food items are sold by a food business if:
(a)  the food business sells standard food items at other premises or while operating in a chain of food businesses that sell standard food items, and
(b)  at least one of the standard food items that are sold at the premises has been standardised for portion and content so as to be substantially the same as standard food items of that type sold at those other premises or by the other food businesses in the chain.
(2)  For the purposes of this section, a food business is operating in a chain of food businesses that sell standard food items if:
(a)  it is operating as one of a group of food businesses that sell standard food items under franchise arrangements with a parent business or under common ownership or control, or
(b)  it sells standard food items under the same trading name as a group of other food businesses that sell standard food items.
106N   Requirement for certain standard food outlets to display nutritional information
(1)  This section applies to a standard food outlet that is of a kind, class or description prescribed by the regulations.
(2)  The proprietor of a standard food outlet to which this section applies must ensure that:
(a)  nutritional information of a kind prescribed by the regulations is displayed in relation to standard food items that are sold at the outlet, and
(b)  the nutritional information is determined in accordance with any requirements of the regulations for nutritional information of that kind, and
(c)  the nutritional information is displayed in the manner and locations prescribed by the regulations for nutritional information of that kind.
(3)  A person must not intentionally contravene subsection (2).
Maximum penalty: 500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation.
(4)  A person must not contravene subsection (2).
Maximum penalty: 100 penalty units in the case of an individual and 500 penalty units in the case of a corporation.
(5)  If, on the trial of a person charged with an offence against subsection (3) the court is not satisfied that the person committed the offence but is satisfied that the person committed an offence against subsection (4), the court may find the person not guilty of the offence charged but guilty of an offence against subsection (4), and the person is liable to punishment accordingly.
106O   Voluntary display of nutritional information to meet certain requirements
(1)  This section applies to a standard food outlet other than a standard food outlet to which section 106N applies.
(2)  The proprietor of a standard food outlet to which this section applies must not display nutritional information of a kind prescribed by the regulations in relation to standard food items that are sold at the outlet unless the nutritional information:
(a)  is determined in accordance with any requirements of the regulations for nutritional information of that kind, and
(b)  is displayed in the manner and locations prescribed by the regulations for nutritional information of that kind.
Maximum penalty: 100 penalty units in the case of an individual and 500 penalty units in the case of a corporation.
106P   Regulations relating to explanatory material about nutritional information
The regulations may make provision for or with respect to regulating or prohibiting the display or distribution by a standard food outlet of explanatory material or any other material about nutritional information for food or for any type or class of food.
106Q   Exemptions from operation of Division
(1)  The regulations may exempt, with or without conditions, any class of persons, food businesses, premises, food or activities from the operation of all or any of the provisions of this Division.
(2)  Any such exemption has no effect during any period in which a condition to which it is subject is not complied with.
106R   Review of Division and regulations under the Division
(1)  The Minister is to review this Division and any regulations made under this Division to determine whether:
(a)  the policy objectives of this Division and those regulations remain valid, and
(b)  the terms of this Division and those regulations remain appropriate for securing those objectives, and
(c)  the terms of this Division or those regulations, or both, should be amended so that the nutritional information to be displayed includes information relating to fat and salt.
(2)  The review is to be undertaken as soon as possible after 1 February 2012.
(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after that date.