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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
PRIMARY PRODUCE SAFETY BILL 2011
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Object of Act
4. Interpretation
5. Meaning of primary production activity
6. Interaction with other Acts
7. Act binds Crown
PART 2 - ADMINISTRATION
8. Chief Inspector of Primary Produce Safety
PART 3 - FOOD SAFETY SCHEMES
9. Food safety schemes
10. Contents of food safety schemes
PART 4 - ACCREDITATION
11. Authority given by accreditation
12. Application for accreditation
13. Temporary accreditation
14. Deciding an application for accreditation
15. Conditions of accreditation
[Bill 46]-I
16. Periodic fees and returns
17. Variation of accreditation
18. Application for variation of accreditation
19. Transfer of accreditation
20. Suspension or revocation of accreditation
21. Surrender of accreditation
22. Review of decisions relating to accreditation
PART 5 - OFFENCES
Division 1 - Interpretation
23. Meaning of unsafe for human consumption in relation to primary
produce
24. Meaning of unsuitable for human consumption in relation to
primary produce
Division 2 - Serious offences
25. Intentional or reckless supply of unsafe primary produce
26. Negligent supply of unsafe primary produce
Division 3 - Other offences
27. Supply of unsafe primary produce
28. Supply of unsuitable primary produce
29. Unauthorised production of primary produce
30. Official marks
31. Compliance with Food Standards Code
Division 4 - General defences
32. Defence of due diligence
33. Defence of mistaken but reasonable belief not available
34. Alternative verdicts for serious primary produce offences
PART 6 - AUTHORISED OFFICERS
35. Appointment of authorised officers
36. Powers of authorised officers
37. Search warrants
38. Identification of authorised officers
2
39. Failure to comply with requirements of authorised officers
40. False information
41. Interfering with seized items
42. Obstructing or impersonating authorised officers
43. Threatening or abusing authorised officer
PART 7 - SEIZURE BY AUTHORISED OFFICERS
44. Seizure order
45. Seizure of primary produce suspected of being unsafe or
unsuitable
46. Compensation for seizure, &c., of primary produce
47. Seizure of thing that may be used as evidence
PART 8 - COMPLIANCE NOTICES AND PROHIBITION ORDERS
48. Meaning of legislative requirement in this Part
49. Compliance notice
50. Prohibition order
51. Compensation
52. Review of decisions relating to prohibition orders
PART 9 - OTHER REMEDIES
53. Infringement notices
PART 10 - FOOD SAFETY PROGRAMS
54. Food safety programs
55. Auditing of food safety programs
56. Frequency of audits for food safety purposes
57. Check audits
PART 11 - AUDITORS
58. Approval of food safety auditor
59. Term of approval
60. Declaration of interest
61. Variation of conditions, or suspension or cancellation, of
approval of food safety auditor
3
62. Review of decisions relating to approval
63. Duties of food safety auditors
64. Reporting requirements
65. Certificates of approval of food safety auditors
66. Identification of food safety auditor
67. Register of food safety auditors to be maintained
68. Obstructing or impersonating food safety auditors
69. Threatening or abusing food safety auditors
PART 12 - EVIDENTIARY AND PROCEDURAL PROVISIONS
70. Nature of proceedings for offences
71. Institution of proceedings
72. Offences by employers
73. Offences by bodies corporate
74. Liability of employees and agents
75. Continuing offence
76. Presumptions
77. Evidence
78. Proceedings relating to third persons
79. Disclosure by witnesses
80. Court may order costs and expenses
81. Court may order forfeiture
PART 13 - MISCELLANEOUS
82. Protection from liability
83. Bribery
84. Disclosure of information
85. Certificate of compliance with food safety scheme
86. Regulations
87. Saving and transitional arrangements
88. Administration of Act
89. Consequential amendments
4
90. Legislation repealed
91. Legislation Further repealed
92. Legislation rescinded
93. Legislation Further rescinded
94. Legislation revoked
95. Legislation Further revoked
SCHEDULE 1 - PROVISIONS WITH RESPECT TO SEARCH
WARRANTS
SCHEDULE 2 - CONSEQUENTIAL AMENDMENTS
SCHEDULE 3 - LEGISLATION REPEALED
SCHEDULE 4 - LEGISLATION FURTHER REPEALED
SCHEDULE 5 - LEGISLATION RESCINDED
SCHEDULE 6 - LEGISLATION FURTHER RESCINDED
SCHEDULE 7 - LEGISLATION REVOKED
SCHEDULE 8 - LEGISLATION FURTHER REVOKED
5
6
PRIMARY PRODUCE SAFETY BILL 2011
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
20 September 2011
(Brought in by the Minister for Primary Industries and Water,
the Honourable Bryan Alexander Green)
A BILL FOR
An Act to provide for food safety matters relating to the
production of primary produce and for other purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Primary Produce
Safety Act 2011.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 46] 7
Primary Produce Safety Act 2011
Act No. of
s. 3 Part 1 - Preliminary
3. Object of Act
The objects of this Act include -
(a) to provide for the application in
Tasmania of the Food Standards Code as
it relates to primary production activities;
and
(b) to develop food safety schemes for
primary industries that reduce risks to
consumers associated with unsafe or
unsuitable primary produce; and
(c) to promote consumer confidence in the
safety and integrity of Tasmanian
primary produce; and
(d) to facilitate the trade of Tasmanian
primary produce by ensuring it meets
national and international food safety
standards.
4. Interpretation
(1) In this Act, unless the contrary intention
appears -
"abattoir animal" means an animal that is
not living in the wild that is -
(a) a bovine animal; or
(b) an equine animal; or
(c) a sheep, pig, goat or deer; or
8
Primary Produce Safety Act 2011
Act No. of
Part 1 - Preliminary s. 4
(d) an animal, other than poultry or
seafood, that is prescribed by the
regulations;
"accreditation" means an accreditation in
force under Part 4 and includes a
temporary accreditation;
"accredited producer" means a person
holding a valid accreditation under
Part 4;
"animal" means any member of the animal
kingdom (other than a human), whether
alive or dead, including -
(a) any amphibian, bird, crustacean,
fish, insect, mammal, mollusc,
and reptile; and
(b) any egg, embryo, ova or sperm of
such a member of the animal
kingdom; and
(c) any carcass or part of any carcass
of such a member of the animal
kingdom;
"approved food safety auditor" means a
food safety auditor approved under
Part 11;
"approved food safety program" means a
food safety program approved for an
accreditation under Part 4;
"audit" includes inspection;
9
Primary Produce Safety Act 2011
Act No. of
s. 4 Part 1 - Preliminary
"authorised officer" means a person
appointed to be an authorised officer
under section 35, and includes the Chief
Inspector;
"body corporate" includes -
(a) a body corporate established
under a food safety scheme
pursuant to section 9; and
(b) a body corporate established
under another enactment or in the
exercise of prerogative rights of
the Crown to administer or
control any department, business,
undertaking or public institution
on behalf of the State;
"check audit" means an audit referred to in
section 57;
"Chief Inspector" means the person
appointed to be, or acting in the office of,
the Chief Inspector of Primary Produce
Safety and includes a body corporate that
has been designated any functions and
powers of the Chief Inspector under a
food safety scheme;
"compliance notice" means a compliance
notice referred to in section 49;
"corresponding law" means a law of the
Commonwealth or another State or a
Territory relating to food safety that
corresponds with -
10
Primary Produce Safety Act 2011
Act No. of
Part 1 - Preliminary s. 4
(a) this Act or an Act repealed by
this Act; or
(b) the Food Act 2003;
"court" means the Magistrates Court;
"dairy primary production" means the
production of milk or colostrum for
further processing for human
consumption and includes the keeping,
grazing, feeding and milking of animals
and the storage of milk on the premises at
which the animals were milked;
"dairy processing" includes the manufacture
of dairy products;
"dairy products" includes -
(a) milk; and
(b) colostrum; and
(c) liquid milk products; and
(d) cream and thickened cream; and
(e) butter, butter concentrate,
buttermilk, concentrated
buttermilk, dairy blend, ghee and
anhydrous milk fat (butter oil);
and
(f) casein, caseinate and cheese; and
(g) whey, whey cream and
concentrated whey cream; and
11
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Act No. of
s. 4 Part 1 - Preliminary
(h) cultured milk and yoghurt; and
(i) ice-cream and ice-cream mix; and
(j) buttermilk powder, lactose
powder, milk sugar, powdered
milk, skim milk powder, whey
powder, milk protein powder and
other milk concentrates; and
(k) any other product prescribed by
the regulations;
"dairy transport business" means a
business, enterprise or activity involving
the collection and transport of milk or
colostrum from premises where dairy
primary production is carried out to
premises where dairy processing is
carried out, or the transport of bulk milk
or dairy products between premises
where dairy processing is carried out;
"diseased" means infected with, or affected
by, a condition, or in a state, that is
prescribed by the regulations;
"egg" means an egg from any avian (bird)
species;
"food" has the same meaning as in the Food
Act 2003;
"food safety auditor" means a person
approved as such under Part 11;
"food safety program" - see Part 10;
12
Primary Produce Safety Act 2011
Act No. of
Part 1 - Preliminary s. 4
"food safety scheme" - see Part 3;
"Food Standards Code" means the Australia
New Zealand Food Standards Code as
defined in the Food Standards Australia
New Zealand Act 1991 of the
Commonwealth;
"game" means any animal living in the wild
but does not include seafood;
"meat" means the whole or any part of the
carcass or offal of any slaughtered
abattoir animal, poultry or game that is
intended for human consumption and is
raw, but does not include seafood or a
product produced from seafood;
"meat processing" means -
(a) the slaughter of abattoir animals
to produce meat or meat
products; and
(b) the slaughter of poultry to
produce meat or meat products;
and
(c) the production of meat or meat
products from slaughtered
abattoir animals or poultry, or
from game slaughtered in the
wild; and
(d) the storage, transportation and
packaging of any meat or meat
products produced by an activity
13
Primary Produce Safety Act 2011
Act No. of
s. 4 Part 1 - Preliminary
referred to in paragraph (a), (b) or
(c); and
(e) any other activity that is
prescribed by the regulations;
"meat product" means a product -
(a) that wholly or partially is derived
from meat; and
(b) that is intended for human
consumption -
and includes any product which complies
with paragraphs (a) and (b) and which is
partially processed, prepared for further
processing or fully processed;
"offal" means the brain, thymus gland,
pancreas gland, liver, spleen, kidney,
heart, lung, intestine, tongue, blood, head
or tail of any slaughtered animal or any
part of the body of any slaughtered
animal which is removed in the course of
dressing the body;
"pet" means any carnivorous animal kept by a
person;
"pet food" means any part of, or product that
results from the processing of any part of,
the body of any animal, being part or
product produced for consumption by
pets;
14
Primary Produce Safety Act 2011
Act No. of
Part 1 - Preliminary s. 4
"pet food production" includes the
production, storage, transportation and
packaging of pet food;
"poultry" means a domesticated bird;
"premises" includes -
(a) land (whether or not vacant); and
(b) the whole or any part of a
building, tent, stall or other
structure (whether of a permanent
or temporary nature); and
(c) a pontoon; and
(d) a vehicle (other than a food
transport vehicle while it is
engaged in the transport of food);
and
(e) an area of water used in the
production, storage or growing of
seafood;
"primary produce" includes any of the
following:
(a) an animal, plant or other
organism, or part of an animal,
plant or other organism, intended
for consumption by humans;
(b) any food produced by any
primary production activity;
15
Primary Produce Safety Act 2011
Act No. of
s. 4 Part 1 - Preliminary
(c) any pet food produced by any
primary production activity;
(d) any other thing that is prescribed
by the regulations;
"primary produce business" means a
business, enterprise or activity
comprising one or more primary
production activities, regardless of
whether the business, enterprise or
activity concerned is of a commercial,
charitable or community nature;
"primary production activity" - see
section 5;
"producer" means a person who engages in
one or more primary production activities
and includes a proprietor of a primary
produce business;
"prohibition order" means a prohibition
order referred to in section 50;
"proprietor" of a primary produce business
means -
(a) the person carrying on the
primary produce business; or
(b) if that person cannot be
identified, the person in charge of
the primary produce business;
"regulations" means regulations made under
this Act;
16
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Act No. of
Part 1 - Preliminary s. 4
"seafood" means all aquatic animals intended
for human consumption, but excludes
amphibians, mammals and reptiles;
"Secretary" means the Secretary of the
Department;
"slaughter" means to kill any animal for the
production of meat, meat products or pet
food;
"supplier" means any person who engages in
the supply of primary produce and may
include a producer;
"supply" includes the following:
(a) deliver, sell, trade, give or
distribute, whether for valuable
consideration or not;
(b) offer or agree to supply;
(c) cause or permit to supply;
(d) hold in possession for the purpose
of supply;
(e) produce or pack for the purpose
of supply;
"unsafe for human consumption", in
relation to primary produce - see
section 23;
"unsuitable for human consumption", in
relation to primary produce - see
section 24;
17
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Act No. of
s. 5 Part 1 - Preliminary
"vehicle" means any means of transport,
whether self-propelled or not, and
whether used on land or sea or in the air.
