Queensland: Food Act 2006 (Qld)

Food Act 2006 An Act to provide for matters relating to handling and selling food, securing the safety and suitability of food and fixing standards for food, and for other purposes Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the Food Act 2006. 2 Commencement This Act commences on a day to be fixed by proclamation. Part 2 Application and purposes of Act Division 1 Application 3 Act binds all persons (1) This Act binds all persons. (2) However, this Act does not bind the State, a government owned corporation or a rail government entity under the Transport Infrastructure Act 1994. 4 Exemption from application of Act (1) This Act does not apply to— (a) the handling or sale of food at a tuckshop operated by a parents and citizens association at a State school; or (b) the handling, at a person's home, of food intended to be given away to a non-profit organisation for sale by the organisation. Example— baking a cake at a person's home to give to a junior football club committee for sale by the committee at a fundraising stall (2) In this section— parents and citizens association see the Education (General Provisions) Act 2006, schedule 4. State school see the Education (General Provisions) Act 2006, schedule 4. 5 General application of Act to ships (1) This section states the application of this Act to ships in Queensland waters and ships in waters beyond the outer limit of Queensland waters (other waters). (2) This Act applies to— (a) a ship in Queensland waters; and (b) to the extent this Act applies in other waters, for example, under the Crimes at Sea Act 2001—a ship in other waters if the ship is travelling from a place in Queensland to a place in Queensland. (3) This Act does not apply to— (a) a ship in other waters if the ship is travelling from a place outside of Queensland to a place outside of Queensland; or (b) a ship of the Australian Defence Force or another country. 6 How Act affects particular rights and remedies (1) No provision of this Act creates a civil cause of action based on a contravention of the provision. (2) This Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise. (3) Without limiting subsection (2), compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached. 7 Act not affected by Food Production (Safety) Act 2000 The Food Production (Safety) Act 2000 is additional to, and does not limit, this Act. Division 2 Purposes of Act 8 Main purposes The main purposes of this Act are as follows— (a) to ensure food for sale is safe and suitable for human consumption; (b) to prevent misleading conduct relating to the sale of food; (c) to apply the food standards code. 9 How main purposes are primarily achieved The main purposes are to be achieved primarily by— (a) providing for the licensing of particular food businesses; and (b) requiring particular licensees to have an accredited food safety program; and (c) providing for the accreditation and auditing of food safety programs; and (d) providing for the display of nutritional information for food; and (e) providing for the monitoring and enforcement of compliance with this Act and the food standards code. Part 3 Interpretation Division 1 Dictionary and notes in text 10 Definitions The dictionary in schedule 3 defines particular words used in this Act. 11 Notes in text A note in the text of this Act is part of the Act. Division 2 Particular definitions 12 Meaning of food (1) Food includes— (a) a substance or thing of a kind used, or represented as being for use, for human consumption (whether it is raw, prepared or partly prepared); and (b) a substance or thing of a kind used, or represented as being for use, as an ingredient or additive in a substance or thing mentioned in paragraph (a); and (c) a substance used in preparing a substance or thing mentioned in paragraph (a) if it comes into direct contact with the substance or thing mentioned in that paragraph, including, for example, a processing aid; and (d) chewing gum or an ingredient or additive in chewing gum, or a substance used in preparing chewing gum; and (e) water, other than reticulated water, that is— (i) for sale by retail (whether it is packaged for sale or not); and (ii) intended for human consumption; and (f) water that is carried in bulk in a vehicle and intended for human consumption, regardless of the source of the water; and Example of a source of water— a reticulated water supply system (g) reticulated water on premises where a food business is carried on; and (h) a substance or thing declared to be a food under a declaration in force under the Food Standards Australia New Zealand Act 1991 (Cwlth), section 3B; whether or not the substance, thing, chewing gum or water 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 (Cwlth). 13 Meaning of food business 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 and whether it involves the handling or sale of food on 1 occasion only. 14 Meaning of food standards code (1) Subject to subsection (2), food standards code means the Australia New Zealand Food Standards Code as defined in the Food Standards Australia New Zealand Act 1991 (Cwlth). (2) In applying the food standards code for this Act— (a) the code applies with the changes— (i) stated in schedule 2; or (ii) prescribed under a regulation made under section 278(2)(a); and Note— A regulation made under section 278(2)(a) expires 1 year after it is made. (b) standard 3.2.1, clause 4 of standard 3.2.2, standard 3.3.1 and chapter 4 of the code do not apply. 15 Meaning of handling of food Handling, of food, includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving and displaying of food. 16 Meaning of manufacture (1) Manufacture, in relation to food, includes the following— (a) making food by combining ingredients; Examples— • producing frozen meals in a factory • producing cake mixes (b) significantly changing the condition or nature of food by any process; Examples— • milling flour • peeling, cutting and freezing vegetables (c) bottling or canning food, including, for example, bottling water or canning fruit; (d) packing unpackaged food, other than unprocessed primary produce; Example— packing bulk ground coffee into packages for retail sale (e) making ice. (2) However, manufacture, in relation to food, does not include the following— (a) preparing food at a particular place for retail sale at the place, including sale for immediate consumption; Examples— • preparing food at a restaurant for sale to a person dining in the restaurant • preparing and packing sandwiches in a package at a cafe for retail sale at the cafe (b) preparing food for a food business that involves off-site catering; (c) making ice at a particular place for use at the place; (d) changing the condition of food merely by changing its temperature. 