Tasmania: Food Act 2003 (Tas)

Food Act 2003 An Act to ensure the provision of food that is safe and fit for human consumption and to promote good nutrition and for related matters [Royal Assent 16 April 2003] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Food Act 2003 . 2. Commencement This Act commences on a day to be proclaimed. 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 jurisdiction of the Food Standards Code. 4. Interpretation (1) In this Act, unless the contrary intention appears – accredited laboratory means a laboratory accredited by the National Association of Testing Authorities Australia to carry out the relevant analysis; 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 review body means the Magistrates Court (Administrative Appeals Division); approved means approved by the Director of Public Health; approved form means a form that – (a) is approved by the Director of Public Health; or (b) contains information approved by the Director of Public Health; authorised officer means a person appointed under Division 3 of Part 8 ; court means the Magistrates Court; Director of Public Health means the person appointed as Director of Public Health under section 6 of the Public Health Act 1997 ; enforcement agency means the Director of Public Health or a council; 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; food has the meaning given by section 5 ; food business has the meaning given by section 6 ; food safety auditor means a person approved under Division 1 of Part 6A ; food safety program means a program that complies with the requirements specified in the regulations; 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 adopted or incorporated by the regulations; food transport vehicle means a vehicle used for the transport of food for sale (or of food ultimately intended for sale); 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; mobile structure, in relation to a food business, means a vehicle, trailer, cart, tent, stall, booth, pontoon, table, barbeque, pizza oven, or other mobile structure, that is not permanently fixed to the whole, or part, of a building, structure or land, in, at or from which food is, or is intended to be, handled or sold; occupier includes a person in charge of, or operating, any premises; 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 (ca) a mobile structure; 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 ; prohibition order means a prohibition order issued 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; public institution means a prison within the meaning of the Corrections Act 1997 , detention centre within the meaning of the Youth Justice Act 1997 , hospital, nursing home or any other health facility prescribed in the regulations; public notice means a notice published in the Gazette; recall order means an order under Part 3 requiring the recall or disposal, or both, of any food; record means a record of any kind, including a disk, tape or other article from which information is capable of being reproduced (with or without the aid of another article or device); regulations means the regulations made and in force under this Act; repealed Act means the Food Act 1998 ; sample means a sample taken under this Act; 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 or inmates in public institutions; or (p) sell for the purpose of resale; this jurisdiction means the State of Tasmania; 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. 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 other substance or thing declared to be food under a declaration in force under the Food Standards Australia New Zealand Act 1991 of the Commonwealth and prescribed by the regulations for the purposes of this paragraph – 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 (other than a business, enterprise or activity that is primary food production) 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, or on premises that are associated with the premises on which the food 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, raised, cultivated, picked, harvested, collected or caught; or (b) the packing or treating of food on premises that are associated with the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught if carried out by a person who has purchased the food, or who is carrying out the packing or treating under contract (not being a contract of employment); or (c) the sale or service of food directly to the public; or (d) any other food production activity that is prescribed by the regulations for the purposes of this subsection. (3) For the purposes of this section, premises are associated with each other if they form part of a single enterprise. 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. Application of Act to primary food production (1) Parts 5 and 7 do not apply to or in respect of primary food production. (2) The functions conferred on authorised officers by Parts 4 and 6 may only be exercised in respect of primary food production – (a) to enable the investigation and prosecution of offences against this Act; or (b) in connection with the making or enforcement of emergency orders under Part 3 . 11. Application of Act to water suppliers (1) The following provisions of this Act do not apply to or in respect of the supply of water for human consumption through a reticulated water system by a water supplier: (a) sections 13 , 15 , 16(1) , 17(1) , 18 , 19 , 20 and 21 (but only to the extent to which it requires compliance with the requirements of the Food Safety Standards); (b) Parts 5 and 7 . (2) In this section, water supplier means – (a) a body that is constituted by or under an Act and that has as its function, or as one of its functions, the supply of water for human consumption; or (b) a person that 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. Act binds Crown This Act binds the Crown in right of the State and also, so far as the legislative power of Parliament permits, in all its other capacities. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both; or (b) a body corporate, a fine not exceeding 5 000 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 750 penalty units; or (b) a body corporate, a fine not exceeding 3 750 penalty units. 