(2) For the purposes of this Act, premises are
associated with each other if they are occupied
or used by the same primary produce business.
5. Meaning of primary production activity
(1) In this Act -
"primary production activity" means the
production and processing of primary
produce and includes the following:
(a) the growing, raising, cultivation,
picking, harvesting, collection or
catching of primary produce;
(b) the sorting or grading of primary
produce on the premises on
which it was grown, raised,
cultivated, picked, harvested,
collected or caught, or on
premises that are associated with
those premises;
(c) the treating, freezing, packing,
refrigeration, storage or washing
of primary produce on the
premises on which it was grown,
raised, cultivated, picked,
harvested, collected or caught, or
18
Primary Produce Safety Act 2011
Act No. of
Part 1 - Preliminary s. 5
on premises that are associated
with those premises;
(d) the shucking of molluscs;
(e) the transportation or delivery of
primary produce on, from or
between premises on which it
was grown, raised, cultivated,
picked, harvested, collected or
caught;
(f) the management, breeding,
transportation and supply of live
animals for the production of
primary produce;
(g) meat processing;
(h) dairy primary production, dairy
processing or carrying on a dairy
transport business;
(i) pet food production;
(j) any other activity that is
prescribed by the regulations.
(2) However, "primary production activity" does
not include -
(a) the sale or service of food by way of
retail; or
(b) cooking or handling food in the course of
preparing a meal for a person; or
19
Primary Produce Safety Act 2011
Act No. of
s. 6 Part 1 - Preliminary
(c) any other activity that is prescribed by
the regulations.
(3) In this section -
"treating" of primary produce means -
(a) enhancing the appearance of the
primary produce including, for
example, waxing, oiling or
colouring the produce, without
substantially transforming its
nature; or
(b) dealing with the primary produce
solely in order to eliminate or
control pathogenic organisms,
toxins and contaminants in the
produce, or to ripen it.
6. Interaction with other Acts
This Act is in addition to and does not limit or
derogate from any other Act.
7. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
20
Primary Produce Safety Act 2011
Act No. of
Part 2 - Administration s. 8
PART 2 - ADMINISTRATION
8. Chief Inspector of Primary Produce Safety
(1) The Secretary may appoint a State Service
officer or State Service employee employed in
the Department who is suitably qualified to be
Chief Inspector of Primary Produce Safety.
(2) The Secretary may appoint a State Service
officer or State Service employee employed in
the Department who is suitably qualified to act
in the office of Chief Inspector of Primary
Produce Safety.
(3) A person appointed under subsection (1) or (2)
may hold, or act in, the office of Chief Inspector
in conjunction with State Service employment.
(4) The Chief Inspector may by an authority in
writing authorise a State Service officer or State
Service employee to exercise such of the powers
conferred on the Chief Inspector as may be
specified in the authority, and anything done in
pursuance of such an authority has the like effect
as if it were done by the Chief Inspector.
(5) A food safety scheme may designate, for the
purposes of the scheme, any or all the powers
and functions of the Chief Inspector under this
Act to a body corporate.
(6) The Chief Inspector is an authorised officer for
the purposes of this Act and may exercise the
powers and functions of an authorised officer in
21
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Act No. of
s. 8 Part 2 - Administration
addition to the powers and functions of Chief
Inspector.
22
Primary Produce Safety Act 2011
Act No. of
Part 3 - Food Safety Schemes s. 9
PART 3 - FOOD SAFETY SCHEMES
9. Food safety schemes
(1) The regulations may establish a food safety
scheme.
(2) Subject to section 10, a food safety scheme may
do any or all of the following:
(a) specify the primary produce or class of
primary produce and the primary
production activities or class of primary
production activities to which the scheme
applies;
(b) make provision for any matter relating to
how and where any primary production
activity under the scheme is to be carried
out including, for example, matters
relating to the location, design, condition
and operation of any premises, vehicle or
equipment used in the primary
production activity;
(c) prohibit any primary production activity
or class of primary production activities;
(d) specify circumstances in which a person
who engages or proposes to engage in
any primary production activity under
the scheme must be accredited;
(e) make provision for any matter relating to
the accreditation of persons who engage
23
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Act No. of
s. 9 Part 3 - Food Safety Schemes
or propose to engage in any primary
production activity under the scheme;
(f) designate for the purposes of the scheme
the powers and functions of the Chief
Inspector under this Act (including any
powers of delegation) to a body
corporate;
(g) establish a body corporate to perform the
role of Chief Inspector under the scheme
and make provision relating to the body
corporate, including provision for the
membership of the body corporate,
conditions of membership, procedural
matters, functions and powers,
delegation, financial accounting and
auditing and reporting to the Minister;
(h) specify the circumstances in which a
person who engages or proposes to
engage in any primary production
activity under the scheme must prepare
and implement a food safety program;
(i) make provision for any matter relating to
the content, preparation, implementation
and auditing of food safety programs
required under the scheme and the
approval of such programs by the Chief
Inspector;
(j) make provision for any matter relating to
the classification, marking or
identification of primary produce under
the scheme;
24
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Act No. of
Part 3 - Food Safety Schemes s. 9
(k) make provision for any matter relating to
the wholesomeness, sanitation, hygiene
and prevention of disease or pathogens in
primary produce under the scheme, and
the blending or mixing of primary
produce under the scheme with any other
thing;
(l) make provision for any matter relating to
the qualifications, skills or expertise
required of a person to engage in any
primary production activity, or to handle
primary produce, under the scheme;
(m) make provision for any matter relating to
auditing requirements under the scheme
including, for example, the
qualifications, skills or expertise required
of a person to conduct audits under the
scheme;
(n) make provision for any matter relating to
the recall of primary produce under the
scheme;
(o) make provision for any matter relating to
the monitoring and record keeping by
persons who engage in any primary
production activity under the scheme,
and the giving of information and returns
relating to food safety matters by such
persons;
(p) make provision for any matter relating to
the issuing of any direction, warning or
notice required to deal with any risk to
25
Primary Produce Safety Act 2011
Act No. of
s. 9 Part 3 - Food Safety Schemes
public safety in relation to any primary
produce or primary production activity
under the scheme;
(q) make provision for any matter relating to
the levy or payment of fees and charges
under the scheme;
(r) make provision for any matter relating to
the establishment of a public register of
persons holding an accreditation under
the scheme;
(s) make provision for the adoption of any
program, code, standards or guidelines
relevant to any primary produce or
primary production activity under the
scheme;
(t) make provision for any matters relating
to compliance and enforcement in respect
of the scheme including the creation of
offence provisions;
(u) make provision for exemptions to
specific persons or classes of persons
from some or all of the requirements of
the scheme relating to any primary
produce or primary production activity
under the scheme;
(v) make provision for any matter relating to
the review or revision of the scheme;
(w) make provision for any other matter
relating to the safety or suitability of any
26
Primary Produce Safety Act 2011
Act No. of
Part 3 - Food Safety Schemes s. 10
primary produce or primary production
activity under the scheme.
(3) A food safety scheme may provide that
contravention of, or failure to comply with, the
scheme or a provision of the scheme is an
offence punishable by a fine -
(a) in the case of a body corporate, not
exceeding 250 penalty units; or
(b) in the case of an individual, not
exceeding 50 penalty units.
10. Contents of food safety schemes
Without limiting section 9, a food safety scheme
must, as a minimum -
(a) state the primary produce or class of
primary produce and the primary
production activities or class of primary
production activities to which the scheme
applies; and
(b) if a body corporate is to perform the role
of Chief Inspector under the scheme,
designate, for the purposes of the
scheme, all the requisite functions and
powers of the Chief Inspector to be
performed and exercised by the body
corporate; and
(c) state who must be accredited under the
scheme and who must comply with the
scheme; and
27
Primary Produce Safety Act 2011
Act No. of
s. 10 Part 3 - Food Safety Schemes
(d) state who must prepare and implement a
food safety program under the scheme;
and
(e) state the auditing requirements under the
scheme; and
(f) establish a public register of persons
holding an accreditation under the
scheme.
28
Primary Produce Safety Act 2011
Act No. of
Part 4 - Accreditation s. 11
PART 4 - ACCREDITATION
11. Authority given by accreditation
(1) An accreditation granted to a person authorises
the person to engage in the primary production
activities -
(a) stated in the accreditation; and
(b) on the conditions stated in the
accreditation and in accordance with this
Act.
(2) The accreditation does not authorise the
accredited producer to do anything prohibited
under another Act.
12. Application for accreditation
(1) An application for an accreditation -
(a) must be made to the Chief Inspector; and
(b) must conform to the requirements of the
Chief Inspector about its form, contents
and the manner in which it is made; and
(c) must be accompanied by the fee
prescribed in the regulations.
(2) If the applicant is required to prepare and
implement a food safety program under a food
safety scheme, the application must set out the
details of the food safety program.
29
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Act No. of
s. 13 Part 4 - Accreditation
(3) The Chief Inspector may, by written notice,
require the applicant -
(a) to give the Chief Inspector further
information, documents or records
relevant to the application; or
(b) to allow persons authorised by the Chief
Inspector to inspect premises, vehicles,
plant or equipment proposed to be used
by the applicant in connection with the
activities proposed to be authorised by
the accreditation.
(4) The Chief Inspector may refuse the application if
the applicant does not comply with a
requirement under subsection (3).
(5) The applicant may, with the approval of the
Chief Inspector or at the request of the Chief
Inspector, amend the application before the
Chief Inspector has finished considering it.
13. Temporary accreditation
(1) The Chief Inspector may, pending determination
of an application for accreditation, grant a
temporary accreditation under this section.
(2) The temporary accreditation remains in force
until whichever of the following occurs first:
(a) the end of the period stated in the
temporary accreditation;
30
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Act No. of
Part 4 - Accreditation s. 14
(b) the accreditation applied for under
section 12 is granted or the application is
refused.
(3) The period referred to in subsection (2) must not
exceed 3 months after the grant of the temporary
accreditation.
(4) Except where the contrary intention appears, a
reference in this Act to an accreditation includes
a reference to a temporary accreditation.
14. Deciding an application for accreditation
(1) The Chief Inspector must consider an application
for accreditation made in accordance with
section 12 and either grant the accreditation with
conditions or refuse the application.