17 Meaning of off-site catering (1) Off-site catering, in relation to a food business, means serving potentially hazardous food at a place other than the principal place of business for the food business. (2) Off-site catering does not include— (a) merely delivering food under an arrangement with, or on the order of, a consumer; or Example— delivering pizzas from a takeaway pizza shop (b) the sale of food from mobile premises or temporary premises. Example— the sale of ice-creams from a mobile ice-cream van 18 Meaning of on-site catering (1) On-site catering, in relation to a food business, means preparing and serving potentially hazardous food, to all consumers of the food at the premises from which the business is carried on, under an agreement under which the food is— (a) of a predetermined type; and (b) for a predetermined number of persons; and (c) served at a predetermined time; and (d) for a predetermined cost. (2) On-site catering does not include— (a) preparing and serving food at an eating establishment; or (b) merely preparing and displaying food for self-service by consumers. Example for paragraph (b)— preparing food for consumption from a buffet at a restaurant (3) In this section— eating establishment means a restaurant, cafe or similar food business that involves the preparation and service of food on the order of a person for immediate consumption by the person. 19 Meaning of sell (1) Sell includes— (a) barter, offer or attempt to sell; and (b) receive for sale; and (c) have in possession for sale; and (d) display for sale; and (e) cause or permit to be sold or offered for sale; and (f) send, forward or deliver for sale; and (g) dispose of in any way for valuable consideration; and (h) dispose of to an agent for sale on consignment; and (i) provide under a contract of service; and (j) in relation to food, supply the food as a meal or part of a meal to an employee, under 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; and (k) dispose of by way of raffle, lottery or other game of chance; and (l) offer as a prize or reward; and (m) give away for the purpose of advertisement or in furtherance of trade or business; and (n) in relation to food, supply the 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; and (o) in relation to food, give the food away, from a food business, to a person; and (p) sell for the purpose of resale. (2) However, sell does not include, in relation to food— (a) prepare the food at a private residence, and supply it at the residence, to a person employed at the residence for consumption by the person; or Example— preparing and supplying meals to a live-in gardener or housekeeper (b) prepare the food at a private residence and supply it at the residence for a fee. Examples— • preparing and supplying food at a family home to a student boarding in the home • preparing and supplying food at the home of a person with a disability as part of a home support service for the person (3) For 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. (4) In this section— bed and breakfast facility means premises from which a food business providing accommodation and breakfast for guests is carried on, if the person who carries on the business lives at the premises. farmstay premises means premises on a farm, other than a bed and breakfast facility, at which paying guests of the farm are given food and accommodation. private residence does not include the following— (a) premises in which a residential service under the Residential Services (Accreditation) Act 2002 is conducted; (b) premises in which residential care within the meaning of the Aged Care Act 1997 (Cwlth) is provided; (c) farmstay premises; (d) a bed and breakfast facility. 20 Meaning of unsafe food (1) 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 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 (l)— processes include processes involving storage and preparation. 21 Meaning of unsuitable food (1) 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 a 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 other than by slaughter, and has not been declared under an 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 merely because— (a) it contains an agricultural or veterinary chemical in an amount that does not contravene the food standards code; or (b) 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 stated in the food standards code; or (c) it contains a matter or substance that is permitted by the food standards code. (3) In this section— animal includes an amphibian, bird, crustacean, fish, mollusc and reptile. 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. Part 4 Roles of the State and local governments 22 Provisions that are administered only by the State (1) The following provisions of this Act are to be administered and enforced by the State and not by local governments— (a) sections 34, 37, 38 and 39(2) to (4); (b) chapter 5; (c) section 159; (d) chapter 6A; (e) chapter 7, part 4. (2) This section is subject to section 25. 23 Provisions that are administered only by local governments (1) The following provisions of this Act are to be administered and enforced by local governments and not by the State— (a) section 39(1); (b) chapters 3 and 4; (c) chapter 6, other than section 159. (2) This section is subject to section 25. 24 Provisions that are administered by both State and local governments Sections 32, 33, 35 and 36 are to be administered and enforced by the State and local governments. 25 When State and local governments administer this Act in partnership (1) The chief executive officer of a local government and the chief executive may agree that— (a) the State do a thing in the administration or enforcement of this Act for a matter mentioned in section 23(1); or (b) the local government do a thing in the administration or enforcement of this Act for a matter mentioned in section 22(1). (2) For subsection (1)(a), the chief executive may perform functions and exercise powers for this Act for a matter mentioned in section 23(1). (3) For subsection (1)(b), the chief executive officer may perform functions and exercise powers for this Act for a matter mentioned in section 22(1). 