New South Wales: Food Act 2003 (NSW)

Food Act 2003 No 43 An Act to regulate the handling of food for sale and the sale of food and to provide for the application of the Australia New Zealand Food Standards Code in New South Wales; to repeal the Food Act 1989; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Food Act 2003. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act include the following— (a) to ensure food for sale is both safe and suitable for human consumption, (b) to prevent misleading conduct in connection with the sale of food, (c) to provide for the application in this State of the Food Standards Code. 4 Definitions (1) In this Act— advertisement means— (a) any words, whether written or spoken, or (b) any pictorial representation or design, or (c) any other representation by any means at all, used or apparently used to promote, directly or indirectly, the sale of food. analysis includes any examination or testing of food or any other thing. animal includes an amphibian, bird, crustacean, fish, mollusc or reptile. appropriate enforcement agency means, in relation to the provision in which the expression is used, the enforcement agency prescribed by the regulations for the purposes of that provision. approved analyst means a person approved under Division 4 of Part 6. approved form means the form approved from time to time by the Food Authority. approved laboratory means a laboratory approved under Division 3 of Part 6. authorised justice has the same meaning as in the Search Warrants Act 1985. authorised officer means a person appointed under Division 3 of Part 9. Chief Executive Officer means the person employed in the Public Service as the Chief Executive Officer of the Food Authority. Commonwealth Food Authority has the same meaning as Authority in the Food Standards Australia New Zealand Act 1991 of the Commonwealth. enforcement agency means— (a) the Food Authority, or (b) a relevant body appointed as an enforcement agency under Division 2 of Part 9, or (c) any person or body, or a person or body within a class of persons or bodies, prescribed by the regulations for the purposes of this definition (other than a relevant body within the meaning of Division 2 of Part 9). equipment means the whole or part of— (a) any utensil, machinery, instrument, device, apparatus or appliance that is used, or that is designed or intended for use, in or in connection with the handling of food, or (b) any substance, utensil, machinery, instrument, device, apparatus or appliance that is used, or that is designed or intended for use, in cleaning anything referred to in paragraph (a). examine includes weigh, count, test or measure. exercise a function includes perform a duty. food has the meaning given by section 5. Food Authority means the NSW Food Authority constituted under Part 9. Food Authority Fund means the fund established under section 117A. food business has the meaning given by section 6. food safety auditor means a member of staff of the Food Authority authorised under Division 1 of Part 7, or another person approved under that Division, to be a food safety auditor. food safety scheme means a food safety scheme prescribed by the regulations in accordance with Part 8. Food Safety Standards means the standards contained in Chapter 3 of the Food Standards Code. 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, as modified in accordance with regulations referred to in section 140 or 141. food transport vehicle means a vehicle used for the transport of food for sale. Forum means the Food Regulation Forum established under Division 3A of Part 9. function includes a power, authority or duty. handling of food includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or displaying of food. improvement notice means an improvement notice issued under Part 5. label includes any tag, brand, mark or statement in writing or any representation or design or other descriptive matter on or attached to or used or displayed in connection with or accompanying any food or package. package includes any container or wrapper in or by which food intended for sale is wholly or partly encased, covered, enclosed, contained or packed and, in the case of food carried or sold or intended to be carried or sold in more than one package, includes every such package. premises includes— (a) land (whether or not vacant), or (b) the whole or any part of a building, tent, stall or other structure (whether of a permanent or temporary nature), or (c) a pontoon, or (d) a vehicle (other than a food transport vehicle while it is engaged in the transport of food). primary food production has the meaning given by section 7. private corporation means a corporation within the meaning of the Corporations Act 2001 of the Commonwealth. private subsidiary corporation means a private corporation in which the Food Authority has a controlling interest. prohibition order means a prohibition order made under Part 5. proprietor of a food business means— (a) the person carrying on the food business, or (b) if that person cannot be identified the person in charge of the food business. recall order means an order under Part 3 requiring the recall or disposal, or both, of any food. register of offences means the register of offences kept under Part 10A. register of penalty notices means the register of penalty notices kept under Part 10A. sell includes— (a) barter, offer or attempt to sell, or (b) receive for sale, or (c) have in possession for sale, or (d) display for sale, or (e) cause or permit to be sold or offered for sale, or (f) send, forward or deliver for sale, or (g) dispose of by any method for valuable consideration, or (h) dispose of to an agent for sale on consignment, or (i) provide under a contract of service, or (j) supply food as a meal or part of a meal to an employee, in accordance with a term of an award governing the employment of the employee or a term of the employee's contract of service, for consumption by the employee at the employee's place of work, or (k) dispose of by way of raffle, lottery or other game of chance, or (l) offer as a prize or reward, or (m) give away for the purpose of advertisement or in furtherance of trade or business, or (n) supply food under a contract (whether or not the contract is made with the consumer of the food), together with accommodation, service or entertainment, in consideration of an inclusive charge for the food supplied and the accommodation, service or entertainment, or (o) supply food (whether or not for consideration) in the course of providing services to patients in public hospitals (within the meaning of the Health Services Act 1997) or inmates in correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999), or (p) sell for the purpose of resale. unsafe has the meaning given by section 8. unsuitable has the meaning given by section 9. 