(2) The Chief Inspector may grant the accreditation
sought by the applicant only if satisfied -
(a) that the applicant is a suitable person to
hold such accreditation; and
(b) if the applicant is a body corporate, that
each director of the body corporate is a
suitable person to be the director of a
body corporate that holds such an
accreditation; and
(c) that the applicant satisfies any
requirements for accreditation set out in
the food safety scheme applicable to the
primary production activity the applicant
proposes to engage in.
31
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Act No. of
s. 14 Part 4 - Accreditation
(3) For the purposes of determining the suitability of
a person under subsection (2), the Chief
Inspector may, without limitation, take into
account -
(a) any offence committed by the person
against -
(i) this Act or an Act repealed by
this Act; or
(ii) the Food Act 2003; or
(iii) a prescribed Act; or
(iv) a corresponding law; and
(b) any offence of dishonesty committed by
the person.
(4) If the applicant is required to prepare and
implement a food safety program under a food
safety scheme, the Chief Inspector may grant the
accreditation only if satisfied that the food safety
program complies with the relevant food safety
scheme.
(5) If the Chief Inspector grants an accreditation in
circumstances where subsection (4) applies, the
applicant's food safety program becomes the
approved food safety program for the
accreditation.
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Primary Produce Safety Act 2011
Act No. of
Part 4 - Accreditation s. 15
15. Conditions of accreditation
(1) The Chief Inspector may impose any conditions
on an accreditation that are reasonable and
relevant, having regard to the food safety scheme
applicable to the primary production activity the
accredited producer is to engage in.
(2) Without limiting subsection (1), an accreditation
is subject to the following conditions:
(a) the accredited producer must -
(i) comply with the relevant food
safety scheme in all respects; and
(ii) if there is an approved food
safety program for the
accreditation, comply with the
food safety program in all
respects; and
(iii) engage in the primary production
activities authorised by the
accreditation only at the premises
or place stated in the
accreditation; and
(iv) allow a food safety auditor to
enter any premises or place stated
in the accreditation to conduct
audits under this Act;
(b) the accredited producer must pay, in
accordance with the requirements of the
Chief Inspector, the reasonable costs and
33
Primary Produce Safety Act 2011
Act No. of
s. 16 Part 4 - Accreditation
expenses associated with audits
conducted under this Act.
(3) An accredited producer who contravenes a
condition of the accreditation is guilty of an
offence.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
16. Periodic fees and returns
(1) For each period prescribed in the regulations, an
accredited producer must, not later than the date
prescribed in the regulations -
(a) pay to the Chief Inspector the fee
prescribed in the regulations; and
(b) lodge with the Chief Inspector a return
that conforms to the requirements of the
Chief Inspector about its form, contents
and the manner in which it is made.
(2) If an accredited producer fails to pay a fee or
lodge a return in accordance with this section,
the Chief Inspector may, by written notice,
require the producer to make good the default
and, in addition, to pay to the Chief Inspector the
34
Primary Produce Safety Act 2011
Act No. of
Part 4 - Accreditation s. 17
amount prescribed in the regulations as a penalty
for default.
(3) If an accredited producer fails to comply with
the notice within 14 days after the giving of the
notice, the accreditation is suspended until the
notice is complied with.
(4) If an accredited producer fails to comply with
the notice within 6 months after the giving of the
notice, the accreditation is cancelled.
(5) The Chief Inspector must cause written notice of
the suspension or cancellation to be given to the
producer.
17. Variation of accreditation
(1) The Chief Inspector may, by written notice to
the accredited producer -
(a) impose further conditions on the
accreditation; and
(b) vary or revoke conditions of the
accreditation; and
(c) approve a food safety program for the
accreditation; and
(d) vary an approved food safety program
for the accreditation.
(2) The Chief Inspector's power under this section
may be exercised on the Chief Inspector's own
35
Primary Produce Safety Act 2011
Act No. of
s. 18 Part 4 - Accreditation
initiative or on application by the accredited
producer.
(3) The imposition or variation of a condition, or the
approval or variation of a food safety program,
will not, except with the agreement of the
accredited producer, take effect until 6 months
after the giving of the notice under
subsection (1).
(4) An accredited producer must, at the request of
the Chief Inspector and within the period stated
by the Chief Inspector, return an accreditation to
the Chief Inspector for the purposes of recording
any action under this section.
Penalty: Fine not exceeding 10 penalty units.
18. Application for variation of accreditation
(1) An application by an accredited producer
referred to in section 17(2) -
(a) must be made to the Chief Inspector; and
(b) must conform to the requirements of the
Chief Inspector about its form, contents
and the manner in which it is made; and
(c) must be accompanied by the fee
prescribed in the regulations.
(2) The Chief Inspector may, by written notice,
require the applicant -
36
Primary Produce Safety Act 2011
Act No. of
Part 4 - Accreditation s. 19
(a) to give the Chief Inspector further
information, documents or records
relevant to the application; or
(b) to allow persons authorised by the Chief
Inspector to inspect premises, vehicles,
plant or equipment proposed to be used
by the applicant in connection with
activities authorised by the accreditation.
(3) The Chief Inspector may refuse the application if
the applicant does not comply with a
requirement under subsection (2).
(4) The applicant may, with the Chief Inspector's
approval or at the Chief Inspector's request,
amend the application before the Chief Inspector
has finished considering it.
19. Transfer of accreditation
(1) Subject to this section and any condition of the
accreditation excluding or limiting the right of
transfer under this section, the Chief Inspector
may approve or refuse an application for the
transfer of an accreditation under this section.
(2) An application for the transfer of an
accreditation -
(a) must be made to the Chief Inspector by
both parties to the transfer; and
(b) must conform to the requirements of the
Chief Inspector about its form, contents
and the manner in which it is made; and
37
Primary Produce Safety Act 2011
Act No. of
s. 19 Part 4 - Accreditation
(c) must be accompanied by the fee
prescribed in the regulations.
(3) The Chief Inspector may approve the transfer of
an accreditation only if satisfied -
(a) that the proposed transferee is a suitable
person to hold such an accreditation; or
(b) if the proposed transferee is a body
corporate, that each director of the body
corporate is a suitable person to be the
director of a body corporate that holds
such an accreditation; or
(c) that the proposed transferee has the
capacity, or has made or proposes to
make appropriate arrangements, to
satisfy any requirements for accreditation
set out in the food safety scheme
applicable to the primary production
activity the proposed transferee is to
engage in.
(4) For the purposes of determining the suitability of
a person under subsection (3), the Chief
Inspector may, without limitation, take into
account -
(a) any offence committed by the person
against -
(i) this Act or an Act repealed by
this Act; or
(ii) the Food Act 2003; or
38
Primary Produce Safety Act 2011
Act No. of
Part 4 - Accreditation s. 20
(iii) a prescribed Act; or
(iv) a corresponding law; and
(b) any offence of dishonesty committed by
the person.
20. Suspension or revocation of accreditation
(1) The Chief Inspector may by written notice
suspend or revoke an accreditation if satisfied
that -
(a) the accreditation was obtained
improperly; or
(b) the accredited producer -
(i) has ceased to engage in the
primary production activity
authorised by the accreditation;
or
(ii) has not paid fees or charges
payable to the Chief Inspector or
an approved food safety auditor
within the required time; or
(iii) has committed an offence against
this Act or the Food Act 2003; or
(iv) has been convicted of an
indictable offence.
(2) A suspension under this section may be for a
specified period, or until the fulfilment of
39
Primary Produce Safety Act 2011
Act No. of
s. 20 Part 4 - Accreditation
specified conditions, or until further order of the
Chief Inspector.
(3) A suspension under this section may be
expressed to take effect at a specified future
time, or to take effect at a specified future time
unless a specified condition is fulfilled.
(4) Before the Chief Inspector suspends or revokes
an accreditation under this section, the Chief
Inspector must -
(a) give written notice to the accredited
producer specifying the reasons for the
proposed suspension or revocation; and
(b) allow the accredited producer at least 14
days within which to make submissions
to the Chief Inspector in relation to the
proposed suspension or revocation.
(5) If the Chief Inspector suspends or revokes an
accreditation under this section, the producer
must return the accreditation to the Chief
Inspector within 14 days of the date on which
the suspension or revocation takes effect.
Penalty: Fine not exceeding 10 penalty units.
(6) If the Chief Inspector revokes an accreditation
under this section, the person who held the
accreditation is excluded from applying for a
new accreditation under this Act for a period of
12 months from the date of revocation.
40
Primary Produce Safety Act 2011
Act No. of
Part 4 - Accreditation s. 21
21. Surrender of accreditation
An accreditation may be surrendered to the
Chief Inspector.
22. Review of decisions relating to accreditation
(1) A person aggrieved by a decision of the Chief
Inspector under this Part relating to any of the
following may apply to the Magistrates Court
(Administrative Appeals Division) for a review
of the decision:
(a) an application for an accreditation;
(b) an application to transfer an
accreditation;
(c) the conditions of an accreditation other
than a temporary accreditation under
section 13;
(d) the suspension or revocation of an
accreditation other than a temporary
accreditation under section 13;
(e) the approval of a food safety program;
(f) the variation of an approved food safety
program.
(2) An application under this section must be made
within 28 days after service of the written notice
of the relevant decision by the Chief Inspector.
41
Primary Produce Safety Act 2011
Act No. of
s. 23 Part 5 - Offences
PART 5 - OFFENCES
Division 1 - Interpretation
23. Meaning of unsafe for human consumption in
relation to primary produce
(1) For the purposes of this Act, primary produce is
"unsafe for human consumption" if the primary
produce might cause physical harm to a person
who consumes it, assuming -
(a) it was, after it was produced but before
being consumed by the person, properly
subjected to all processes (if any) that are
relevant to its reasonable intended use;
and
(b) it was consumed by the person according
to its reasonable intended use.
(2) However, for the purposes of this Act, primary
produce is not unsafe for human consumption
merely because its inherent nutritional chemical
properties cause, or its inherent nature causes,
adverse reactions only in persons with allergies
or sensitivities that are not common to the
majority of persons.
(3) In this section -
"processes" includes processes involving
storage and preparation.
42
Primary Produce Safety Act 2011
Act No. of
Part 5 - Offences s. 24
24. Meaning of unsuitable for human consumption in
relation to primary produce
(1) For the purposes of this Act, primary produce is
"unsuitable for human consumption" if the
primary produce -
(a) is damaged, deteriorated or perished to
an extent that affects its reasonable
intended use; or
(b) contains any damaged, deteriorated or
perished substance that affects its
reasonable intended use; or
(c) is the product of a diseased animal, or an
animal that has died otherwise than by
slaughter, and has not been declared by
or under another Act to be safe for
human consumption; or
(d) contains a biological or chemical agent,
or other matter or substance, that is
foreign to the nature of the primary
produce; or
(e) contains or has been mixed with pet
food.
(2) However, primary produce is not unsuitable for
human consumption merely because -
(a) at any particular time before it is supplied
for human consumption it contains an
agricultural or veterinary chemical; or
43
Primary Produce Safety Act 2011
Act No. of
s. 25 Part 5 - Offences
(b) when it is supplied for human
consumption it contains an agricultural
or veterinary chemical, so long as it does
not contain the chemical in an amount
that contravenes the Food Standards
Code; or
(c) it contains a metal or non-metal
contaminant (within the meaning of the
Food Standards Code) in an amount that
does not contravene the permitted level
for the contaminant as specified in the
Food Standards Code; or
(d) it contains any matter or substance that is
permitted by the Food Standards Code.
(3) In this section -
"slaughter" of an animal includes the killing
of an animal in the process of capturing,
taking or harvesting it for the purposes of
preparing it for use as food.
Division 2 - Serious offences
25. Intentional or reckless supply of unsafe primary
produce
A person must not supply primary produce for
human consumption that the person knows or
reasonably suspects is unsafe for human
consumption.