26 Action by the State if local government does not administer and enforce this Act (1) Subsection (2) applies if the chief executive— (a) is satisfied a local government has not done, or sufficiently done, a thing in the administration or enforcement of this Act for a matter mentioned in section 23(1); and (b) is reasonably of the opinion that doing the thing is necessary— (i) to reduce a significant risk associated with the sale of unsafe or unsuitable food; or (ii) to prevent a significant risk to public health or safety recurring. (2) The chief executive may do the thing and the reasonable costs and expenses incurred by the chief executive are a debt payable by the local government to the State. (3) For subsection (1)(b), in forming an opinion about whether there is a significant risk associated with the sale of unsafe or unsuitable food, or to public health or safety, the chief executive must have regard to— (a) the potential consequences to the health of individuals; and (b) the number of persons likely to be exposed to the risk. (4) For this section, the chief executive may perform functions and exercise powers for this Act for a matter mentioned in section 23(1). 27 Procedure before taking action under s 26 Before the chief executive does a thing under section 26(2), the chief executive must— (a) consult with the chief executive officer of the local government; and (b) give the local government a reasonable opportunity to do the thing. 28 State may require report from local government (1) This section applies to a matter under this Act administered and enforced— (a) by both the State and local governments under section 24 or 25; or (b) by local governments only. (2) The chief executive, by notice, may ask a local government to give the chief executive information about the local government's administration and enforcement of the matter within a stated reasonable time. (3) The local government must comply with the request. (4) However, before giving notice under this section, the chief executive must consult with the chief executive officer of the local government. 29 Chief executive may give report to local government (1) The chief executive may give a local government a report about the administration of this Act by the chief executive and local governments. (2) The report may contain information the chief executive considers appropriate, including, for example, information about the licensing of food businesses, or enforcement, under this Act. (3) The chief executive may give the report when the chief executive considers it appropriate. 30 Local laws relating to purposes of Act A local government must not make a local law about a matter relating to the purposes of this Act unless it is necessary to make the law to carry out or give effect to the local government's administration or enforcement of the Act. 31 Fees payable to local governments (1) A local government may make a resolution or local law about the fees payable to it for providing a service or taking action under this Act. (2) For a fee for providing a service or taking action, a resolution or local law under subsection (1) may only prescribe a fee that is not more than the cost to the local government of providing the service or taking the action. Chapter 2 Offences relating to food Part 1 Serious offences relating to food 32 Handling of food in unsafe way A person must not handle food intended for sale in a way that the person knows, or reasonably ought to know, will make, or is likely to make, the food unsafe. Maximum penalty—1,000 penalty units or 2 years imprisonment. Note— This provision is an executive liability provision—see section 260. 33 Sale of unsafe food A person must not sell food that the person knows, or reasonably ought to know, is unsafe. Maximum penalty—1,000 penalty units or 2 years imprisonment. Note— This provision is an executive liability provision—see section 260. 34 False description of food (1) A person must not cause food intended for sale to be falsely described if the person knows, or reasonably ought to know, 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 2 years imprisonment. Note— This provision is an executive liability provision—see section 260. (2) A person must not sell food that the person knows, or reasonably ought to know, 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 2 years imprisonment. Note— This provision is an executive liability provision—see section 260. Part 2 Other offences relating to food 35 Handling and sale of unsafe food (1) A person must not handle food intended for sale in a way that will make, or is likely to make, the food unsafe. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. (2) A person must not sell food that is unsafe. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. 36 Handling and sale of unsuitable food (1) A person must not handle food intended for sale in a way that will make, or is likely to make, the food unsuitable. Maximum penalty—400 penalty units. Note— This provision is an executive liability provision—see section 260. (2) A person must not sell food that is unsuitable. Maximum penalty—400 penalty units. Note— This provision is an executive liability provision—see section 260. (3) For the purposes of this section, it is immaterial whether the food concerned is safe. 37 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. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. (2) A person must not, for the purpose of effecting or promoting the sale of 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. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. (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. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. (4) Neither subsection (2) nor (3) limits the generality of subsection (1). 38 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 make or be likely to make food unsafe; or (b) would put other equipment, or would be likely to put other equipment, in a condition that, if the other equipment were used for the purposes for which it was designed or intended to be used, it would make, or be likely to make, food unsafe. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. (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 make or be likely to make food unsafe. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. 39 Compliance with food standards code (1) A person must comply with a 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. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. (2) A person must not sell food that does not comply with a requirement of the food standards code that relates to the food. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. (3) A person must not sell or advertise food that is packaged or labelled in a way that contravenes a provision of the food standards code. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. (4) A person must not sell or advertise for sale food in a way that contravenes a provision of the food standards code. Maximum penalty—500 penalty units. Note— This provision is an executive liability provision—see section 260. 40 False descriptions of food (1) For this chapter, food that is falsely described includes food to which any 1 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, a 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) a 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 about 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 way in which it is packaged, labelled or offered for sale. (2) Without limiting the application of subsection (1) of this section to section 34(2), food is falsely described for the purposes of section 34(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. 41 Application of provisions outside the State For this chapter, it does not matter that the food concerned was sold or intended for sale outside the State. Part 3 Defences 42 Defence relating to publication of advertisements (1) In proceedings for an offence under this chapter in relation to the publication of an advertisement, it is a defence for a person to prove that— (a) the person carried on the business of publishing or arranging for the publication of advertisements; and (b) the person published or arranged for the publication of the advertisement concerned 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) is the proprietor of a food business or is otherwise engaged in the conduct of a food business for which the advertisement was published; or (c) had previously been informed in writing by the chief executive that publication of an advertisement of that type would constitute an offence. 43 Defence relating to food for export (1) In proceedings for an offence under this chapter involving a contravention of a provision of the food standards code in relation to food, it is a defence for a person to prove that— (a) the food concerned 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 the State. 44 Defence of due diligence (1) In proceedings for an offence under this chapter, it is a defence for a person to prove that the person 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 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 the State from another country; and (d) if the offence involves 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 a contravention of this Act. (3) 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 the person complied with— (a) an accredited food safety program; or (b) 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 way. (4) 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. 45 Disapplication of Criminal Code , ss 23 and 24 (1) The Criminal Code, section 23, does not apply to an offence under this chapter. (2) The Criminal Code, section 24, does not apply to an offence under part 2. 46 Defence relating to handling food In proceedings for an offence under section 32, 35(1) or 36(1), it is a defence for a person to prove 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 way that was likely to make it unsafe or unsuitable. 47 Defence relating to sale of unfit equipment or packaging or labelling material In proceedings for an offence under section 38(1) or (2), it is a defence for a person to prove that the person reasonably believed that the equipment or material concerned was not intended for use in connection with the handling of food. Chapter 3 Licences for particular food businesses Part 1 Preliminary 48 Meaning of licensable food business (1) Licensable food business means a food business that— (a) involves the manufacture of food; or (b) is carried on by an entity other than a non-profit organisation and involves the sale of unpackaged food by retail; or Examples— • a restaurant or delicatessen • a catering business • a takeaway pizza shop • a motel supplying meals with accommodation • a food business that involves selling hamburgers from a motor vehicle or unpackaged food from a food vending machine (c) is carried on by a non-profit organisation and involves the sale, on at least 12 days each financial year, of meals prepared by the organisation at a particular place. Examples— • a restaurant, open daily to the public, operated by a sporting club to raise revenue for the club • a non-profit organisation preparing and selling meals to homeless persons at a homeless persons' hostel • the preparation of meals by Meals on Wheels (2) However, a licensable food business does not include a food business that consists only of 1 or more of the following— (a) the production of primary produce under an accreditation granted under the Food Production (Safety) Act 2000, part 5; (b) the sale of unpackaged snack food; (c) the sale of whole fruit or vegetables; (d) the sale of seeds, spices, dried herbs, tea leaves, coffee beans or ground coffee; (e) the grinding of coffee beans; (f) the sale of drinks (other than fruit or vegetable juice processed at the place of sale) including, for example, tea, coffee, soft drinks and alcoholic drinks; (g) the sale of ice including flavoured ice; (h) the sale of meals by a non-profit organisation if— (i) the meal consists only of fruit, cereal, toast, or similar food; or (ii) the consumer of the meal helps to prepare it; (i) the sale of meals by a non-profit organisation that— (i) are pre-prepared by an entity other than the organisation; and (ii) are stored and heated or otherwise prepared by the organisation in accordance with directions of the meal's manufacturer; Example— the sale of a frozen meal, at the canteen of an independent school, after the meal is microwaved in accordance with instructions on the meal's packaging (j) the sale by a non-profit organisation of a meal prepared as part of an educational or training activity conducted by the organisation involving food preparation, hospitality or catering; (k) the sale of other food prescribed under a regulation. (3) In this section— snack food means any of the following food that is not potentially hazardous food— (a) biscuits or cakes; (b) confectionery, corn chips, potato chips or nuts; (c) dried or glazed fruit; (d) other food prescribed under a regulation. Part 2 Offences about carrying on licensable food businesses 49 Licence required to carry on licensable food business A person must not carry on a licensable food business unless the person holds a licence to carry on the business. Maximum penalty—1,000 penalty units. Note— This provision is an executive liability provision—see section 260. 50 Where licensee may carry on licensable food business (1) A licensee must not carry on a licensable food business from premises other than premises stated in the licence for carrying on the business. Maximum penalty—500 penalty units. Note— If a corporation commits an offence against this provision, each executive officer of the corporation may be taken, under section 260A, to have also committed the offence. (2) Despite subsection (1), if a licensee's food business under a licence involves off-site catering, the licensee may, to carry on the off-site catering, handle food at premises other than premises stated in the licence for carrying on the business. 51 Licensee to comply with conditions of licence (1) A licensee must not contravene a condition of the licence. Maximum penalty—200 penalty units. Note— If a corporation commits an offence against this provision, each executive officer of the corporation may be taken, under section 260A, to have also committed the offence. (2) The penalty under subsection (1) may be imposed whether or not the licence is suspended or cancelled because of the contravention. Part 3 Applications for, and issue of, licences Division 1 Applications for licence 52 Application (1) A person may apply for a licence to carry on a licensable food business. (2) The application must be made to— (a) for a food business that involves off-site catering—the local government for the area in which the applicant's principal place of business is located or proposed to be located; or (b) for another food business— (i) if the food business is to be carried on from fixed premises or temporary premises—the local government for the area in which the premises are, or will be, located; or (ii) if the food business is to be carried on from mobile premises—any local government for an area in which the business intends to operate. (3) The application must comply with section 85. 53 What the application must state (1) The application must state all of the following— (a) if the applicant is a corporation— (i) the corporation's name; and (ii) the names of its directors; and (iii) the address of its registered office under the Corporations Act; (b) if the applicant is an incorporated association— (i) the incorporated association's name; and (ii) the names of the members of its management committee; and (iii) the incorporated association's nominated address under the Associations Incorporation Act 1981; (c) for an applicant other than an entity mentioned in paragraph (a) or (b), the applicant's name and address; (d) for fixed premises, the address of the premises; (e) for mobile premises— (i) a description of the premises that includes— (A) if the premises are a vehicle that is required to be registered—the registration number of the vehicle; or (B) if the premises are a food vending machine—the serial number or other unique identifying number or mark of the food vending machine; and (ii) an address, in the area of the local government to which the application is made, at which the premises may be inspected for deciding the application; (f) for temporary premises, the proposed location of the premises; (g) a brief description of the food business proposed to be carried on under the licence; Examples— cafe, restaurant, smallgoods manufacturing, catering, takeaway pizza shop (h) if the food business involves off-site catering—the make and model of each food transport vehicle proposed to be used for the business, including the registration number if the vehicle is required to be registered; (i) if the applicant (or, if the applicant is a corporation or an incorporated association, an executive officer of the corporation or a member of the association's management committee) has a conviction for a relevant offence, other than a spent conviction—details of the offence and the circumstances of its commission; (j) the details, required in the approved form for the application, to enable the local government to decide whether— (i) the applicant is a suitable person to hold a licence; and (ii) the premises from which the food business is to be carried on are suitable for carrying on the business; (k) if known by the applicant, the name and contact details of the proposed food safety supervisor for the food business; Editor's note— See section 86 for requirement for licensee to have a food safety supervisor. (l) the term for which the licence is sought. (2) In this section— food transport vehicle, for a food business that involves off-site catering, means a vehicle, other than mobile premises, used to transport food for the business. 54 When food safety program is to accompany application (1) If, under section 99, the applicant must have an accredited food safety program for the food business, the application must be accompanied by the proposed food safety program for the business. (2) If the applicant is not an applicant mentioned in subsection (1), the application may be accompanied by a proposed food safety program for the food business. 55 Consideration of application The local government must consider the application and decide to grant, or refuse to grant, the application. 56 Criteria for granting application (1) The local government may grant the application only if satisfied of all of the following— (a) the applicant is a suitable person to hold a licence; (b) the premises from which the food business is to be carried on are suitable for carrying on the business; (c) if the application is accompanied by a proposed food safety program for the food business— (i) the proposed food safety program complies with section 98; and (ii) implementation of the program is reasonably likely to effectively control the food safety hazards of the business. (2) To decide if it is satisfied about the matters mentioned in subsection (1)(c), the local government must obtain and consider the written advice of an auditor about whether or not the auditor considers the food safety program complies with section 98. 57 Suitability of person to hold licence In deciding whether the applicant is a suitable person to hold a licence, the local government may have regard to the following matters— (a) whether the applicant has appropriate skills and knowledge to sell safe and suitable food under the licence; (b) whether the applicant has obtained, or can obtain, the services of other persons with appropriate skills and knowledge to sell safe and suitable food under the licence; (c) whether the applicant (or, if the applicant is a corporation or an incorporated association, an executive officer of the corporation or a member of the association's management committee) has a conviction for a relevant offence, other than a spent conviction; (d) whether the applicant (or, if the applicant is a corporation or an incorporated association, an executive officer of the corporation or a member of the association's management committee)— (i) held a licence under this Act, the Food Act 1981 or a corresponding law that was suspended or cancelled; or (ii) has been refused a licence under this Act, the Food Act 1981 or a corresponding law; (e) anything else relevant to the applicant's ability to handle or sell safe and suitable food. 58 Suitability of premises In deciding whether premises are suitable for carrying on a licensable food business, the local government— (a) may have regard to whether the premises comply with the food standards code, standard 3.2.3; and (b) must obtain and consider the written advice of an authorised person about whether or not the authorised person considers the premises are suitable for carrying on the business. 59 Inquiry about application (1) Before deciding the application, the local government— (a) may make inquiries to decide the suitability of— (i) the applicant to hold a licence; and (ii) the premises for carrying on a licensable food business; and (b) may, by notice given to the applicant, require the applicant to give the local government within the reasonable period of at least 30 days stated in the notice, further information or a document the local government reasonably requires to decide the application. (2) The applicant is taken to have withdrawn the application if, within the stated period, the applicant does not comply with a requirement under subsection (1)(b). (3) A notice under subsection (1)(b) must be given to the applicant within 30 days after the local government receives the application. (4) The information or document under subsection (1)(b) must, if the notice requires, be verified by statutory declaration. Division 2 Decisions on applications for licence 60 Decision on application (1) If the local government decides to grant the application, the local government must issue the licence to the applicant. (2) If the local government decides to refuse to grant the application, or impose conditions on the licence, the local government must as soon as practicable give the applicant an information notice for the decision. (3) This section does not apply to a decision to issue a provisional licence under section 64. 61 Failure to decide application (1) Subject to subsections (2) and (3), if the local government fails to decide the application within 30 days after its receipt, the failure is taken to be a decision by the local government to refuse to grant the application. (2) Subsection (3) applies if— (a) a person has made an application for a licence; and (b) the local government has, under section 59(1)(b), required the applicant to give the local government further information or a document. (3) The local government is taken to have refused to grant the application if the local government does not decide the application within 30 days after the local government receives the further information or document verified, if required, by statutory declaration. (4) If the application is refused under this section, the applicant is entitled to be given an information notice by the local government for the decision. (5) This section is subject to sections 62 and 66. Note— Under section 66, the period for consideration of the application may be extended to the end of the term of a provisional licence issued for the food business to which the application relates. 62 Further consideration of application (1) This section applies if the local government considers more time is needed to make a decision about the application because of the complexity of the matters that need to be considered in deciding the application. (2) The local government may at any time before the final consideration day give notice to the applicant that— (a) because of the complexity of the matters that need to be considered in deciding the application, the local government needs more time to decide the application; and Example— A local government might need more time to consider a proposed food safety program that accompanies the application. (b) the period within which the local government must decide the application is extended to a day (the extended day) that is 30 days after the final consideration day. (3) Also, the applicant and local government may at any time before the final consideration day agree in writing on a day (the agreed extended day) by which the application must be decided. (4) The local government is taken to have refused to grant the application if the local government does not decide the application by the latest of the following days— (a) if the local government has given a notice to the applicant under subsection (2)—the extended day; (b) if there is an agreement between the applicant and the local government under subsection (3)—the agreed extended day; (c) if both subsections (2) and (3) apply—the later of the extended day and the agreed extended day. (5) This section is subject to section 66. (6) In this section— final consideration day means the latest of the following days— (a) the day that is 30 days after receipt of the application; (b) if the local government has, under section 59(1)(b), required the applicant to give the local government further information or a document—the day that is 30 days after the local government receives the further information or document verified, if required, by statutory declaration. 63 Accreditation of food safety program on grant of application (1) This section applies if— (a) the application is accompanied by a proposed food safety program for the food business under the licence; and (b) the local government decides to grant the application. (2) The local government— (a) is taken to have accredited the food safety program when it decides to grant the application; and (b) must— (i) record on the program that it is accredited; and (ii) give the accredited program to the applicant; and (iii) keep a copy of the accredited program. Note— A food safety program is not taken to be accredited under this section on the issue of a provisional licence. Division 3 Provisional licences 64 Issue of provisional licence Before finally deciding an application for a licence, a local government may issue a provisional licence to the applicant if the local government— (a) is not fully satisfied about all the matters mentioned in section 56(1); and (b) reasonably believes it will grant the application, having regard to the application and any information or documents given to the local government for deciding the application. Example— A local government might decide to issue a provisional licence to an applicant if the local government considers— (a) the applicant is temporarily unable to comply with the applicant's proposed food safety program; or (b) the premises from which the food business under the proposed licence is to be carried on needs only minor alterations or repairs to equipment or fittings to make the premises suitable for carrying on the business. 65 When provisional licence ends The provisional licence ends when the earliest of the following happens— (a) the term of the provisional licence ends; (b) the local government— (i) grants the application for a licence under section 60(1); or (ii) gives the applicant an information notice under section 60(2) for a decision to refuse to grant the application. 66 Extension of period for consideration of application if provisional licence issued (1) This section applies if the local government would, apart from this section, be taken to have refused to grant the application for a licence under section 61 or 62 during the term of the provisional licence. (2) Despite section 61 or 62, the period for consideration of the application before it is taken to have been refused by the local government is extended to the end of the term of the provisional licence. Part 4 Term and conditions of licences 67 Term of licence other than provisional licence A licence other than a provisional licence remains in force, unless sooner cancelled or suspended, for the term of not more than 3 years decided by the local government that issues it. Examples of terms— • 1 week for a licence to sell unpackaged food at a music festival • 1 year for a licence for a new restaurant 68 Term of provisional licence (1) A provisional licence remains in force for the term of not more than 3 months decided by the local government that issues it. (2) If the initial term of a provisional licence is less than 3 months, the local government may, by notice given to the applicant, extend or further extend its term. (3) Subsection (2) does not allow the local government to extend or further extend the term of a provisional licence beyond the end of 3 months after it is issued. 69 Conditions of licence (1) A licence is subject to all of the following conditions— (a) the licensee must comply with this Act; (b) if, under section 99, the licensee must have an accredited food safety program for the food business under the licence— (i) the licensee must comply with the accredited program; and (ii) the licensee must allow an auditor to have reasonable access to the licensee's premises under the licence to conduct audits under this Act; Note— Under section 99, the holder of a provisional licence is not required to have an accredited food safety program. (c) the licensee must— (i) if the premises under the licence are fixed or temporary premises—display the licence, or a copy of the licence, in a prominent position at the premises so it is easily visible to persons at the premises; and Examples of displaying a licence in a prominent position— • displaying it at the customer counter of a restaurant • displaying it in a publicly accessible reception area of premises where food is manufactured (ii) if the premises under the licence are mobile premises—display details of the licence prescribed under a regulation in a prominent position on the premises so the details are easily visible to persons at the premises; and (iii) ensure the licensee's premises under the licence comply with the food standards code, standard 3.2.3; (d) the licensee must allow an authorised person to have reasonable access to the licensee's premises under the licence during normal business hours for the food business under the licence; (e) other reasonable conditions the local government considers appropriate for the food business under the licence and that are stated in the licence or of which the licensee is notified under subsection (3). (2) A condition may be imposed under subsection (1)(e)— (a) when the licence is issued, renewed, restored or amended; or (b) at another time if the local government considers it necessary to impose the condition to ensure food for sale is safe and suitable for human consumption. (3) If the local government decides to impose conditions on a licence, other than a provisional licence, under subsection (2)(b), the local government must as soon as practicable give the licensee an information notice for the decision. (4) Subsection (1)(c)(iii) applies to a provisional licence only to the extent the premises under the licence can reasonably comply with the food standards code, standard 3.2.3, having regard to the basis on which the provisional licence is issued. Part 5 Renewal, restoration or amendment of licences Division 1 Preliminary 70 Application of pt 5 This part does not apply to a provisional licence. 71 Notice of imminent expiry of licence The local government that issued a licence must give the licensee notice of its imminent expiry at least 60 days before the expiry. Division 2 Renewal, restoration and amendment Subdivision 1 Applications 72 Application for renewal (1) A licensee may apply to the local government that issued a licence for renewal of the licence. (2) The application must— (a) be made within 60 days before the licence ends; and (b) comply with section 85. (3) The local government must consider the application and decide to renew, or refuse to renew, the licence. (4) In deciding the application, the local government may have regard to— (a) the matters to which the local government may have regard in deciding whether an applicant for a licence is a suitable person to hold the licence and whether the premises under a licence are suitable for carrying on a licensable food business; and (b) the results of audits of an accredited food safety program for the food business under the licence; and (c) the results of inspections to monitor compliance with this Act during the current term of the licence. (5) If the local government decides to refuse to renew the licence, or impose conditions on the licence, the local government must as soon as practicable give the licensee an information notice for the decision. (6) A licence may be renewed by issuing another licence to replace it. 73 Application for restoration (1) A person who was a licensee may apply to the local government that issued a licence for restoration of the licence. (2) The application must— (a) be made within 30 days after the licence ends; and (b) comply with section 85. (3) The local government must consider the application and decide to restore, or refuse to restore, the licence. (4) In deciding the application, the local government may have regard to— (a) the matters to which the local government may have regard in deciding whether an applicant for a licence is a suitable person to hold the licence and whether premises under a licence are suitable for carrying on a licensable food business; and (b) the results of audits of an accredited food safety program for the food business under the licence; and (c) the results of inspections to monitor compliance with this Act during the last term of the licence. (5) If the local government decides to refuse to restore the licence, or impose conditions on the licence, the local government must as soon as practicable give the person an information notice for the decision. (6) An expired licence may be restored by issuing another licence to replace it. (7) Subsection (1) does not apply to a licence cancelled under section 82. 74 Application for amendment (1) A licensee may apply to the local government that issued a licence for an amendment of the licence. (2) The application must— (a) be accompanied by the licence; and (b) comply with section 85. (3) The local government must consider the application and decide to amend, or refuse to amend, the licence. (4) Without limiting subsection (1), the local government may amend a licence by changing the location of the premises from which the licensee proposes to carry on a licensable food business. (5) If the amendment relates to the premises covered by the licence, the local government may amend the licence only if satisfied on reasonable grounds that the premises are suitable for carrying on a licensable food business. (6) If the local government decides to refuse to amend the licence, the local government must as soon as practicable give the licensee— (a) the licence; and (b) an information notice for the decision. (7) If the local government decides to impose conditions on the licence, the local government must as soon as practicable give the licensee an information notice for the decision. (8) A licence may be amended by— (a) endorsing the existing licence with details of the amendment; or (b) cancelling the existing licence and issuing another licence containing the amendment. Subdivision 2 Inquiries about applications and continuation of licences 75 Inquiry about application (1) Before deciding an application under subdivision 1, the local government may, by notice given to the applicant, require the applicant to give the local government within the reasonable period of at least 30 days stated in the notice, further information or a document the local government reasonably requires to decide the application. (2) The applicant is taken to have withdrawn the application if, within the stated period, the applicant does not comply with the requirement. (3) The information or document under subsection (1) must, if the notice requires, be verified by statutory declaration. 76 Licence continues pending decision about renewal or restoration (1) If a licensee applies for renewal of a licence under section 72, the licence is taken to continue in force from the day it would, apart from this section, have ended until the application is decided under section 72 or taken to have been withdrawn under section 75(2). (2) If a person applies for restoration of a licence under section 73, the licence is taken to continue in force from the day it ended until the application is decided under section 73 or taken to have been withdrawn under section 75(2). (3) Despite subsections (1) and (2), if a local government decides to refuse to renew or restore the licence under section 72(3) or 73(3), the licence continues in force until the information notice for the decision is given to the applicant. (4) Subsections (1) and (2) do not apply if the licence is earlier suspended or cancelled. 77 Failure to decide application (1) Subject to subsections (2) and (3), if the local government fails to decide an application under subdivision 1 within 30 days after its receipt, the failure is taken to be a decision by the local government to refuse to renew, restore or amend the licence. (2) Subsection (3) applies if— (a) a person has made an application under subdivision 1; and (b) the local government has, under section 75(1), required the person to give the local government further information or a document. (3) The local government is taken to have refused to renew, restore or amend the licence if the local government does not decide the application within 30 days after the local government receives the further information or document verified, if required, by statutory declaration. (4) If the application is refused under this section, the applicant is entitled to be given an information notice by the local government for the decision. Part 6 Suspension or cancellation of licences 78 Grounds for suspension or cancellation (1) Each of the following is a ground for suspending or cancelling a licence— (a) the licensee is not, or is no longer, a suitable person to hold the licence; (b) if, under section 99, the licensee must have an accredited food sa