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, food or equipment that is displayed for the purpose of being offered as a prize or reward or given away for the purpose of advertisement or in the furtherance of trade or business is taken to have been displayed for sale by the owner of the food or equipment. (3) Notes included in this Act do not form part of this Act. 5 Meaning of "food" (1) In this Act, food includes— (a) any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared), or (b) any substance or thing of a kind used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a), or (c) any substance used in preparing a substance or thing referred to in paragraph (a) (other than a substance used in preparing a living thing) if it comes into direct contact with the substance or thing referred to in that paragraph, such as a processing aid, or (d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum, or (e) any substance or thing declared to be a food under a declaration in force under section 6 of the Food Standards Australia New Zealand Act 1991 of the Commonwealth, whether or not the substance, thing or chewing gum is in a condition fit for human consumption. (2) However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth. (3) To avoid doubt, food may include live animals and plants. 6 Meaning of "food business" In this Act, food business means a business, enterprise or activity that involves— (a) the handling of food intended for sale, or (b) the sale of food, regardless of whether the business, enterprise or activity concerned is of a commercial, charitable or community nature or whether it involves the handling or sale of food on one occasion only. 7 Meaning of "primary food production" (1) In this Act, primary food production means the growing, raising, cultivation, picking, harvesting, collection or catching of food, and includes the following— (a) the transportation or delivery of food on, from or between the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught, (b) the packing, treating (for example, washing) or storing of food on the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught, (c) the storage of food in a silo that is not connected with a food processing operation and the transportation or delivery of food from, between or to such silos, (d) the sale of livestock at saleyards and the transportation of livestock to and from saleyards, (e) any other food production activity that is regulated by or under an Act prescribed by the regulations for the purposes of this subsection. (2) However, primary food production does not include— (a) any process involving the substantial transformation of food (for example, manufacturing or canning), regardless of whether the process is carried out on the premises on which the food was grown, cultivated, picked, harvested, collected or caught, or (b) the sale or service of food directly to the public, or (c) any other food production activity that is prescribed by the regulations for the purposes of this subsection. Note— Section 7 (2) (c) enables regulations to be made prescribing food production activities that are not included in the definition of primary food production. Such a regulation might be made, for example, to prescribe a food production activity in relation to which significant and unmanaged food safety hazards have been identified. 8 Meaning of "unsafe" food (1) For the purposes of this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming— (a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use, and (b) nothing happened to it after that particular time and before being consumed by the person that would prevent its being used for its reasonable intended use, and (c) it was consumed by the person according to its reasonable intended use. (2) However, food is not unsafe for the purposes of this Act merely because its inherent nutritional or 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 subsection (1), processes include processes involving storage and preparation. 9 Meaning of "unsuitable" food (1) For the purposes of this Act, food is unsuitable if it is food that— (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 food. (2) However, food is not unsuitable for the purposes of this Act merely because— (a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical, or (b) when it is sold 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. 10 (Repealed) 11 Application of Act to water suppliers (1) The following provisions of this Act do not apply to a water supplier in respect of the supply of water for human consumption through a reticulated water system— (a) sections 13, 15, 16 (1), 17 (1), 18, 19, 20 and 21 (but only to the extent to which section 21 requires compliance with the requirements of the Food Safety Standards), (b) Parts 5, 7 and 8. (2) In this section, water supplier means— (a) a body that is constituted by or under an Act and that has as or as one of its functions the supply of water for human consumption, or (b) a person who is employed or engaged by such a body to supply water for human consumption, or (c) any body or person prescribed by the regulations for the purposes of this section. 12 Relationship to other laws (1) If, by or under any other Act (whether passed before or after the commencement of this section) any provision is made in relation to food for sale, being a provision that is inconsistent with the provisions of this Act or the regulations under this Act, the provisions of this Act or the regulations prevail to the extent of the inconsistency. (2) Any statutory rule relating to any of the following matters must be submitted to the Minister before being made— (a) the wholesomeness, cleanliness or freedom from contamination of food, (b) the composition of, and standards for, food, (c) the cleanliness of vehicles, premises or places in which food is sold or handled for sale. (3) No such statutory rule may be made unless the Minister approves of such of its provisions as relate to any of those matters. (4) Failure to comply with any provision of this section does not affect the validity of a statutory rule. (5) In this section, statutory rule means a regulation, by-law, rule or ordinance made, or required by law to be approved or confirmed, by the Governor or made by a council. Part 2 Offences relating to food Division 1 Serious offences relating to food 13 Handling of food in unsafe manner (1) A person must not handle food intended for sale in a manner that the person knows will render, or is likely to render, the food unsafe. Maximum penalty—1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation. (2) A person must not handle food intended for sale in a manner that the person ought reasonably to know is likely to render the food unsafe. Maximum penalty—750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. 14 Sale of unsafe food (1) A person must not sell food that the person knows is unsafe. Maximum penalty—1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation. (2) A person must not sell food that the person ought reasonably to know is unsafe. Maximum penalty—750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. 15 False description of food (1) A person must not cause food intended for sale to be falsely described if the person knows that a consumer of the food who relies on the description will, or is likely to, suffer physical harm. Maximum penalty—1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation. Note— Examples of food that is falsely described are contained in section 22. (2) A person must not cause food intended for sale to be falsely described if the person ought reasonably to know that a consumer of the food who relies on the description is likely to suffer physical harm. Maximum penalty—750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation. Note— Examples of food that is falsely described are contained in section 22. (3) A person must not sell food that the person knows is falsely described and will, or is likely to, cause physical harm to a consumer of the food who relies on the description. Maximum penalty—1,000 penalty units or imprisonment for 2 years, or both, in the case of an individual and 5,000 penalty units in the case of a corporation. Note— Examples of food that is falsely described are contained in section 22. (4) A person must not sell food that the person ought reasonably to know is falsely described and is likely to cause physical harm to a consumer of the food who relies on the description. Maximum penalty—750 penalty units in the case of an individual and 3,750 penalty units in the case of a corporation. Note— Examples of food that is falsely described are contained in section 22. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. Division 2 Other offences relating to food 16 Handling and sale of unsafe food (1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsafe. (2) A person must not sell food that is unsafe. Maximum penalty—500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. 17 Handling and sale of unsuitable food (1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsuitable. (2) A person must not sell food that is unsuitable. (3) For the purposes of this section, it is immaterial whether the food concerned is safe. Maximum penalty—400 penalty units in the case of an individual and 2,000 penalty units in the case of a corporation. Note— An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. 18 Misleading conduct relating to sale of food (1) A person must not, in the course of carrying on a food business, engage in conduct that is misleading or deceptive or is likely to mislead or deceive in relation to the advertising, packaging or labelling of food intended for sale or the sale of food. (2) A person must not, for the purpose of effecting or promoting the sale of any food in the course of carrying on a food business, cause the food to be advertised, packaged or labelled in a way that falsely describes the food. Note— Examples of food that is falsely described are contained in section 22. (3) A person must not, in the course of carrying on a food business, sell food that is packaged or labelled in a way that falsely describes the food. Note— Examples of food that is falsely described are contained in section 22. (4) Nothing in subsection (2) or (3) limits the generality of subsection (1). Maximum penalty—500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation. Note— An offence against subsection (1), (2) or (3) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. 19 Sale of food not complying with purchaser's demand (1) A person must not, in the course of carrying on a food business, supply food by way of sale if the food is not of the nature or substance demanded by the purchaser. Maximum penalty—500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. (2) For the purposes of this section, it is immaterial whether the food concerned is safe. 20 Sale of unfit equipment or packaging or labelling material (1) A person must not sell equipment that if used for the purposes for which it was designed or intended to be used— (a) would render or be likely to render food unsafe, or (b) would put other equipment, or would be likely to put other equipment, in such a condition that, if the other equipment were used for the purposes for which it was designed or intended to be used, it would render, or be likely to render, food unsafe. (2) A person must not sell packaging or labelling material that if used for the purposes for which it was designed or intended to be used would render or be likely to render food unsafe. Maximum penalty—500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. 21 Compliance with Food Standards Code (1) 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 a food business or to food intended for sale or food for sale. (2) A person must not sell any food that does not comply with a requirement of the Food Standards Code that relates to the food. (3) A person must not sell or advertise for sale any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code. (4) A person must not sell or advertise for sale any food in a manner that contravenes a provision of the Food Standards Code. (5) This section does not require compliance with a provision of the Food Standards Code in relation to the conduct of a food business that is primary food production unless a food safety scheme provides that the provision applies to the food business or to a class of food businesses that includes the food business concerned. Maximum penalty—500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation. Note— An offence against subsection (1)–(4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. 22 False descriptions of food (1) For the purposes of this Part, food that is falsely described includes food to which any one or more of the following paragraphs applies— (a) the food is represented as being of a particular nature or substance for which there is a prescribed standard under the Food Standards Code and the food does not comply with that prescribed standard, (b) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance in a quantity or proportion that significantly diminishes its food value or nutritive properties as compared with food of the represented nature or substance, (c) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance of lower commercial value than food of the represented nature or substance, (d) the food is represented as being of a particular nature or substance and a constituent of the food has been wholly or partly removed so that its properties are diminished as compared with food of the represented nature or substance, (e) any word, statement, device or design used in the packaging or labelling of the food, or in an advertisement for the food, would create a false impression as to the nature or substance of the food, or the commercial value of the food, in the mind of a reasonable person, (f) the food is not of the nature or substance represented by the manner in which it is packaged, labelled or offered for sale. (2) Without limiting the application of subsection (1) of this section to section 18 (2), food is falsely described for the purposes of section 18 (2) if it is supplied in response to a purchaser's request for a particular type of food, or a food that does not contain a particular ingredient, and the food is not of that type or contains that ingredient. 23 Application of provisions outside the State For the purposes of a provision of this Part, it does not matter that the food concerned was sold or intended for sale outside this State. Note— See section 25 for a defence in relation to food intended for export. Division 2A Beef labelling 23A Beef labelling schemes (1) The regulations may prescribe schemes regulating the use of words and expressions used in the labelling of any type of beef intended for sale or beef for sale to indicate the type of beef, the quality of beef or any other characteristic of the beef. (2) Without limiting subsection (1), the regulations prescribing a scheme may— (a) specify the type of beef that the scheme applies to, or (b) specify the requirements for labelling beef with a word or expression indicating the type, quality or any other characteristic of the beef, or (c) specify any other conditions relating to the use of a word or expression indicating the type, quality or any other characteristic of the beef, or (d) prohibit activities in relation to the labelling of beef, or (e) require records to be kept in relation to the labelling of beef. (3) This section does not limit the operation of the provisions of this Act relating to food safety schemes. (4) In this section— beef means the whole or any part of the carcase of any bovine animal. 23B Misleading and deceptive conduct in relation to beef (1) For the purposes of section 18 (1), a person carrying on a food business is taken to have engaged in conduct that is misleading or deceptive (or is likely to mislead or deceive) in relation to the advertising, packaging or labelling of beef intended for sale, or in relation to the sale of beef, if— (a) the person does not use AUS-MEAT language consistently (unless the person is complying with a scheme prescribed under section 23A), or (b) the person voluntarily adopts, but does not consistently comply with, a scheme prescribed under section 23A, or (d) the beef is advertised, packaged or labelled with the word "manufacturing" and does not also include the words "suitable for mince only". (2) For the purposes of subsection (1) (a), a person does not use AUS-MEAT language consistently if— (a) the person advertises, packages, labels or sells beef described by means of AUS-MEAT language, and (b) other beef advertised, packaged, labelled or sold by that person is described by any other means that does not include a description by means of— (i) AUS-MEAT language, or (ii) a consumer descriptor. (3) For the purposes of subsection (1) (b), a person voluntarily adopts, but does not consistently comply with, a scheme prescribed under section 23A, if— (a) the person labels any beef in accordance with a scheme prescribed under section 23A or advertises, packages or sells beef that has been labelled in accordance with such a scheme, and (b) the person does not comply with that scheme in respect of all beef to which the scheme applies that is advertised, packaged, labelled or sold by that person. (4) This section does not limit the operation of section 18 (1). (5) In this section— AUS-MEAT language means any words, letters or symbols (other than the words beef, steak or veal or any words indicating a cooking method) that (whether alone, in combination or together with other words, letters or symbols) are used by the AUS-MEAT manual to designate or indicate beef as belonging to a particular type, quality, classification, category, cut or grade. AUS-MEAT manual means the Australian Meat Industry Classification System (Manual 1) (2009 edition) published by AUS-MEAT Limited (ACN 082 528 881) or, if a replacement document is prescribed for the purposes of this definition, that document. beef means the whole or any part of the carcase of any bovine animal. consumer descriptor means a word or expression prescribed by the regulations that is used to describe beef that is of a cut prescribed by the regulations. 23C False descriptions of beef (1) For the purposes of section 18 (2), beef is falsely described if— (a) it is described by means of AUS-MEAT language that is referable to beef of a particular type, quality, classification, category, cut or grade and— (i) it has not been assessed in accordance with the requirements of the AUS-MEAT manual, or (ii) it does not comply with the standards set out in the AUS-MEAT manual, with respect to beef of that type, quality, classification, category, cut or grade, or (b) it is described by means of a word or expression that is regulated in accordance with a scheme prescribed under section 23A and the description does not comply with the requirements of the scheme, or (c) it is described by means of a word or expression that is prescribed for the purposes of the definition of consumer descriptor in section 23B and the beef cannot be described as being of the cut that is prescribed in relation to that word or expression. (2) This section does not limit the operation of section 18 (2). (3) In this section— AUS-MEAT language has the same meaning as it has in section 23B. AUS-MEAT manual has the same meaning as it has in section 23B. beef means the whole or any part of the carcase of any bovine animal. 