14. Sale of unsafe food (1) A person must not sell food that the person knows is unsafe. Penalty: In the case of – (a) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both; or (b) a body corporate, a fine not exceeding 5 000 penalty units. (2) A person must not sell food that the person ought reasonably to know is unsafe. Penalty: In the case of – (a) an individual, a fine not exceeding 750 penalty units; or (b) a body corporate, a fine not exceeding 3 750 penalty units. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both; or (b) a body corporate, a fine not exceeding 5 000 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 750 penalty units; or (b) a body corporate, a fine not exceeding 3 750 penalty units. (3) A person must not sell food that the person knows – (a) is falsely described; and (b) will cause, or is likely to cause, physical harm to a consumer of the food who relies on the description. Penalty: In the case of – (a) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both; or (b) a body corporate, a fine not exceeding 5 000 penalty units. (4) A person must not sell food that the person ought reasonably to know – (a) is falsely described; and (b) is likely to cause physical harm to a consumer of the food who relies on the description. Penalty: In the case of – (a) an individual, a fine not exceeding 750 penalty units; or (b) a body corporate, a fine not exceeding 3 750 penalty units. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (2) A person must not sell food that is unsafe. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 400 penalty units; or (b) a body corporate, a fine not exceeding 2 000 penalty units. (2) A person must not sell food that is unsuitable. Penalty: In the case of – (a) an individual, a fine not exceeding 400 penalty units; or (b) a body corporate, a fine not exceeding 2 000 penalty units. (3) For the purposes of this section, it is immaterial whether the food concerned is safe. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (4) Nothing in subsection (2) or (3) limits the generality of subsection (1) . 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (2) A person must not sell any food that does not comply with any requirement of the Food Standards Code that relates to the food. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (3) A person must not sell or advertise any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. (4) A person must not sell or advertise for sale any food in a manner that contravenes a provision of the Food Standards Code. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 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 15(3) or (4) , food is falsely described for the purposes of section 15(3) or (4) 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 jurisdiction 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 jurisdiction. 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 Director of Public Health, a council or an authorised officer 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 jurisdiction. 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 the jurisdiction 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. (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 subsection (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 in respect of handling food In any proceedings for an offence under section 13 , section 16(1) or section 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. 28. 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. 29. Defence of mistaken but reasonable belief not available In any proceedings for an offence under Division 2 , it is no defence that the person had a mistaken but reasonable belief as to the facts that constituted the offence. 30. Onus on person to prove certain statements about food (1) This section applies to a proceeding for an offence under this Part in which it is alleged that a statement on a package of food, or in an advertisement about food, that relates to the origin or composition of the food, or its therapeutic or nutritive properties, caused the food to be falsely described. (2) If a person charged with an offence under this Part was responsible for making the statement, the onus of proving the correctness of the statement is on the person. 31. Alternative verdicts for serious food offences (1) If, on the trial of a person charged with an offence against section 13 , the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 16(1) , the trier of fact may find the person not guilty of the offence charged but guilty of an offence against section 16(1) , and the person is liable to punishment accordingly. (2) If, on the trial of a person charged with an offence against section 14 , the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 16(2) , the trier of fact may find the person not guilty of the offence charged but guilty of an offence against section 16(2) , and the person is liable to punishment accordingly. PART 3 - Emergency powers 32. Interpretation: Part 3 In this Part, relevant authority means the Director of Public Health, a council or an authorised officer. 33. Making of order An order may be made under this Part by a relevant authority if the relevant 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. 34. Nature of order (1) 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 relevant 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 or other primary produce intended to be used for human consumption; (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 or other primary produce intended to be used for human consumption 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. (2) An order under this Part may be varied or revoked by the relevant authority who made the order in the same manner as the order was made. 35. 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 relevant authority who made the recall order 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 relevant authority in connection with the recall order and any such cost is taken to be a debt due to the relevant authority who made the recall order from that person. (4) In any proceedings for the recovery of the debt, a certificate signed by the relevant authority who made the recall order stating the amount of any costs and the manner in which they were incurred is evidence of the matters certified. 36. 