Penalty: In the case of -
44
Primary Produce Safety Act 2011
Act No. of
Part 5 - Offences s. 26
(a) a body corporate, a fine not
exceeding 5 000 penalty units;
or
(b) an individual, a fine not
exceeding 1 000 penalty units
or imprisonment for a term not
exceeding 2 years, or both.
26. Negligent supply of unsafe primary produce
A person must not supply primary produce for
human consumption that the person reasonably
ought to know is unsafe for human consumption.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 3 750 penalty units;
or
(b) an individual, a fine not
exceeding 750 penalty units.
Division 3 - Other offences
27. Supply of unsafe primary produce
(1) A person must not supply primary produce for
human consumption that is unsafe for human
consumption.
Penalty: In the case of -
45
Primary Produce Safety Act 2011
Act No. of
s. 28 Part 5 - Offences
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
(2) An offence against this section is an offence of
strict liability.
28. Supply of unsuitable primary produce
(1) A person must not supply primary produce for
human consumption that is unsuitable for human
consumption.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 000 penalty units;
or
(b) an individual, a fine not
exceeding 400 penalty units.
(2) An offence against this section is an offence of
strict liability.
29. Unauthorised production of primary produce
(1) A person must not engage in any primary
production activity to which a food safety
scheme applies other than under a valid
accreditation where such accreditation is
required by the scheme.
46
Primary Produce Safety Act 2011
Act No. of
Part 5 - Offences s. 30
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
(2) An offence against this section is an offence of
strict liability.
30. Official marks
(1) For the purpose of this section, an official mark
is a unique identifying brand, mark, label or
stamp that is placed on primary produce -
(a) as a unique identifier required by the
Chief Inspector as a condition of
accreditation; or
(b) to comply with a food safety scheme; or
(c) otherwise to comply with this Act.
(2) A person must not, without the approval of the
Chief Inspector -
(a) manufacture, have in his or her
possession, apply, alter or interfere with
an official mark; or
(b) manufacture, have in his or her
possession or apply a mark resembling,
47
Primary Produce Safety Act 2011
Act No. of
s. 31 Part 5 - Offences
or apparently intended to resemble, an
official mark; or
(c) manufacture or have in his or her
possession an official marking device.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 500 penalty units; or
(b) an individual, a fine not
exceeding 100 penalty units.
(3) An offence against this section is an offence of
strict liability.
31. Compliance with Food Standards Code
A person must comply with any requirement
imposed on the person by a provision of the
Food Standards Code in relation to the conduct
of any primary production activity.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
48
Primary Produce Safety Act 2011
Act No. of
Part 5 - Offences s. 32
Division 4 - General defences
32. Defence of due diligence
(1) In any proceedings for an offence under this Act
it is a defence if it is proved that the person took
all reasonable precautions and exercised all due
diligence to prevent the commission of the
offence by the person or by another person under
the person's control.
(2) Without limiting the ways in which a person
may satisfy the requirements of subsection (1), a
person satisfies those requirements if it is
proved -
(a) that the commission of the offence was
due to -
(i) an act or default of another
person; or
(ii) reliance on information supplied
by another person; and
(b) that -
(i) the person carried out all such
checks of the primary produce
concerned as were reasonable in
all the circumstances; or
(ii) it was reasonable in the
circumstances to rely on checks
carried out by another person.
49
Primary Produce Safety Act 2011
Act No. of
s. 33 Part 5 - Offences
(3) Without limiting the ways in which a person
may satisfy the requirements of this section, a
person may satisfy those requirements by
proving that in the case of an offence relating to
a primary production activity for which a food
safety program has been prepared in accordance
with a food safety scheme, the person complied
with the food safety program.
(4) In this section -
"another person" does not include a person
who was -
(a) an employee or agent of the
defendant; or
(b) in the case of a defendant that is a
body corporate, a director,
employee or agent of the
defendant.
33. Defence of mistaken but reasonable belief not
available
In any proceedings for an offence under
Division 3, it is no defence that the person had a
mistaken but reasonable belief as to the facts that
constituted the offence.
50
Primary Produce Safety Act 2011
Act No. of
Part 5 - Offences s. 34
34. Alternative verdicts for serious primary produce
offences
If, on the trial of a person charged with an
offence under Division 2, the trier of fact is not
satisfied that the person committed the offence
but is satisfied that the person committed an
offence under Division 3, the trier of fact may
find the person not guilty of the offence charged
but guilty of an offence under Division 3, and
the person is liable to punishment accordingly.
51
Primary Produce Safety Act 2011
Act No. of
s. 35 Part 6 - Authorised Officers
PART 6 - AUTHORISED OFFICERS
35. Appointment of authorised officers
(1) The Secretary may appoint any of the following
persons to be an authorised officer:
(a) a State Service officer or State Service
employee;
(b) an employee of a council;
(c) an employee of the Commonwealth or
another State or a Territory;
(d) an employee of a body corporate that has
been designated any of the powers and
functions of the Chief Inspector under a
food safety scheme;
(e) an employee of an entity -
(i) established under a law of the
Commonwealth or another State
or a Territory with functions
relating to food safety; and
(ii) prescribed by the regulations.
(2) A State Service officer or State Service
employee, a person employed by the
Commonwealth, a council or any other entity
referred to in subsection (1) may hold the office
of authorised officer in conjunction with his or
her employment in the State Service, the
52
Primary Produce Safety Act 2011
Act No. of
Part 6 - Authorised Officers s. 36
Commonwealth, a council or other entity
referred to in subsection (1).
(3) The Minister may make an agreement with the
relevant Commonwealth Minister with respect to
the performance and exercise by an employee of
the Commonwealth of the functions and powers
of an authorised officer.
(4) An appointment under this section may be made
subject to conditions specified in the instrument
of appointment.
(5) The Secretary may, at any time, revoke an
appointment of an authorised officer or vary or
revoke a condition of the appointment or impose
a further condition of appointment.
(6) The Commonwealth must be notified in writing
of any action proposed to be taken under
subsection (5) in relation to an employee of the
Commonwealth.
36. Powers of authorised officers
(1) For the purposes of this Act, an authorised
officer may, at any reasonable time, do any one
or more of the following:
(a) alone, or with such police officers or
other persons as the authorised officer
considers necessary, enter and inspect
any premises or vehicle that the
authorised officer reasonably believes are
53
Primary Produce Safety Act 2011
Act No. of
s. 36 Part 6 - Authorised Officers
used in connection with any primary
production activity;
(b) alone, or with such police officers or
other persons as the authorised officer
considers necessary, enter and inspect
any premises or vehicle in which the
authorised officer reasonably believes
there are any records or documents that
relate to any primary production activity;
(c) examine any primary produce intended
for supply;
(d) open and examine any package that the
authorised officer reasonably believes
contains any primary produce intended
for supply;
(e) open and examine any equipment;
(f) for the purpose of analysing any primary
produce supplied or intended for supply
or for carrying out any other examination
in order to determine whether the
provisions of this Act are being complied
with, demand, select and obtain samples
of any primary produce;
(g) for the purpose of analysis, take samples
of water, soil, biological material,
chemicals, waste products or any other
thing that is part of the environment in
which any primary produce is produced
or handled, or is connected to the
production, storage or transport of
primary produce, to determine whether
54
Primary Produce Safety Act 2011
Act No. of
Part 6 - Authorised Officers s. 36
that environment poses a risk to the
safety of the primary produce for human
or pet consumption;
(h) take samples of anything, other than for
the purpose of analysis, that the
authorised officer reasonably believes
may be used as evidence that an offence
has been, or is being, committed under
this Act;
(i) seize and retain any primary produce, or
issue a seizure order in respect of any
primary produce -
(i) if the authorised officer
reasonably suspects that the
produce may be unsafe for human
consumption or unsuitable for
human consumption; or
(ii) in order to prevent the produce
being processed before it can be
determined to be safe for human
consumption and suitable for
human consumption;
(j) seize and retain, or issue a seizure order
in respect of, any thing that the
authorised officer reasonably believes
has been used in, or may be used as
evidence of, a contravention of this Act;
(k) examine any records or documents
referred to in paragraph (b), make copies
of those records or documents or any part
of them and, for that purpose, take away
55
Primary Produce Safety Act 2011
Act No. of
s. 36 Part 6 - Authorised Officers
and retain (for such time as may be
reasonably necessary) any such records
or documents or any part of them;
(l) stop and detain any vehicle that the
authorised officer is authorised by this
subsection to enter;
(m) open, or require to be opened, any
container used for the conveyance of
goods, or any package, that the
authorised officer reasonably believes
may contain any primary produce
supplied or intended for supply;
(n) take such photographs, films or audio or
visual recordings as the authorised
officer considers necessary;
(o) take any measurements and make
sketches or drawings or any other type of
record;
(p) require a person to provide any
information or answer any question that
the authorised officer considers relevant
to the administration and enforcement of
this Act, or to produce any record,
document or thing that an authorised
officer is authorised to examine under
this Act;
(q) require a person to state the person's
name and residential address;
(r) generally make such investigations and
inquiries as may be necessary to
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Primary Produce Safety Act 2011
Act No. of
Part 6 - Authorised Officers s. 36
ascertain whether an offence under this
Act is being or has been committed;
(s) mark or brand, or direct the marking or
branding of, primary produce as fit for
human consumption or as unfit for
human consumption, or as fit for
consumption by pets or as unfit for
consumption by pets, as the case may be;
(t) exercise any other power prescribed by
the regulations.
(2) This section does not authorise entry into any
part of premises that is being used solely for
residential purposes, except -
(a) with the consent of the occupier of the
premises; or
(b) under the authority of a search warrant.
(3) A person is not excused from a requirement
under this section to provide information or
answer questions, or to produce any record,
document or thing, on the ground that the
information, answer, record, document or thing
might incriminate the person or make the person
liable to a penalty.
(4) However any information or answer given, or
any record, document or thing produced by an
individual in compliance with a requirement or
direction under this section is not admissible in
evidence against that individual in criminal
proceedings other than proceedings for an
offence under section 39, 40, 42 or 43.
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Act No. of
s. 37 Part 6 - Authorised Officers
(5) A person who is a food safety auditor and an
authorised officer and who is performing the
duties of a food safety auditor in relation to any
premises or vehicle may also exercise the
powers and functions of an authorised officer but
only if the person has first produced his or her
identity card issued under section 38 -
(a) to the proprietor of the primary produce
business that uses those premises or
vehicle or to a person who is apparently
in charge of those premises or that
vehicle; and
(b) to any person whom the authorised
officer requires to produce anything or to
answer any question.
37. Search warrants
(1) An authorised officer may apply to a justice for a
search warrant if the authorised officer has
reasonable grounds to believe that a provision of
this Act has been, is being or is about to be
contravened on a residential premises.
(2) A justice to whom an application is made under
this section may, if satisfied that there are
reasonable grounds for doing so, issue a search
warrant.
(3) An authorised officer may execute a search
warrant using such assistance as the authorised
officer considers appropriate.
58
Primary Produce Safety Act 2011
Act No. of
Part 6 - Authorised Officers s. 38
(4) A warrant issued under this section may be made
subject to any conditions that the justice
considers appropriate.
(5) A warrant issued under this section authorises
the authorised officer named in the warrant to
enter and search the premises specified in the
warrant and exercise such of the powers
specified in section 36 as are not expressly
excluded by the justice who issued the warrant.
(6) Schedule 1 has effect with respect to a warrant
issued under this section.
(7) This section does not limit the operation of
section 36.
38. Identification of authorised officers
(1) The Secretary must issue a person appointed as
an authorised officer under this Act with an
identity card -
(a) containing the person's name and a
photograph of the person; and
(b) stating that the person is an authorised
person under this Act.
(2) If the powers of an authorised officer have been
limited by conditions, the identity card issued to
the authorised officer must contain a statement
of those conditions.
(3) An authorised officer must, at the request of a
person in relation to whom the authorised officer
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Primary Produce Safety Act 2011
Act No. of
s. 39 Part 6 - Authorised Officers
intends to exercise powers under this Act,
produce for the inspection of the person his or
her identity card (or in the case of an employee
of the Commonwealth exercising the powers of
an authorised officer, some other form of
identification and authority).
39. Failure to comply with requirements of authorised
officers
A person must not, without reasonable excuse,
fail to comply with a requirement or direction of
an authorised officer made under this Act.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
40. False information
A person must not, in connection with a
requirement or direction of an authorised officer
under this Act, provide any information or
answer or produce any record, document or thing
that the person knows is false or misleading in a
material particular.
Penalty: In the case of -
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Primary Produce Safety Act 2011
Act No. of
Part 6 - Authorised Officers s. 41
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
41. Interfering with seized items
A person must not, without the permission of an
authorised officer, detain, remove or tamper with
any primary produce, vehicle, equipment,
package, labelling or advertising material or
other thing that has been seized under this Act,
unless it has been released or returned in
accordance with the Act.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
42. Obstructing or impersonating authorised officers
(1) A person must not, without reasonable excuse,
resist, obstruct or attempt to obstruct an
authorised officer in the performance or exercise
of the authorised officer's functions or powers
under this Act.
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s. 43 Part 6 - Authorised Officers
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
(2) A person must not impersonate an authorised
officer.
Penalty: Fine not exceeding 100 penalty units.
43. Threatening or abusing authorised officer
A person must not threaten, intimidate, abuse or
assault an authorised officer in the performance
or exercise of the authorised officer's functions
or powers under this Act.
Penalty: Fine not exceeding 500 penalty units.
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Act No. of
Part 7 - Seizure by Authorised Officers s. 44
PART 7 - SEIZURE BY AUTHORISED OFFICERS
44. Seizure order
(1) A seizure order issued by an authorised officer
under section 36 -
(a) must be in the form of a written notice
given to the owner or person in control of
the thing to which the order relates; and
(b) may be varied or revoked by further
written notice given to the owner or
person in control of the thing to which
the order relates.
(2) If a seizure order is issued by an authorised
officer under section 36, a person who, without
reasonable excuse, removes or interferes with
any item or thing that is the subject of the seizure
order is guilty of an offence.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
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s. 45 Part 7 - Seizure by Authorised Officers
45. Seizure of primary produce suspected of being
unsafe or unsuitable
(1) If any primary produce has been seized or made
the subject of a seizure order under
section 36(1)(i) and an authorised officer is
satisfied that the produce is not unsafe for human
consumption or not unsuitable for human
consumption, the authorised officer must cause
the primary produce to be released immediately,
or if it is the subject of a seizure order, the
authorised officer must revoke the seizure order.
(2) However, if primary produce has been seized or
made the subject of a seizure order under
section 36(1)(i) and an authorised officer is
satisfied that the produce is unsafe for human
consumption or unsuitable for human
consumption, the authorised officer may -
(a) direct that the produce be processed or
otherwise dealt with in a specified
manner to ensure that it is not unsafe for
human consumption or unsuitable for
human consumption; or
(b) direct that the produce only be used for
specified limited purposes; or
(c) condemn the produce and dispose of it as
the authorised officer thinks fit, or direct
its disposal in a specified manner.
(3) Before exercising a power under
subsection (2)(c), the authorised officer must -
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Part 7 - Seizure by Authorised Officers s. 46
(a) give written notice of the proposed action
and the reasons for the proposed action
to the owner of the produce; and
(b) allow the owner of the produce a
reasonable opportunity to comment on
the proposed action.
46. Compensation for seizure, &c., of primary produce
(1) The owner of primary produce that has been
seized or made the subject of a seizure order
under section 36(1)(i) may apply to the Chief
Inspector for the payment of compensation if the
owner considers that there were no reasonable
grounds for the seizure or making of the seizure
order.
(2) An application under subsection (1) must be in
writing and made within 14 days of the seizure
of the relevant primary produce or issuing of the
seizure order.
(3) After considering an application for
compensation under subsection (1), the Chief
Inspector may decide that -
(a) such compensation as the Chief Inspector
considers just and reasonable be paid to
the applicant; or
(b) no compensation be paid to the applicant.
(4) The Chief Inspector must determine an
application under subsection (1) within 28 days
of receiving the application and must, within that
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time, serve written notice of the decision on the
applicant.
(5) If the Chief Inspector fails to determine an
application under subsection (1) within 28 days
of receiving the application, the Chief Inspector
is taken to have -
(a) decided to refuse to pay any
compensation; and
(b) served the applicant with a written notice
of that decision on the day on which the
28 day period expired.
(6) A person aggrieved by a decision of the Chief
Inspector relating to an application under
subsection (1) may, within 28 days after being
served with a written notice of the decision apply
to the Magistrates Court (Administrative
Appeals Division) for a review of the decision.
47. Seizure of thing that may be used as evidence
(1) If any thing has been seized or made the subject
of a seizure order under section 36(1)(j), the
authorised officer must cause the thing to be held
pending proceedings for an offence in respect to
which it may be used as evidence unless the
Chief Inspector authorises the release of the
thing to the person from whom it was seized, or
to any person who had legal title to it at the time
of its seizure, subject to such conditions as the
Chief Inspector thinks fit.
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(2) If proceedings for an offence against this Act
relating to the thing are instituted within the
prescribed period after its seizure, or the issuing
of the seizure order, and the defendant is
convicted or found guilty of the offence, the
court may order that the thing be forfeited to the
Crown.
(3) However, if -
(a) proceedings are not instituted for an
offence against this Act relating to the
thing within the prescribed period after
its seizure, or the issuing of the seizure
order; or
(b) proceedings have been so instituted and
the defendant is found not guilty of the
offence; or
(c) proceedings have been so instituted and
the defendant is convicted or found
guilty of the offence but no order for
forfeiture is made under subsection (2) -
the person from whom the thing was seized, or
any person having legal title to it, is entitled to
recover from the Crown (if necessary, by action
in a court of competent jurisdiction) the thing
itself, or if it has been damaged or destroyed,
compensation of an amount equal to its market
value at the time of its seizure.
(4) Where the circumstances referred to in
subsection (3) apply to a thing that is the subject
of a seizure order, the order is revoked, and the
revocation takes effect from the time of expiry of
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the prescribed period or from the time of
determination of the proceedings, whichever is
relevant in the circumstances.
(5) For the purposes of this section, the "prescribed
period" means 12 months, or such longer period
as the court may, on application by the Chief
Inspector, allow.
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Act No. of
Part 8 - Compliance Notices and Prohibition Orders s. 48
PART 8 - COMPLIANCE NOTICES AND
PROHIBITION ORDERS
48. Meaning of legislative requirement in this Part
For the purposes of this Part -
"legislative requirement" means -
(a) any requirement or condition of
an accreditation; or
(b) any requirement or provision of a
food safety program; or
(c) any requirement or provision of a
food safety scheme; or
(d) any requirement or provision of
the Food Standards Code; or
(e) any requirement of a compliance
notice issued under this Part; or
(f) any other requirement or
provision of this Act.
49. Compliance notice
(1) If an authorised officer suspects on reasonable
grounds that, in the course of carrying on a
primary production activity to which a food
safety scheme applies, a person has contravened
or is contravening a legislative requirement, the
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authorised officer may issue and serve a
compliance notice on the person.
(2) A compliance notice issued under this section
may -
(a) require specified action to be taken
within 7 days from the service of the
notice (or a lesser period specified in the
notice) to rectify the contravention; or
(b) require specified action to be taken
within 7 days from the service of the
notice (or a lesser period specified in the
notice) to ensure compliance with the
legislative requirement.
(3) A compliance notice issued under this section
must -
(a) be in writing; and
(b) specify the grounds on which it is issued;
and
(c) specify the requirements of the notice,
including the action which must be taken
to comply with the notice.
(4) A fee fixed by the Secretary is payable by a
person served with a compliance notice under
this section for each inspection carried out by an
authorised officer that is necessary to determine
whether the requirements of the notice have been
complied with.
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Part 8 - Compliance Notices and Prohibition Orders s. 50
(5) A person must not, without reasonable excuse,
contravene or fail to comply with a compliance
notice served on the person under this section.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
50. Prohibition order
(1) If the Chief Inspector suspects on reasonable
grounds that, in the course of carrying on a
primary production activity to which a food
safety scheme applies, a person has contravened
or is contravening a legislative requirement, the
Chief Inspector may issue and serve a
prohibition order on the person.
(2) A prohibition order issued under this section
may prohibit the use of specified premises, part
of premises, vehicles, plant or equipment for or
in connection with the primary production
activity until -
(a) specified action is taken within a
specified time to rectify the
contravention; or
(b) specified action is taken within a
specified time to ensure compliance with
the legislative requirement.
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(3) A prohibition order issued under this section
must -
(a) be in writing; and
(b) specify the grounds upon which it is
issued; and
(c) specify the requirements of the order,
including the action which must be taken
to comply with the order.
(4) A prohibition order issued under this section
takes effect from the time that it is served and
remains in force until it is revoked.
(5) The Chief Inspector may vary or revoke a
prohibition order issued under this section at any
time by serving a written notice of the variation
or revocation on the person originally served
with the order.
(6) A person served with a prohibition order may, at
any time, apply in writing to the Chief Inspector
for the revocation of the order on the grounds
that the requirements of the order have been
fully complied with.
(7) If the Chief Inspector has received an application
under subsection (6), the Chief Inspector must,
within 14 days of receiving the application,
cause an authorised officer to carry out any
inspections and investigations that are
reasonably necessary to determine whether the
requirements of the prohibition order have been
fully complied with.
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Part 8 - Compliance Notices and Prohibition Orders s. 50
(8) An authorised officer is to report the findings of
any inspection or investigation the authorised
officer has carried out under subsection (7) to the
Chief Inspector as soon as is reasonably
practicable after the inspection or investigation is
completed.
(9) The Chief Inspector must revoke a prohibition
order if satisfied on reasonable grounds that the
requirements of the order have been fully
complied with.
(10) However, if -
(a) a person applies to the Chief Inspector
for the revocation of a prohibition order
in accordance with subsection (6); and
(b) through no fault of the person who
applied for the revocation, an authorised
officer fails to carry out any inspection or
investigation within 14 days in
accordance with subsection (7) -
the prohibition order is revoked and the
revocation takes effect at the expiry of the 14-
day period in which the relevant inspection or
investigation should have taken place.
(11) A fee fixed by the Secretary is payable by a
person served with a prohibition order under this
section for each inspection carried out by an
authorised officer that is reasonably necessary to
determine whether the requirements of the order
have been complied with.
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(12) A person must not, without reasonable excuse,
contravene or fail to comply with a prohibition
order served on the person under this section.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
51. Compensation
(1) A person bound by a prohibition order issued
under section 50 who suffers loss as a result of
the issuing or variation of the order or the refusal
by the Chief Inspector to revoke the order, may
apply to the Chief Inspector for compensation if
the person considers that there were no
reasonable grounds for the issuing or variation of
the order, or alternatively, for refusing to revoke
the order.
(2) If, after considering an application under
subsection (1), the Chief Inspector determines
that there were no reasonable grounds for the
issuing or variation of the prohibition order or
for the refusal to revoke the prohibition order,
the Chief Inspector is to pay such compensation
to the applicant as is just and reasonable.
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(3) The Chief Inspector is to serve written notice on
the applicant of his or her determination as to the
payment of compensation under this section.
(4) If the Chief Inspector has not determined an
application for compensation under this section
within 28 days of receiving the application, the
Chief Inspector is taken to have -
(a) decided to have refused to pay any
compensation; and
(b) served the applicant with a written notice
of that decision on the day on which the
28 day period expired.
52. Review of decisions relating to prohibition orders
(1) A person aggrieved by a decision of the Chief
Inspector under this Part relating to any of the
following may apply to the Magistrates Court
(Administrative Appeals Division) for a review
of the decision:
(a) the issuing of a prohibition order;
(b) the variation of a prohibition order;
(c) the requirements of a prohibition order;
(d) an application for the revocation of a
prohibition order;
(e) an application for compensation under
section 51.
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(2) An application under this section must be made
within 28 days after service of the written notice
of the relevant decision by the Chief Inspector.
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Act No. of
Part 9 - Other Remedies s. 53
PART 9 - OTHER REMEDIES
53. Infringement notices
(1) An authorised officer may serve an infringement
notice on a person, other than a person under the
age of 16 years, if of the opinion that the person
has committed an offence prescribed in the
regulations.
(2) An infringement notice is not to relate to 4 or
more offences.
(3) An infringement notice is to be in accordance
with section 14 of the Monetary Penalties
Enforcement Act 2005.
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Act No. of
s. 54 Part 10 - Food Safety Programs
PART 10 - FOOD SAFETY PROGRAMS
54. Food safety programs
(1) This section applies to a person who is required
to prepare and implement a food safety program
under a food safety scheme.
(2) The food safety program must -
(a) identify all significant food safety
hazards associated with the primary
production activities carried out by the
person; and
(b) state how the hazards are to be monitored
and controlled; and
(c) state how hygienic and safe conditions
for the relevant primary production
activities are to be monitored and
maintained; and
(d) state how often the program is to be
reviewed; and
(e) contain a product recall procedure; and
(f) comply, and allow compliance with, any
prescribed standard, code, guideline or
testing regime that is applicable to any
primary production activity carried out
by the person; and
(g) contain any other information required
under the relevant food safety scheme.
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Part 10 - Food Safety Programs s. 55
(3) The person must ensure that all requirements
imposed by a food safety scheme in relation to
the preparation, implementation, maintenance
and monitoring of a food safety program for a
primary production activity are complied with.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
55. Auditing of food safety programs
A person to whom section 54 applies must
ensure that the food safety program is audited at
the frequency determined by the Chief Inspector.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
56. Frequency of audits for food safety purposes
(1) The Chief Inspector may, by written notice given
to the person who is subject to an audit under
this Part, determine the frequency of audits
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required under section 55 taking into account the
following:
(a) the minimum, maximum and average
number of audits required for similar
primary produce businesses;
(b) any national guidelines;
(c) the length of time that person has been
undertaking the primary production
activities that are the subject of the food
safety program;
(d) the technical expertise of that person
including the expertise of that person's
employees or agents;
(e) the past audit history of that person, that
person's employees or agents, and the
primary produce business that person is
operating;
(f) any recommendations from food safety
auditors as to the frequency of audits;
(g) the past history of that person, that
person's employees or agents, and the
primary produce business that person is
operating in relation to compliance with
this Act, the Food Act 2003 and any
corresponding law.
(2) The Chief Inspector may require that all or some
of the audits be unannounced and require that a
food safety auditor selected by the Chief
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Act No. of
Part 10 - Food Safety Programs s. 57
Inspector should be used for some or all of the
audits.
(3) The Chief Inspector may, by written notice, at
any time vary any determination made under
subsection (1).
(4) Any determination, or variation of a
determination, by the Chief Inspector under this
section must comply with the auditing
requirements (if any) specified in the food safety
scheme under which the food safety program is
required.
57. Check audits
(1) The Chief Inspector may, by written notice given
to the person who is subject to an audit under
this Part, direct that a check audit be undertaken
in order to assess the performance of a food
safety auditor.
(2) An audit referred to in subsection (1) may be
directed to be made in relation to all or part of
the food safety program and may be conducted
at the same time as scheduled audits required by
the Chief Inspector under section 56 or at a
different time.
(3) An audit referred to in subsection (1) must not
be undertaken by the same food safety auditor
who undertook the audit required under
section 56 in the previous 12 months.
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s. 58 Part 11 - Auditors
PART 11 - AUDITORS
58. Approval of food safety auditor
(1) The Chief Inspector may approve an individual
to be a food safety auditor for the purposes of
this Act if satisfied that the individual is
competent to carry out the functions of a food
safety auditor having regard to -
(a) the individual's technical skills and
experience; and
(b) any guidelines approved by the Chief
Inspector relating to competency criteria.
(2) An individual may be approved under
subsection (1) if the Chief Inspector considers
the individual to be a fit and proper person to be
approved.
(3) An individual may not be approved under
subsection (1) if his or her name has been
removed from a register of food safety auditors
in another State or a Territory for reasons related
to character or performance.
(4) An individual may make an application, in a
form approved by the Chief Inspector, to the
Chief Inspector for approval under this Part.
(5) An authorised officer, a State Service officer or
State Service employee, a person employed by
the Commonwealth or a person employed by a
council may be approved under subsection (1)
and may hold that approval in conjunction with
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holding the office of an authorised officer under
this Act or with his or her employment in the
State Service, the Commonwealth or a council,
as the case may be.
(6) An application for approval under this Part is to
be accompanied by -
(a) such information as the Chief Inspector
requires to determine the application; and
(b) the fee, if any, prescribed in the
regulations.
(7) The Chief Inspector may, after considering an
application for approval under this Part -
(a) grant the approval with or without
conditions; or
(b) refuse the application.
(8) If the Chief Inspector grants an application for
approval, the Chief Inspector must issue the
applicant with a written approval that sets out
any conditions to which the approval is subject.
(9) If the Chief Inspector refuses an application for
approval, the Chief Inspector must give notice of
the refusal in writing to the applicant setting out
the reasons for the refusal.
59. Term of approval
Except during any period of suspension, an
approval granted under this Part remains in force
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s. 60 Part 11 - Auditors
for the period specified in the approval unless
sooner cancelled.
60. Declaration of interest
(1) A food safety auditor must notify the Chief
Inspector of any direct or indirect interest in any
person or primary produce business that may be
subject to an audit under this Act.
Penalty: Fine not exceeding 50 penalty units.
(2) Payment to a food safety auditor for carrying out
the functions of a food safety auditor does not
constitute a direct or indirect interest in a person
or primary produce business for the purposes of
this section.
61. Variation of conditions, or suspension or
cancellation, of approval of food safety auditor
(1) The Chief Inspector may vary the conditions of,
or suspend or cancel, the approval of a person as
a food safety auditor.
(2) An approval of a person as a food safety auditor
may be suspended or cancelled on one or more
of the following grounds:
(a) the Chief Inspector is satisfied that the
person has wilfully or negligently
contravened a provision of this Act, the
Food Act 2003 or a corresponding law;
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Part 11 - Auditors s. 61
(b) the Chief Inspector can no longer be
satisfied the person is a fit and proper
person;
(c) the Chief Inspector is satisfied that the
person has contravened a condition to
which the approval is subject;
(d) the Chief Inspector is satisfied that the
person has not competently carried out a
duty of a food safety auditor under this
Act;
(e) if the Chief Inspector is satisfied that the
person has a direct or indirect interest in
any person or primary produce business
that, in the opinion of the Director, could
affect the performance of the person's
duties as a food safety auditor under this
Act;
(f) the person's name has been removed
from the register of food safety auditors
of another State or a Territory for reasons
related to character or performance;
(g) at the request of the person;
(h) for any other reason that the Chief
Inspector considers appropriate.
(3) The Chief Inspector may only vary the
conditions of, or suspend or cancel, the approval
of a person as a food safety auditor -
(a) after having given the person -
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s. 62 Part 11 - Auditors
(i) written reasons for the Chief
Inspector's intention to vary,
suspend or cancel the approval;
and
(ii) 14 days to make submissions; and
(b) after having considered any submissions
made by the person.
(4) Subsection (3) does not apply to the cancellation
of a person's approval as a food safety auditor
made at the request of that person.
(5) A variation of the conditions of, or the
suspension or cancellation of, the approval of a
person as a food safety auditor -
(a) must be by notice in writing; and
(b) must be served on the person to whom
the approval relates; and
(c) takes effect on the day on which the
notice is served or on a later day
specified in the notice.
62. Review of decisions relating to approval
(1) A person aggrieved by a decision of the Chief
Inspector relating to any of the following may
apply to the Magistrates Court (Administrative
Appeals Division) for a review of the decision:
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Act No. of
Part 11 - Auditors s. 63
(a) the grant or refusal of an application for
an approval as a food safety auditor
under this Part;
(b) the imposition of conditions on an
approval as a food safety auditor under
this Part;
(c) the variation of conditions of an approval
as a food safety auditor under this Part;
(d) the suspension or cancellation of an
approval as a food safety auditor under
this Part.
(2) An application under this section may only be
made within 28 days after service of -
(a) the written notice of approval or refusal
of the application for approval as a food
safety auditor under this Part; or
(b) the written notice of variation of
conditions of an approval as a food
safety auditor under this Part; or
(c) the written notice of suspension or
cancellation of an approval as a food
safety auditor under this Part.
63. Duties of food safety auditors
A food safety auditor has the following duties:
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(a) to carry out audits of any food safety
programs required pursuant to a food
safety scheme;
(b) to carry out any necessary follow-up
action, including further audits, if
necessary, to check if action has been
taken to remedy any deficiencies of any
food safety program identified in the
audit;
(c) to carry out assessments of producers to
ascertain their compliance with the
requirements of a food safety scheme;
(d) to report in accordance with section 64.
64. Reporting requirements
(1) A food safety auditor must report in writing to
the Chief Inspector the results of any audit or
assessment carried out by the food safety auditor
for the purposes of this Act.
(2) A report must -
(a) be in a form approved by the Chief
Inspector; and
(b) be submitted to the Chief Inspector
within 21 days after the completion of
the audit or assessment; and
(c) take into account any action taken before
the submission of the report to remedy
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any deficiency identified by the food
safety auditor.
(3) A food safety auditor must indicate in a report of
an audit or assessment -
(a) whether or not the food safety auditor is
of the opinion that any relevant primary
production activity is being performed in
accordance with the requirements of the
food safety scheme relating to the food
safety program; and
(b) any other requirements of this Act, a
food safety scheme or the Food
Standards Code that the food safety
auditor is of the opinion are being
contravened and the manner in which
they are being contravened.
(4) A food safety auditor must report any
contravention of this Act, a food safety scheme
or the Food Standards Code that comes to the
food safety auditor's attention in the course of
carrying out an audit or assessment for the
purposes of this Act -
(a) that constitutes an imminent and serious
risk to the safety of primary produce
intended for supply; or
(b) that will cause primary produce intended
for supply to be unsuitable for that
purpose -
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s. 65 Part 11 - Auditors
as soon as possible but in any event within 24
hours after the contravention comes to the food
safety auditor's attention.
(5) A food safety auditor must report in writing to
the Chief Inspector, giving reasons, if the food
safety auditor considers that the frequency of
audits of a producer that has been audited by the
food safety auditor should be changed.
(6) A food safety auditor must give a copy of a
report provided to the Chief Inspector in relation
to an audit or assessment to the producer who is
the subject of the audit.
65. Certificates of approval of food safety auditors
(1) The Chief Inspector is to provide each food
safety auditor with a certificate of approval as a
food safety auditor.
(2) The certificate of approval must -
(a) state that it is issued under this Act; and
(b) give the name of the person to whom it is
issued and bear a photograph of that
person and the person's signature; and
(c) state the date, if any, on which it expires;
and
(d) specify any conditions to which the
person's approval as a food safety
auditor is subject; and
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(e) bear the signature of the person by whom
it is issued and state the capacity in
which the person is acting in issuing the
certificate.
66. Identification of food safety auditor
(1) The Chief Inspector is to issue a food safety
auditor approved under this Part with an identity
card -
(a) containing the person's name and a
photograph of the person; and
(b) stating that the person is a food safety
auditor under this Act; and
(c) stating any conditions or limitations in
relation to primary production activities
that the food safety auditor can audit.
(2) A food safety auditor must, at the request of a
person in relation to whom the food safety
auditor intends to perform any functions or
duties under this Act, produce for the inspection
of the person his or her identity card.
Penalty: Fine not exceeding 50 penalty units.
67. Register of food safety auditors to be maintained
(1) The Chief Inspector is to prepare and maintain a
register of food safety auditors.
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(2) The register is to be made publicly available and
is to be revised at least annually.
68. Obstructing or impersonating food safety auditors
(1) A person must not, without reasonable excuse,
resist, obstruct or attempt to obstruct a food
safety auditor in the performance of the food
safety auditor's functions or duties under this
Act.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
(2) A person must not impersonate a food safety
auditor.
Penalty: Fine not exceeding 500 penalty units.
69. Threatening or abusing food safety auditors
A person must not threaten, intimidate, abuse or
assault a food safety auditor in the performance
of the food safety auditor's functions or duties
under this Act.
Penalty: Fine not exceeding 500 penalty units.
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PART 12 - EVIDENTIARY AND PROCEDURAL
PROVISIONS
70. Nature of proceedings for offences
Unless the contrary intention appears,
proceedings for an offence under this Act are to
be dealt with summarily.
71. Institution of proceedings
(1) Proceedings for an offence under this Act -
(a) may be instituted only by -
(i) the Minister or a person
authorised by the Minister; or
(ii) an authorised officer; or
(iii) the Chief Inspector; and
(b) may be instituted within 3 years after the
date on which the offence is alleged to
have been committed.
(2) A person may apply to a magistrate within the
time limit referred to in subsection (1) to extend
that time limit.
72. Offences by employers
(1) If an employee or agent contravenes any
provision of this Act, the employer or the
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principal of the agent is taken to have
contravened the same provision.
(2) It is a defence in proceedings against an
employer or principal for such a contravention if
it is proved that the employer or principal could
not, despite taking all reasonable precautions and
exercising all due diligence, prevent the
contravention.
(3) An employer or principal may be proceeded
against and convicted under a provision pursuant
to this section whether or not the employee or
agent has been proceeded against or been
convicted under that provision.
73. Offences by bodies corporate
(1) If a body corporate contravenes, whether by act
or omission, any provision of this Act, each
person who is a member of the governing body
of the body corporate or who is concerned in the
management of the body corporate is taken to
have contravened the same provision if the
person knowingly or negligently authorised or
permitted the contravention.
(2) A person may be proceeded against and
convicted under a provision pursuant to this
section whether or not the body corporate has
been proceeded against or been convicted under
that provision.
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(3) Nothing in this section affects any liability
imposed on a body corporate for an offence
committed by the body corporate under this Act.
74. Liability of employees and agents
(1) Except as provided in subsection (2), it is no
defence in proceedings for an offence under this
Act 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,
it is a defence for the defendant to prove that the
defendant was under the supervision of the
proprietor of the primary produce business, or
the owner or person in charge of the premises,
place, or vehicle, in relation to which the offence
was committed or of another person representing
that proprietor, owner or person in charge.
(3) Except by leave of the court, a defence under
subsection (2) is only available if the person
intending to rely on that defence gives notice in
writing to the court and the complainant -
(a) stating that intention; and
(b) stating the name and address of the
proprietor, owner or person in charge.
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75. Continuing offence
(1) A person who commits an offence under this Act
that is a continuing offence is liable, in addition
to any other penalty, to a further penalty not
exceeding one-fifth of the maximum penalty
prescribed for that offence for each day during
which the offence continues.
(2) For the purposes of this section, an obligation to
do anything continues until it is done,
notwithstanding that any period within which, or
time before which, the thing is required to be
done has ended or passed.
76. Presumptions
In any proceedings for an offence under this Act,
it is presumed, until on the balance of
probabilities the contrary is proved, that -
(a) a person supplies primary produce if he
or she supplies anything of which
primary produce is a constituent; and
(b) any primary produce that was supplied
and that was capable of being used as
food, either immediately at the time of
supply or at a later time, with or without
any further transformation or processing
of the produce, was primary produce
supplied for human consumption; and
(c) any primary produce capable of being
used as food is not for human
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consumption if it is prominently marked
as not being for human consumption, or
with words to that effect; and
(d) primary produce that is part of a batch,
lot or consignment of primary produce of
the same class or description is
representative of all the primary produce
in that batch, lot or consignment; and
(e) each part of a sample of primary produce
divided for the purpose of analysis under
this Act is of uniform composition with
every other part of that sample; and
(f) a person who supplied primary produce
in the conduct of a primary produce
business and who was not the proprietor
of the primary produce business or the
accredited producer with respect to the
primary produce business, supplied the
primary produce as the agent of the
proprietor or accredited producer; and
(g) any primary produce found in any
premises or vehicle used in connection
with any primary production activity is
intended -
(i) to be used in the primary
production activity; and
(ii) for human consumption; and
(h) a person who appears from any statement
on a package containing primary produce
to have imported, produced, packed,
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prepared or conveyed the primary
produce is the importer, producer,
packager, preparer or conveyer of the
primary produce, as the case may be; and
(i) a signature purporting to be that of the
Chief Inspector or an authorised officer
is that signature.
77. Evidence
(1) A certificate signed by the Secretary certifying
as to the appointment of an authorised officer
under this Act is admissible in any proceedings
under this Act and is, until the contrary is
proved, evidence of the matter so certified.
(2) A certificate signed by the Chief Inspector
certifying as to -
(a) an accreditation under this Act; or
(b) a food safety program under this Act; or
(c) any authorisation, approval, consent or
agreement given by the Chief Inspector
under this Act; or
(d) any clearance given by the Chief
Inspector under this Act; or
(e) any exemption given under this Act; or
(f) the compliance by a person with a food
safety scheme, or with any notice,
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requirement, order or direction issued
under this Act; or
(g) the approval of a food safety auditor
under this Act; or
(h) any delegation under this Act; or
(i) any notice, requirement, order or
direction issued by the Chief Inspector
under this Act; or
(j) any application made or received under
this Act; or
(k) the receipt or non-receipt by the Chief
Inspector of any information or return
under this Act; or
(l) any information held in any public
register established or maintained under
this Act; or
(m) the levying, payment or non-payment of
any fees or charges under this Act -
is admissible in any proceedings under this Act
and is, until the contrary is proved, evidence of
the matters so certified.
(3) A certificate signed by an authorised officer
certifying as to -
(a) whether any substance is or was primary
produce of a particular kind or the
product of primary produce of a
particular kind; or
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(b) the premises where, or the person by
whom, any primary produce was
produced; or
(c) the fitness, safety or suitability of any
primary produce for human
consumption; or
(d) the fitness, safety or suitability of any
primary produce for consumption by
pets; or
(e) the inspection by the authorised officer
of any primary produce, premises,
vehicle or equipment; or
(f) the seizure by the authorised officer of
any primary produce, equipment,
document, record or other thing under
this Act; or
(g) any sample of anything taken, or any test
or analysis performed by the authorised
officer under this Act, and the results of
any such sample, test or analysis; or
(h) any notice, requirement, order or
direction issued by the authorised officer
under this Act -
is admissible in any proceedings under this Act
and is, until the contrary is proved, evidence of
the matters so certified.
(4) If in any proceedings it is proved that any
primary produce was on any premises used by a
person for or in connection with a primary
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production activity, it shall, unless the contrary
is established, be evidence that the primary
produce was held in that person's possession for
the purpose of supply by that person, either in its
present form or as an ingredient or a part of a
product supplied by that person.
78. Proceedings relating to third persons
(1) A person charged with an offence under this Act
who alleges that the offence was due to the act or
omission of another person may apply to a
justice for a summons to that other person to
appear in proceedings relating to that offence.
(2) On receipt of the application, a justice is to -
(a) issue the summons; and
(b) adjourn the proceedings until the return
date of the summons.
(3) The summons is to include -
(a) particulars of the complaint; and
(b) the allegations relating to the other
person's act or omission.
(4) The defendant is to forward to the complainant a
copy of the application for the summons.
(5) In proceedings for the offence, the complainant
and the other person summonsed to appear
may -
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(a) cross-examine the defendant, if the
defendant gives evidence, and any
witness called by the defendant; and
(b) call evidence in rebuttal.
(6) In determining proceedings for the offence, a
court -
(a) may convict the other person summonsed
to appear if the defendant proves that the
offence was due to that person's act or
omission; and
(b) is to dismiss the charge against the
defendant if the defendant proves that he
or she exercised due diligence to ensure
compliance with the provision that gave
rise to the offence; and
(c) may make any order it considers
appropriate for the payment of costs by
any party to any other party.
(7) If an authorised officer is reasonably satisfied
that an offence has been committed by a person
and that the offence was due to an act or
omission of another person -
(a) the authorised officer may cause
proceedings to be brought against that
other person without first causing
proceedings to be brought against the
person committing the offence; and
(b) the other person may be charged with,
and convicted of, that offence.
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79. Disclosure by witnesses
(1) In any proceedings for an offence under this Act,
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 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.
80. 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 has power to make
such order as it thinks fit in respect of the costs
and expenses of and incidental to the
examination, seizure, detention, storage,
analysis, or destruction or other disposal of
anything the subject of those proceedings.
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81. Court may order forfeiture
Without affecting any other power of the court to
order forfeiture, a court by which a person is
convicted of an offence under this Act may order
the forfeiture to the Crown of anything that was
used in the commission of the offence.
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PART 13 - MISCELLANEOUS
82. Protection from liability
(1) No liability attaches to -
(a) the Chief Inspector, an authorised officer
or any other person engaged in the
administration or enforcement of this
Act; or
(b) a person employed by the Crown or the
Chief Inspector to carry out analyses or
any other function for the purposes of
this Act -
for an honest act or omission in the exercise or
performance, or purported exercise or
performance, of a power, function or duty under
this Act.
(2) Subsection (1) does not preclude the Crown
from incurring a liability that the Chief
Inspector, an authorised officer or other person
would, but for that subsection, incur.
83. Bribery
A person must not give, procure, offer or
promise any bribe, recompense or reward to
influence any person in the performance of
functions or duties under this Act.
Penalty: In the case of -
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(a) a body corporate, a fine not
exceeding 2 500 penalty units;
or
(b) an individual, a fine not
exceeding 500 penalty units.
84. Disclosure of information
A person must not disclose any information
obtained for the purpose of this Act relating to a
person except in accordance with any relevant
regulations and -
(a) with the written consent of the person to
whom the information relates; or
(b) to a person authorised by the Chief
Inspector; or
(c) for the purposes of legal proceedings
arising out of this Act; or
(d) for a purpose authorised or required by
this Act or another Act; or
(e) for the purposes of study or research
approved by the Chief Inspector.
Penalty: Fine not exceeding 50 penalty units.
85. Certificate of compliance with food safety scheme
(1) The Chief Inspector may issue a certificate of
compliance with a food safety scheme to a
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producer if the Chief Inspector is satisfied of the
following matters:
(a) the producer is not required to be
accredited under a food safety scheme
which applies to the primary production
activity that the producer is carrying out
and the producer has, in the carrying out
of that primary production activity, fully
complied with the food safety scheme;
(b) the producer has complied with any
requirement of the Chief Inspector
relating to -
(i) the implementation of a food
safety program or other food
safety system; and
(ii) any inspection or audit, whether
announced or unannounced; and
(iii) any other matter the Chief
Inspector considers to be relevant
to compliance with the food
safety scheme.
(2) The Chief Inspector is not to issue a certificate
under this section unless any fees set by the
Secretary, by notice published in the Gazette,
have been paid by or on behalf of the producer.
(3) The certificate of compliance is valid for 12
months.
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86. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may -
(a) establish a food safety scheme; and
(b) prescribe 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 (whether or
not the inspection or analysis was
requested or agreed to); and
(c) prescribe fees for the making of
applications under this Act; and
(d) make provision for the remission of, or
exemption from liability for, any fees or
charges payable under this Act; and
(e) impose requirements for the notification
by primary produce businesses of
information relating to the conduct of
those primary produce businesses; and
(f) make provision for any matter that may
be provided for in a food safety scheme.
(3) Regulations may be made so as to apply
differently according to any matter, condition,
limitation, restriction, exception or
circumstances specified in the regulations.
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(4) The regulations may -
(a) provide that a contravention of, or a
failure to comply with, any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding
250 penalty units and, in the case of a
continuing offence, a further fine not
exceeding 20 penalty units for each day
during which the offence continues; and
(c) create evidentiary presumptions in
relation to specific primary produce.
(5) The regulations may -
(a) authorise any matter to be determined,
applied or regulated by a person or body
specified in the regulations; and
(b) confer a power or impose a duty on a
specified person, body or class of
persons.
(6) The regulations may adopt or incorporate the
whole or part of any standard, rule, code,
specification or guidelines, as amended from
time to time, with or without modification,
issued, prescribed, made or published by any
person or body before or after the regulations
take effect.
(7) The regulations may rescind regulations or other
subordinate legislation made under the repealed
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Acts or any other Act prescribed by the
regulations.
87. Saving and transitional arrangements
(1) A person who held a licence under the Meat
Hygiene Act 1985 immediately before the repeal
of that Act, and who is required to hold an
accreditation under this Act is taken to have been
granted a temporary accreditation under this
section.
(2) A person who was an approved egg producer
under the Egg Industry Act 2002 immediately
before the repeal of that Act, and who is required
to hold an accreditation under this Act is taken to
have been granted a temporary accreditation
under this section.
(3) A temporary accreditation under this section
authorises the holder to carry on the activities for
which the person was licensed or approved -
(a) in the case of the holder of a meat
premises licence under the Meat Hygiene
Act 1985 on the conditions of his or her
licence in force immediately before the
repeal of that Act; or
(b) in the case of an approved egg producer
under the Egg Industry Act 2002, in
accordance with the relevant egg
production program approved for that
person and in force immediately before
the repeal of that Act.
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(4) A temporary accreditation under this section
operates from the repeal of the Meat Hygiene Act
1985 or Egg Industry Act 2002, as the case may
be and continues for a period of 12 months.
(5) Any application made under Division 2 of Part
III of the Meat Hygiene Act 1985 but not
determined before the repeal of that Act is taken
to be an application in relation to an
accreditation under this Act.
(6) An application under section 5 of the Egg
Industry Act 2002 but not determined before the
repeal of that Act is taken to be an application in
relation to an accreditation under this Act.
(7) An application made under section 6 of the Egg
Industry Act 2002 but not determined before the
repeal of that Act is taken to be an application in
relation to an accreditation under this Act.
(8) The regulations may -
(a) provide for savings or transitional
matters necessary or expedient for
bringing this Act into operation; and
(b) provide for any of those savings and
transitional matters to take effect when
this section commences or on a later day
specified in the regulations, whether the
day so specified is before, on or after the
day on which the regulations are made.
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88. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Primary Industries and
Water; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Primary
Industries, Parks, Water and
Environment.
89. Consequential amendments
The legislation specified in Schedule 2 is
amended as specified in that Schedule.
90. Legislation repealed
The legislation specified in Schedule 3 is
repealed.
91. Legislation Further repealed
The legislation specified in Schedule 4 is
repealed.
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92. Legislation rescinded
The legislation specified in Schedule 5 is
rescinded.
93. Legislation Further rescinded
The legislation specified in Schedule 6 is
rescinded.
94. Legislation revoked
The legislation specified in Schedule 7 is
revoked.
95. Legislation Further revoked
The legislation specified in Schedule 8 is
revoked.
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SCHEDULE 1 - PROVISIONS WITH RESPECT TO
SEARCH WARRANTS
Section 37(6)
1. Application for search warrants
(1) An application for a search warrant is to be made
in writing.
(2) A justice is not to issue a search warrant unless -
(a) the application for the search warrant sets
out the grounds for seeking the search
warrant; and
(b) the applicant for the search warrant has
given the justice, either orally or in
writing, any further information the
justice requires concerning the grounds
for seeking the search warrant; and
(c) the information given by the applicant is
verified before the justice on oath or by
affidavit.
2. Record of proceedings before justice
A justice who issues a search warrant is to cause
a record to be made of all relevant particulars of
the grounds the justice has relied on to justify the
issue of the search warrant.
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3. Duty to show search warrants
An authorised officer executing a search warrant
is to produce the search warrant for inspection
by an occupier of the premises if requested to do
so by that occupier.
4. Expiry of search warrants
A search warrant ceases to have effect -
(a) on the date specified in the search
warrant as the date on which it ceases to
have effect; or
(b) if it is withdrawn before that date by the
justice who issued the search warrant; or
(c) after it has been executed; or
(d) if the person to whom it is issued ceases
to be an authorised officer -
whichever first occurs.
5. Reports to justice on execution of search warrants,
&c.
(1) The authorised officer to whom a search warrant
is issued is to furnish a report in writing to the
justice who issued the search warrant -
(a) stating whether or not the search warrant
has been executed; and
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(b) if the search warrant has been executed,
setting out briefly the result of the
execution of the search warrant,
including a brief description of anything
seized; and
(c) if the search warrant has not been
executed, setting out briefly the reasons
why the search warrant has not been
executed.
(2) A report with respect to a search warrant is to be
made within the period of 10 days immediately
after the execution of the search warrant or the
expiry of the search warrant, whichever first
occurs.
6. Death, absence, &c., of justice who issued search
warrant
If the justice who issued a search warrant has
died, has ceased to be a justice or is absent, a
report required to be furnished to that justice is
to be furnished to another justice.
7. Defects in search warrants
A search warrant is not invalidated by any
defect, other than a defect that affects the
substance of the search warrant in a material
particular.
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SCHEDULE 2 - CONSEQUENTIAL AMENDMENTS
Section 89
Animal (Brands and Movement) Act 1984
1. Section 25(1A) is amended by omitting "at
licensed meat premises within the meaning of
the Meat Hygiene Act 1985" and substituting
"who is the holder of a relevant accreditation
under Part 4 of the Primary Produce Safety Act
2011".
Animal (Brands and Movement) Regulations 2003
1. Regulation 3(1) is amended as follows:
(a) by inserting the following definition
before the definition of "Act":
"accredited meat premises" means a
premises on which a person is
authorised by an accreditation
under Part 4 of the Primary
Produce Safety Act 2011 to carry
out meat processing;
(b) by omitting the definition of "licensed
meat premises".
2. Regulation 17(1)(a) is amended by omitting "at
licensed meat premises, within the meaning of
the Meat Hygiene Act 1985" and substituting "by
a person who is the holder of a relevant
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accreditation under Part 4 of the Primary
Produce Safety Act 2011 in accordance with that
accreditation".
3. Regulation 20D is amended as follows:
(a) by omitting from subregulation (1)
"licensed" and substituting "accredited";
(b) by omitting from subregulation (2)
"licensed" first occurring and substituting
"accredited";
(c) by omitting from subregulation (2)(a)
"licensed" and substituting "accredited";
(d) by omitting from subregulation (2)(b)
"licensed" and substituting "accredited";
(e) by omitting from subregulation (3)(d)
"licensed" and substituting "accredited";
(f) by omitting from subregulation (3)(e)
"licensed" twice occurring and
substituting "accredited";
(g) by omitting the definition of "exempt
licensed meat premises" from
subregulation (4) and substituting the
following definition:
"exempt accredited meat premises"
means accredited meat premises
that the Registrar, by instrument
in writing, determines to be
exempt accredited meat premises
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for the purposes of this
regulation;
4. Schedule 4 is amended as follows:
(a) by omitting "a licensed" from column 2
of paragraph (b)(i) of item 1 in the table
in clause 1(b) and substituting "an
accredited";
(b) by omitting "a licensed" from column 2
of paragraph (b)(ii) of item 1 in the table
in clause 1(b) and substituting "an
accredited";
(c) by inserting the following definition
before the definition of "AQIS" in clause
2:
"accredited meat premises" means a
premises on which a person is
authorised by an accreditation
under Part 4 of the Primary
Produce Safety Act 2011 to carry
out meat processing;
(d) by omitting the definition of "licensed
meat premises" from clause 2.
Animal Health Act 1995
1. Section 3(1) is amended by omitting paragraph
(a) from the definition of "swill".
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Environmental Management and Pollution Control Act 1994
1. Clause 4(a) of Schedule 2 is amended as follows:
(a) by omitting "premises within the
meaning of the Meat Hygiene Act 1985"
and substituting "processing within the
meaning of the Primary Produce Safety
Act 2011";
(b) by inserting "meat or meat" after "more
of".
Tasmanian Beef Industry (Research and Development) Trust
Act 1990
1. Section 3 is amended by omitting "Meat
Hygiene Act 1985" from the definition of "the
Minister" and substituting "Primary Produce
Safety Act 2011".
Wildlife (General) Regulations 2010
1. Regulation 3(2) is amended by omitting "at
licensed meat premises, or licensed pet food
works, within the meaning of the Meat Hygiene
Act 1985, are taken not to be products of
wildlife" and substituting "by the holder of a
relevant accreditation under the Primary
Produce Safety Act 2011 in accordance with the
accreditation are taken not to be products of
wildlife".
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2. Regulation 13(1) is amended by omitting
paragraph (c) and substituting the following
paragraph:
(c) supply the meat of any wallaby taken by
the holder under the licence to a person
who is authorised by an accreditation
under the Primary Produce Safety Act
2011 to process wallaby meat or to a
person who is an agent or representative
of such a person.
3. Regulation 14(1) is amended by omitting
paragraph (b) and substituting the following
paragraph:
(b) supply any juvenile muttonbirds taken by
the holder in pursuance of the licence to
a person who is authorised by an
accreditation under the Primary Produce
Safety Act 2011 to process juvenile
muttonbirds or to a person who is an
agent or representative of such a person.
4. Regulation 37(5)(c) is amended by omitting
"sold by a person authorised under the Meat
Hygiene Act 1985" and substituting "supplied by
a person authorised by an accreditation under
Part 4 of the Primary Produce Safety Act 2011".
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SCHEDULE 3 - LEGISLATION REPEALED
Regulation 90
Egg Industry Act 2002 (No. 28 of 2002)
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sch. 4
SCHEDULE 4 - LEGISLATION FURTHER REPEALED
Regulation 91
Meat Hygiene Act 1985 (No. 114 of 1985)
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Primary Produce Safety Act 2011
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sch. 5
SCHEDULE 5 - LEGISLATION RESCINDED
Regulation 92
Egg Industry Regulations 2004 (No. 97 of 2004)
124
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Act No. of
sch. 6
SCHEDULE 6 - LEGISLATION FURTHER
RESCINDED
Regulation 93
Meat Hygiene Regulations 2003 (No. 23 of 2003)
125
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Act No. of
sch. 7
SCHEDULE 7 - LEGISLATION REVOKED
Regulation 94
Proclamation under the Egg Industry Act 2002 (No. 55 of
2003)
Proclamation under the Egg Industry Act 2002 (No. 2 of
2004)
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sch. 8
SCHEDULE 8 - LEGISLATION FURTHER REVOKED
Regulation 95
Proclamation under the Meat Hygiene Act 1985 (No. 131 of
1988)
Government Printer, Tasmania 127