23D Exemptions for restaurants, take-away food shops and similar outlets (1) Subject to subsection (2), any person selling beef that has been cooked and is intended for immediate consumption (including, but not limited to, restaurants and take-away food shops) is exempt from sections 23B and 23C. (2) The regulations may prescribe any persons or classes of persons in respect of which the exemption provided by this section is not to apply from the date specified in the regulations. Division 3 Defences 24 Defence relating to publication of advertisements (1) In any proceedings for an offence under this Part in relation to the publication of an advertisement, it is a defence for a person to prove that the person carried on the business of publishing or arranging for the publication of advertisements and that the person published or arranged for the publication of the advertisement in question in the ordinary course of that business. (2) Subsection (1) does not apply if the person— (a) should reasonably have known that the publication of the advertisement was an offence, or (b) had previously been informed in writing by the Food Authority that publication of such an advertisement would constitute an offence, or (c) is the proprietor of a food business or is otherwise engaged in the conduct of a food business for which the advertisements concerned were published. 25 Defence in respect of food for export (1) In any proceedings for an offence under this Part involving a contravention of or failure to comply with a provision of the Food Standards Code in relation to food, it is a defence for a person to prove that— (a) the food in question is to be exported to another country, and (b) the food complies with the laws in force at the time of the alleged offence in the place to which the food is to be exported, being laws that deal with the same subject-matter as the provision of the Food Standards Code concerned. (2) This section does not apply to food that was originally intended for export but was sold in this State. 26 Defence of due diligence (1) In any proceedings for an offence under this Part, 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 food concerned as were reasonable in all the circumstances, or (ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the person, and (c) that the person did not import the food into this State from another country, and (d) in the case of an offence involving the sale of food, that— (i) the person sold the food in the same condition as when the person purchased it, or (ii) the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act or the regulations. (3) In subsection (2) (a), 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. (4) Without limiting the ways in which a person may satisfy the requirements of subsection (1) or (2) (b) (i), a person may satisfy those requirements by proving that— (a) in the case of an offence relating to a food business for which a food safety program is required to be prepared in accordance with the regulations, the person complied with a food safety program for the food business that complies with the requirements of the regulations, or (b) in any other case, the person complied with a scheme (for example, a quality assurance program or an industry code of practice) that was— (i) designed to manage food safety hazards and based on Australian national or international standards, codes or guidelines designed for that purpose, and (ii) documented in some manner. 27 Defence of mistaken and reasonable belief not available In any proceedings for an offence under Division 2, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence. 28 Defence in respect of handling food In any proceedings for an offence under section 13, 16 (1) or 17 (1), it is a defence if it is proved that the person caused the food to which the offence relates to be destroyed or otherwise disposed of immediately after the food was handled in the manner that was likely to render it unsafe or unsuitable. 29 Defence in respect of sale of unfit equipment or packaging or labelling material In any proceedings for an offence under section 20 (1) or (2), it is a defence if the person proves that the person reasonably believed that the equipment or material concerned was not intended for use in connection with the handling of food. Part 3 Emergency powers 30 Making of order An order may be made under this Part by the Food Authority if the Food Authority has reasonable grounds to believe that the making of the order is necessary to prevent or reduce the possibility of a serious danger to public health or to mitigate the adverse consequences of a serious danger to public health. 31 Nature of order An order under this Part may do any one or more of the following— (a) require the publication of warnings, in a form approved by the Food Authority, that a particular food or type of food is unsafe, (b) prohibit the cultivation, taking, harvesting or obtaining, from a specified area, of a particular food or type of food, (c) prohibit a particular food or type of food from being advertised or sold, (d) direct that a particular food or type of food consigned or distributed for sale or sold be recalled and specify the manner in which, and the period within which, the recall is to be conducted, (e) direct that a particular food or type of food be impounded, isolated, destroyed or otherwise disposed of and specify the manner in which the impounding, isolation, destruction or disposal is to be conducted, (f) prohibit absolutely the carrying on of an activity in relation to a particular food or type of food, or permit the carrying on of the activity in accordance with conditions specified in the order, (g) without limiting the generality of paragraph (f), impose conditions relating to the taking and analysis of samples of the food or of water or soil or any other thing that is part of the environment in which that activity is carried on in relation to the food, (h) specify methods of analysis (not inconsistent with any methods prescribed by the Food Standards Code) of any samples required to be taken in accordance with the order. 32 Special provisions relating to recall orders (1) A recall order may require the person, or the persons of a class, that is bound by the order to disclose to the public or to a class of persons specified in the order, in a manner so specified, any one or more of the following— (a) the particular food or type of food to be recalled or disposed of, (b) the reasons why the food is considered to be unsafe, (c) the circumstances in which the consumption of the food is unsafe, (d) procedures for disposing of the food. (2) A person who is required by a recall order to conduct a recall of any food must give written notice to the Food Authority of the completion of the recall as soon as practicable after that completion. (3) A person who is bound by a recall order is liable for any cost incurred by or on behalf of the Food Authority in connection with the recall order and any such cost is taken to be a debt due to the Food Authority from that person. (4) In any proceedings for the recovery of the debt, a certificate signed by the Food Authority stating the amount of any costs and the manner in which they were incurred is evidence of the matters certified. 33 Manner of making orders (1) An order under this Part— (a) may be made in writing addressed to the person or persons intended to be bound by it, and served on that person or each of those persons, as the case requires, or (b) may be addressed to several persons, to a class of persons, or to all persons. (2) Notice of an order addressed as referred to in subsection (1) (b) setting out the terms of the order and the persons to be bound by the order must, as soon as practicable after the order is made, be published— (a) in such reasonably practicable manner as, in the opinion of the Food Authority, will be most likely to bring the order to the attention of the persons bound by it, and (b) on the NSW legislation website if the order is addressed to a class of persons or to all persons. (3) An order under this Part, when it takes effect, is binding on the person or persons to whom it is addressed. (4) An order that is served on a person takes effect when it is served. (5) An order, notice of which is published under subsection (2), takes effect at the beginning of the first day on which the notice was published. (6) An order ceases to have effect at the expiration of 90 days after the day on which it takes effect unless it is sooner revoked. (7) Subsection (6) does not prevent a further order being made in the same terms as an order that has expired. (8) An order under this Part may be varied or revoked by the Food Authority in the same manner as the order was made. 34 Compensation (1) A person bound by an order under this Part who suffers loss as a result of the making of the order may apply to the Food Authority for compensation if the person considers that there were insufficient grounds for the making of the order. (2) If there were insufficient grounds for the making of the order, the Food Authority is to pay such compensation to the applicant as is just and reasonable. (3) The Food Authority is to send written notification of its determination as to the payment of compensation under this section to each applicant for the payment of such compensation. (4) If the Food Authority has not determined an application for compensation under this section within 28 days of receiving the application, the Food Authority is taken to have refused to pay any compensation. (5) An applicant for the payment of compensation under this section who is dissatisfied with a determination by the Food Authority as to the refusal to pay compensation or as to the amount of compensation may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997— (a) within 28 days after the day on which notification of the determination was received, or (b) in a case to which subsection (4) applies, within 28 days after the expiration of the 28-day period referred to in that subsection. 35 Failure to comply with emergency order A person must not, without reasonable excuse— (a) carry on an activity in contravention of any prohibition imposed on the person by an order under this Part, or (b) neglect or refuse to comply with a direction given by such an order, or (c) fail to comply with a condition specified in such an order. Maximum penalty—500 penalty units in the case of an individual or 2,500 penalty units in the case of a corporation. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 122. 36 Limitation on stay of operation of emergency orders In any proceedings for judicial review or in any other proceedings, a court or tribunal is not authorised to make an interlocutory order that has the effect of staying the operation of an order under this Part. Part 4 Inspection and seizure powers Division 1 Inspection 37 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 that the authorised officer reasonably believes are used in connection with the handling of any food intended for sale or the sale of food, or any food transport vehicle, (b) alone, or with such police officers or other persons as the authorised officer considers necessary, enter and inspect any premises or food transport vehicle, in which the authorised officer reasonably believes that there are any records or documents that relate to the handling of any food intended for sale or the sale of food, (c) examine any food intended for sale, (d) open and examine any package that the authorised officer reasonably believes contains any food intended for sale or any equipment, (e) open and examine any equipment, (f) examine any labelling or advertising material that appears to the authorised officer to be intended for use in connection with any food intended for sale or any equipment, (g) subject to Division 1 of Part 6, for the purpose of analysing any food sold or intended for sale or for carrying out any other examination in order to determine whether the provisions of this Act or the regulations are being complied with, demand, select and obtain samples of any food, (h) for the purpose of analysis, take samples of water or soil or any other thing that is part of the environment in which any food is handled to determine whether that environment poses a risk to the safety of the food for human consumption, (i) take samples of any thing, 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 or the regulations, (j) 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 and retain (for such time as may be reasonably necessary) any such records or documents or any part of them, (k) stop and detain any vehicle that the authorised officer is authorised by this subsection to enter, (l) open, or require to be opened, any container used for the conveyance of goods, or any package, that the authorised officer reasonably believes to contain any food sold or intended for sale, or any equipment, (m) take such photographs, films or audio or visual recordings as the authorised officer considers necessary, (n) take any measurements and make sketches or drawings or any other type of record, (o) require a person to provide information or answer questions, including through the use of audio or audio-visual recordings or other electronic means, in connection with the authorised officer's functions under this Act or to produce any record, document or thing that an authorised officer is authorised to examine under this Act, (p) require a person to state the person's name and residential address, (q) generally make such investigations and inquiries as may be necessary, including through the use of audio or audio-visual recordings or other electronic means, to ascertain whether an offence under this Act or the regulations has been or is being committed. (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, or (c) if that part of the premises is being used for the preparation or service of meals provided with paid accommodation. 38 Power of seizure An authorised officer may seize any food, or any vehicle, equipment, package or labelling or advertising material, or any other thing at all, that the authorised officer believes on reasonable grounds— (a) is evidence that an offence under this Act or the regulations has been or is being committed, or (b) does not comply with a provision of this Act or the regulations, or, in the case of food, is labelled or packaged in a way that does not comply with a provision of this Act or the regulations. 39 Search warrants (1) An authorised officer may apply to an authorised justice for a search warrant if the authorised officer has reasonable grounds for believing that a provision of this Act or the regulations has been or is being contravened on premises. (2) An authorised 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 authorising the authorised officer named in the warrant, when accompanied by a police officer, and such other person (if any) as is named in the warrant— (a) to enter the premises concerned, and (b) to search the premises for evidence of a contravention of this Act or the regulations. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. 40 Failure to comply with requirements of authorised officers (1) A person must not, without reasonable excuse, fail to comply with a requirement of an authorised officer duly made under this Division. Maximum penalty—500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation. (2) Such a requirement is not duly made unless, at the time of the making of the requirement, the person of whom the requirement is made is informed by the authorised officer that a refusal or failure to comply with the requirement may constitute an offence. 41 Interfering with seized items A person must not, without the permission of an authorised officer, detain, remove or tamper with any food, vehicle, equipment, package or labelling or advertising material or other thing that has been seized under this Act, unless it has been returned in accordance with Division 2 or an order disallowing the seizure has been made under that Division. Maximum penalty—500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation. 42 False information A person must not, in connection with a requirement or direction under this Act, provide any information or produce any document that the person knows is false or misleading in a material particular. Maximum penalty—500 penalty units in the case of an individual and 2,500 penalty units in the case of a corporation. 43 Obstructing or impersonating authorised officers (1) A person must not, without reasonable excuse, resist, obstruct, or attempt to obstruct, an authorised officer in the exercise of the authorised officer's functions under this Act. (2) A person must not impersonate an authorised officer. (3) A person must not threaten, intimidate or assault an authorised officer in the exercise of the authorised officer's functions under this Act. Maximum penalty—500 penalty units. 43A Powers of authorised officers and food safety auditors may be exercised concurrently A person who is a food safety auditor and an authorised officer and who is exercising the functions of a food safety auditor in relation to any premises or food transport vehicle may also exercise the functions of an authorised officer but only if the person has first produced his or her certificate of authority issued under section 115— (a) to the proprietor of the food business that uses those premises or food transport 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. Division 2 Items seized by authorised officers 44 Seized items (1) Any item seized under this Part may, at the option of the authorised officer who seized the item or of any authorised officer acting in his or her place, be detained in the premises where it was found or be removed to another place and detained there. (2) If the item is to be detained in the premises where it was found, the authorised officer— (a) may place it in a room, compartment or cabinet in those premises, and (b) may mark, fasten and seal the door or opening providing access to that room, compartment or cabinet, and (c) must ensure that it is marked in such a way as to indicate that it has been seized under this Act. 45 Notification of seizure An authorised officer who seizes any item under this Part must, as soon as practicable after the seizure, give the person from whom the item was seized written notification of the seizure that includes the following— (a) a description of the items seized, (b) the reason for the seizure, (c) an explanation of the person's right to make an application to the court under section 52 for an order disallowing the seizure, (d) the address of the place where the item is held if the item has been removed from the premises where it was seized, (e) the name of the enforcement agency to whom the authorised officer reports. 46 Destruction of filthy, decomposed or putrid matter If an authorised officer who has seized food under this Part is satisfied that the food consists wholly or partly of filthy, decomposed or putrid matter or that it poses an immediate risk to health or property, the authorised officer (disregarding any provision to the contrary in this Part) may cause the food to be destroyed. 47 Return of seized item If, before any item seized under this Part is forfeited to the Crown under this Division, the enforcement agency concerned becomes satisfied that there has been no contravention of this Act or the regulations of which the item is evidence, the enforcement agency must, as soon as practicable, cause the item to be delivered to— (a) the person from whom it was seized, or (b) such other person as appears to the enforcement agency to be entitled to it. 48 Forfeiture of item (1) An item seized under this Part is forfeited to the Crown— (a) on the expiration of the period allowed by section 52 for the making of an application for an order disallowing the seizure if the item has not been dealt with under section 47 and no application under section 52 has been made within that period, or (b) if an application for an order disallowing the seizure has been made under section 52 but the application has been refused or has been withdrawn before a decision on the application has been made, on the date on which the application is refused or withdrawn. (2) An item forfeited to the Crown under this section may be destroyed, sold or otherwise disposed of as the enforcement agency concerned may, generally or in a particular case, direct. 49 Cost of destruction or disposal of forfeited item (1) A person who was the owner of an item immediately before its forfeiture under this Division is liable for any cost incurred by or on behalf of the enforcement agency concerned in connection with the lawful destruction or disposal of the item (including any storage costs) and any such cost is taken to be a debt due to the enforcement agency from that person. (2) In any proceedings for the recovery of the debt, a certificate signed by the enforcement agency stating the amount of any costs and the manner in which they were incurred is evidence of the matters certified. 50 Return of forfeited item (1) An item seized under this Part that is forfeited under this Division and that has not been destroyed or otherwise disposed of in a manner that would prevent its return must, as soon as practicable, be delivered to the person from whom it was seized, or such other person as appears to the enforcement agency concerned to be entitled to it, if the enforcement agency becomes satisfied that no contravention of this Act or the regulations has been committed in relation to the item. (2) On being so delivered, any proprietary and other interests in the item that existed immediately before its forfeiture are restored. 51 Compensation to be paid in certain circumstances (1) A person may apply for compensation for an item seized under this Part to the enforcement agency that appointed the authorised officer who seized the item, but only if the period allowed by section 52 for the making of an application for an order disallowing the seizure has expired and no application has been made. (2) An enforcement agency is, on an application made in accordance with this section, to pay such compensation as is just and reasonable in relation to any item seized under this Part by an authorised officer appointed by it if— (a) no contravention of this Act or the regulations has been committed in relation to the item, and (b) the item cannot be returned or has in consequence of the seizure depreciated in value. (3) An enforcement agency required to make a determination under subsection (2) as to the payment of compensation is to send written notification of its determination to the person from whom the item was seized and any person seeking compensation under this section. (4) If an enforcement agency determines to pay compensation under this section in relation to an item, the compensation is to be paid to the person from whom the item was seized, or such other person as appears to the enforcement agency to be entitled to it. (5) A person from whom an item was seized under this Part, or any other person who has sought compensation under this section, who is dissatisfied with a determination by an enforcement agency under this section as to the payment of such compensation may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the determination within 10 days after the date on which notification of the determination was received. 52 Application for order disallowing seizure (1) A person claiming to be entitled to any item seized under this Part may, within 10 days after the date on which the seizure took place, lodge an application with the District Court or the Local Court for an order disallowing the seizure. (2) The application is to be made in accordance with the rules governing the court and is not to be heard unless the applicant has previously served a copy of the application on the enforcement agency concerned. 53 Enforcement agency entitled to answer application The enforcement agency concerned is entitled to appear as respondent at the hearing of an application made under section 52. 54 Order disallowing seizure of item The court, on the hearing of an application made under section 52, must make an order disallowing the seizure of an item if— (a) it is proved that the applicant would, but for the seizure, be entitled to the item and it is not proved that an offence under this Act or the regulations was being, or had been, committed, being an offence of which the item was evidence, or (b) in the opinion of the court, there are exceptional circumstances justifying the making of such an order, but otherwise the court must refuse the application. 55 Ancillary orders (1) In the event that the court makes an order for the return of any item seized under this Part, it must also make one or both of the following orders— (a) an order directing the respondent to cause the item to be delivered to the applicant or to such other person as appears to the court to be entitled to it, (b) if the item cannot for any reason be so delivered or has in consequence of the seizure depreciated in value, an order directing the enforcement agency concerned to pay to the applicant such amount by way of compensation as the court considers to be just and reasonable. (2) Despite subsection (1), the court is not to award an amount of compensation that exceeds its general monetary jurisdiction. (3) The award of costs with respect to the hearing of the application lies in the discretion of the court. (4) If the court makes an order for the payment of any amount as compensation or awards any amount as costs, the order is enforceable as a judgment of the court. 56 Adjournment pending hearing of other proceedings If on the hearing of an application made under section 52 it appears to the court that the item that is the subject of the application is required to be produced in evidence in any pending proceedings in connection with an offence under this Act or the regulations or under any other Act or regulations under any other Act, the court, on the application of the respondent or on its own motion, may adjourn the hearing until the conclusion of those proceedings. Part 5 Improvement notices and prohibition orders for premises or equipment 57 Unclean or unfit premises, vehicles or equipment If an authorised officer believes, on reasonable grounds, that— (a) any premises used by a food business in connection with the handling of food intended for sale or any equipment or food transport vehicle is in an unclean or insanitary condition or is otherwise unfit for the purpose for which it is designed or intended to be used, or (b) any premises used by a food business in connection with the handling of food intended for sale or any equipment or food transport vehicle does not comply with a provision of the Food Safety Standards with which the food business is required to comply, or (c) in relation to any premises used in connection with the handling of food for sale or any food transport vehicle, any relevant food safety program prepared in accordance with the regulations is