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 intended to be bound by the order must, as soon as practicable after the order is made – (a) be published in a newspaper that, in the opinion of the relevant authority who made the order, will be most likely to bring the order to the attention of the persons intended to be bound by it; or (b) be served on each of those 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. 37. 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 relevant authority who made the order 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 relevant authority who made the order is to pay such compensation to the applicant as is just and reasonable. (3) The relevant authority who made the order 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 relevant authority who made the order has not determined an application for compensation under this section within 28 days of receiving the application, the relevant authority is taken to have refused to pay compensation. (5) An applicant for the payment of compensation under this section who is dissatisfied with a determination by the relevant authority who made the order as to the refusal to pay compensation or as to the amount of compensation may apply to the appropriate review body for a review of the determination – (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 of the 28-day period referred to in that subsection. 38. 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. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 39. 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 40. 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 with 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 to 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) 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 are being complied with, demand, select and obtain samples of any food; (g) 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; (h) 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; (i) seize and retain, or issue a seizure order in respect of, any thing that the authorised officer reasonably believes has been used in, or may be used as evidence of, a contravention of this Act; (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 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 to ascertain whether an offence under this Act is being or has been committed; (r) exercise any other power prescribed by or under the regulations. (2) This section does not authorise entry into any part of premises that is being used solely for residential purposes, except – (a) with the consent of the occupier of the premises; or (b) under the authority of a search warrant; or (c) if that part of the premises is being used for the preparation of meals provided with paid accommodation. (3) A person is not excused from a requirement under this section to provide information or answer questions, or to produce any record, document or thing, on the ground that the information, answer, record, document or thing might incriminate the person or make the person liable to a penalty. (4) However, any information or answer furnished, or record, document or thing produced, by a natural person in compliance with such a requirement is not admissible in evidence against the person in criminal proceedings other than proceedings for an offence against section 42 , 43 or 45 . 41. Search warrants (1) An authorised officer may apply to a justice of the peace for a search warrant if the authorised officer has reasonable grounds to believe that a provision of this Act has been, is being or is about to be contravened on premises. (2) A justice of the peace to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant. (3) An authorised officer may execute a search warrant using such assistance as the authorised officer considers necessary. (4) A warrant issued under this section may be made subject to any conditions that the justice of the peace considers appropriate. (5) Subject to subsection (4) , a warrant issued under this section authorises the authorised officer named in the warrant to enter and search the premises specified in the warrant and exercise such of the powers specified in section 40 as are not expressly excluded by the justice of the peace who issued the warrant. (6) Schedule 1 has effect with respect to a warrant issued under this section. (7) This section does not limit the operation of section 40(1) . 42. Failure to comply with requirements of authorised officers A person must not, without reasonable excuse, fail to comply with a requirement of an authorised officer duly made under this Division. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 43. False information A person must not, in connection with a requirement or direction under this Act, provide any information or answer or produce any record, document or thing that the person knows is false or misleading in a material particular. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 44. 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 this Division. Penalty: In the case of – (a) an individual, a fine not exceeding 500 penalty units; or (b) a body corporate, a fine not exceeding 2 500 penalty units. 45. 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. Penalty: Fine not exceeding 500 penalty units. (2) A person must not impersonate an authorised officer. Penalty: Fine not exceeding 100 penalty units. (3) A person must not threaten, intimidate or assault an authorised officer in the exercise of the authorised officer's functions under this Act. Penalty: Fine not exceeding 500 penalty units. Division 2 - Items seized by authorised officers 46. 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. 47. 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 54 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. 48. 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. 49. Return of seized item If, before any item seized under this Part is forfeited to the Crown or a council under this Division, an authorised officer becomes satisfied that there has been no contravention of this Act of which the item is evidence, the authorised officer 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 authorised officer to be entitled to it. 50. Forfeiture of item (1) An item seized under this Part is forfeited to the Crown or a council – (a) on the expiration of the period allowed by section 54 for the making of an application for an order disallowing the seizure if the item has not been dealt with under section 49 and no application under section 54 has been made within that period; or (b) if an application for an order disallowing the seizure has been made under section 54 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 was refused or withdrawn. (2) An item forfeited under this section may be destroyed, sold or otherwise disposed of as the enforcement agency concerned may determine. 51. 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. 52. 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 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. 53. Compensation to be paid in certain circumstances (1) A person may apply for compensation for an item seized under this Part. (2) The enforcement agency concerned is 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 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 as to the payment of such compensation may apply to the appropriate review body for a review of the determination within 10 days after the date on which notification of the determination was received. 54. 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 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. 55. 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 54 . 56. Order for return of seized item The court, on the hearing of an application made under section 54 , 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 was being or had been or was about to be 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. 57. 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) The award of costs with respect to the hearing of the application lies in the discretion of the court. (3) 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. 58. Adjournment pending hearing of other proceedings If on the hearing of an application made under section 54 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 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 59. 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; or (c) in relation to any premises used in connection with the handling of food intended for sale or any equipment or food transport vehicle, any food safety program is not being implemented adequately by a food business; or (d) any provision of the Food Standards Code is being contravened in relation to the handling of food intended for sale in any premises or in any food transport vehicle used by a food business in connection with the handling of food intended for sale – the authorised officer may serve an improvement notice on the proprietor of the food business in accordance with this Part. 60. Improvement notice (1) An improvement notice is to take the form of an order that – (a) premises, equipment or a food transport vehicle be put into a clean and sanitary condition, or be repaired, to the satisfaction of an authorised officer; or (b) equipment or a vehicle be replaced; or (c) a food safety program be prepared; or (d) a food safety program be revised; or (e) in relation to the handling of food intended for sale in premises or in a food transport vehicle, measures be taken to implement the provisions of any relevant food safety program; or (f) other action be taken to ensure compliance with the provisions of the Food Standards Code – within a period of 24 hours (or such longer period as is specified in the notice) after the service of the notice on the proprietor of the food business. (2) Before the end of the period specified in the improvement notice, an authorised officer may, on his or her own motion or on the application of the proprietor of the food business, extend the period within which the proprietor of the food business is to take action in accordance with the notice. (3) An improvement notice may include ancillary or incidental directions. (4) An improvement notice is to state that it is issued under this section. 61. Compliance with improvement notice (1) If an improvement notice is complied with, an authorised officer is to note the date of compliance on a copy of the notice. (2) An authorised officer must give a copy of an improvement notice, noted in accordance with this section, to the person on whom the improvement notice was served if requested to do so by the person. 62. Prohibition order (1) If an authorised officer believes, on reasonable grounds – (a) that any of the circumstances specified in section 59 exist; and (b) that – (i) the proprietor of the food business has not complied with an improvement notice within the time required for compliance; or (ii) the issue of a prohibition order is necessary to prevent or mitigate a serious danger to public health – the authorised officer may serve a prohibition order on the proprietor of the food business in accordance with this Part. (2) A prohibition order is to take the form of an order that – (a) no food intended for sale is to be handled in specified premises or a specified part of specified premises; or (b) no food intended for sale is to be conveyed in a specified vehicle; or (c) specified equipment is not to be used in connection with food intended for sale; or (d) no food intended for sale is to be handled by a food business in a specified way or for a specified purpose; or (e) prohibits other action being taken – until the proprietor of the food business has been given a certificate of clearance stating that the premises, part of the premises, vehicle or equipment may be used for the handling or conveyance of food intended for sale, or for use in connection with such food, or that the food may be handled in the specified way or for the specified purpose, as the case may be. (3) A prohibition order may include ancillary or incidental directions. (4) A prohibition order is to state that it is issued under this section. (5) The authorised officer must give a certificate of clearance if, after an inspection of the premises, part of the premises, vehicle or equipment, or the way of handling food, specified in the prohibition order, the authorised officer or person finds that – (a) the premises, part of the premises, vehicle or equipment, or the handling of food by the food business in the specified way or for the specified purpose, is not a serious danger to public health; and (b) the person on whom the prohibition order was served has complied with the prohibition order and any improvement notices served on the person. 63. Scope of notices and orders An improvement notice or a prohibition order may be issued with respect to any one or more of the following: