Tasmania: Primary Produce Safety Act 2011 (Tas)

Primary Produce Safety Act 2011 An Act to provide for food safety matters relating to the production of primary produce and for other purposes [Royal Assent 25 October 2011] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Primary Produce Safety Act 2011 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Object of Act The objects of this Act include – (a) to provide for the application in Tasmania of the Food Standards Code as it relates to primary production activities; and (b) to develop food safety schemes for primary industries that reduce risks to consumers associated with unsafe or unsuitable primary produce; and (c) to promote consumer confidence in the safety and integrity of Tasmanian primary produce; and (d) to facilitate the trade of Tasmanian primary produce by ensuring it meets national and international food safety standards. 4. Interpretation (1) In this Act, unless the contrary intention appears – abattoir animal means an animal that is not living in the wild that is – (a) a bovine animal; or (b) an equine animal; or (c) a sheep, pig, goat or deer; or (d) an animal, other than poultry or seafood, that is prescribed by the regulations; accreditation means an accreditation in force under Part 4 and includes a temporary accreditation; accredited producer means a person holding a valid accreditation under Part 4 ; animal means any member of the animal kingdom (other than a human), whether alive or dead, including – (a) any amphibian, bird, crustacean, fish, insect, mammal, mollusc, and reptile; and (b) any egg, embryo, ova or sperm of such a member of the animal kingdom; and (c) any carcass or part of any carcass of such a member of the animal kingdom; approved food safety auditor means a food safety auditor approved under Part 11 ; approved food safety program means a food safety program approved for an accreditation under Part 4 ; audit includes inspection; authorised officer means a person appointed to be an authorised officer under section 35 , and includes the Chief Inspector; body corporate includes – (a) a body corporate established under a food safety scheme pursuant to section 9 ; and (b) a body corporate established under another enactment or in the exercise of prerogative rights of the Crown to administer or control any department, business, undertaking or public institution on behalf of the State; check audit means an audit referred to in section 57 ; Chief Inspector means the person appointed to be, or acting in the office of, the Chief Inspector of Primary Produce Safety and includes a body corporate that has been designated any functions and powers of the Chief Inspector under a food safety scheme; compliance notice means a compliance notice referred to in section 49 ; corresponding law means a law of the Commonwealth or another State or a Territory relating to food safety that corresponds with – (a) this Act or an Act repealed by this Act; or (b) the Food Act 2003 ; court means the Magistrates Court; dairy primary production means the production of milk or colostrum for further processing for human consumption and includes the keeping, grazing, feeding and milking of animals and the storage of milk on the premises at which the animals were milked; dairy processing includes the manufacture of dairy products; dairy products includes – (a) milk; and (b) colostrum; and (c) liquid milk products; and (d) cream and thickened cream; and (e) butter, butter concentrate, buttermilk, concentrated buttermilk, dairy blend, ghee and anhydrous milk fat (butter oil); and (f) casein, caseinate and cheese; and (g) whey, whey cream and concentrated whey cream; and (h) cultured milk and yoghurt; and (i) ice-cream and ice-cream mix; and (j) buttermilk powder, lactose powder, milk sugar, powdered milk, skim milk powder, whey powder, milk protein powder and other milk concentrates; and (k) any other product prescribed by the regulations; dairy transport business means a business, enterprise or activity involving the collection and transport of milk or colostrum from premises where dairy primary production is carried out to premises where dairy processing is carried out, or the transport of bulk milk or dairy products between premises where dairy processing is carried out; diseased means infected with, or affected by, a condition, or in a state, that is prescribed by the regulations; egg means an egg from any avian (bird) species; food has the same meaning as in the Food Act 2003 ; food safety auditor means a person approved as such under Part 11 ; food safety program – see Part 10 ; food safety scheme – see Part 3 ; Food Standards Code means the Australia New Zealand Food Standards Code as defined in the Food Standards Australia New Zealand Act 1991 of the Commonwealth; game means any animal living in the wild but does not include seafood; meat means the whole or any part of the carcass or offal of any slaughtered abattoir animal, poultry or game that is intended for human consumption and is raw, but does not include seafood or a product produced from seafood; meat processing means – (a) the slaughter of abattoir animals to produce meat or meat products; and (b) the slaughter of poultry to produce meat or meat products; and (c) the production of meat or meat products from slaughtered abattoir animals or poultry, or from game slaughtered in the wild; and (d) the storage, transportation and packaging of any meat or meat products produced by an activity referred to in paragraph (a) , (b) or (c) ; and (e) any other activity that is prescribed by the regulations; meat product means a product – (a) that wholly or partially is derived from meat; and (b) that is intended for human consumption – and includes any product which complies with paragraphs (a) and (b) and which is partially processed, prepared for further processing or fully processed; offal means the brain, thymus gland, pancreas gland, liver, spleen, kidney, heart, lung, intestine, tongue, blood, head or tail of any slaughtered animal or any part of the body of any slaughtered animal which is removed in the course of dressing the body; pet means any carnivorous animal kept by a person; pet food means any part of, or product that results from the processing of any part of, the body of any animal, being part or product produced for consumption by pets; pet food production includes the production, storage, transportation and packaging of pet food; poultry means a domesticated bird; premises includes – (a) land (whether or not vacant); and (b) the whole or any part of a building, tent, stall or other structure (whether of a permanent or temporary nature); and (c) a pontoon; and (d) a vehicle (other than a food transport vehicle while it is engaged in the transport of food); and (e) an area of water used in the production, storage or growing of seafood; primary produce includes any of the following: (a) an animal, plant or other organism, or part of an animal, plant or other organism, intended for consumption by humans; (b) any food produced by any primary production activity; (c) any pet food produced by any primary production activity; (d) any other thing that is prescribed by the regulations; primary produce business means a business, enterprise or activity comprising one or more primary production activities, regardless of whether the business, enterprise or activity concerned is of a commercial, charitable or community nature; primary production activity – see section 5 ; producer means a person who engages in one or more primary production activities and includes a proprietor of a primary produce business; prohibition order means a prohibition order referred to in section 50 ; proprietor of a primary produce business means – (a) the person carrying on the primary produce business; or (b) if that person cannot be identified, the person in charge of the primary produce business; regulations means regulations made under this Act; seafood means all aquatic animals intended for human consumption, but excludes amphibians, mammals and reptiles; Secretary means the Secretary of the Department; slaughter means to kill any animal for the production of meat, meat products or pet food; supplier means any person who engages in the supply of primary produce and may include a producer; supply includes the following: (a) deliver, sell, trade, give or distribute, whether for valuable consideration or not; (b) offer or agree to supply; (c) cause or permit to supply; (d) hold in possession for the purpose of supply; (e) produce or pack for the purpose of supply; unsafe for human consumption, in relation to primary produce – see section 23 ; unsuitable for human consumption, in relation to primary produce – see section 24 ; vehicle means any means of transport, whether self-propelled or not, and whether used on land or sea or in the air. (2) For the purposes of this Act, premises are associated with each other if they are occupied or used by the same primary produce business. 5. Meaning of primary production activity (1) In this Act – primary production activity means the production and processing of primary produce and includes the following: (a) the growing, raising, cultivation, picking, harvesting, collection or catching of primary produce; (b) the sorting or grading of primary produce on the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught, or on premises that are associated with those premises; (c) the treating, freezing, packing, refrigeration, storage or washing of primary produce on the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught, or on premises that are associated with those premises; (d) the shucking of molluscs; (e) the transportation or delivery of primary produce on, from or between premises on which it was grown, raised, cultivated, picked, harvested, collected or caught; (f) the management, breeding, transportation and supply of live animals for the production of primary produce; (g) meat processing; (h) dairy primary production, dairy processing or carrying on a dairy transport business; (i) pet food production; (j) any other activity that is prescribed by the regulations. (2) However, primary production activity does not include – (a) the sale or service of food by way of retail; or (b) cooking or handling food in the course of preparing a meal for a person; or (c) any other activity that is prescribed by the regulations. (3) In this section – treating of primary produce means – (a) enhancing the appearance of the primary produce including, for example, waxing, oiling or colouring the produce, without substantially transforming its nature; or (b) dealing with the primary produce solely in order to eliminate or control pathogenic organisms, toxins and contaminants in the produce, or to ripen it. 6. Interaction with other Acts This Act is in addition to and does not limit or derogate from any other Act. 7. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Administration 8. Chief Inspector of Primary Produce Safety (1) The Secretary may appoint a State Service officer or State Service employee employed in the Department who is suitably qualified to be Chief Inspector of Primary Produce Safety. (2) The Secretary may appoint a State Service officer or State Service employee employed in the Department who is suitably qualified to act in the office of Chief Inspector of Primary Produce Safety. (3) A person appointed under subsection (1) or (2) may hold, or act in, the office of Chief Inspector in conjunction with State Service employment. (4) The Chief Inspector may by an authority in writing authorise a State Service officer or State Service employee to exercise such of the powers conferred on the Chief Inspector as may be specified in the authority, and anything done in pursuance of such an authority has the like effect as if it were done by the Chief Inspector. (5) A food safety scheme may designate, for the purposes of the scheme, any or all the powers and functions of the Chief Inspector under this Act to a body corporate. (6) The Chief Inspector is an authorised officer for the purposes of this Act and may exercise the powers and functions of an authorised officer in addition to the powers and functions of Chief Inspector. PART 3 - Food Safety Schemes 9. Food safety schemes (1) The regulations may establish a food safety scheme. (2) Subject to section 10 , a food safety scheme may do any or all of the following: (a) specify the primary produce or class of primary produce and the primary production activities or class of primary production activities to which the scheme applies; (b) make provision for any matter relating to how and where any primary production activity under the scheme is to be carried out including, for example, matters relating to the location, design, condition and operation of any premises, vehicle or equipment used in the primary production activity; (c) prohibit any primary production activity or class of primary production activities; (d) specify circumstances in which a person who engages or proposes to engage in any primary production activity under the scheme must be accredited; (e) make provision for any matter relating to the accreditation of persons who engage or propose to engage in any primary production activity under the scheme; (f) designate for the purposes of the scheme the powers and functions of the Chief Inspector under this Act (including any powers of delegation) to a body corporate; (g) establish a body corporate to perform the role of Chief Inspector under the scheme and make provision relating to the body corporate, including provision for the membership of the body corporate, conditions of membership, procedural matters, functions and powers, delegation, financial accounting and auditing and reporting to the Minister; (h) specify the circumstances in which a person who engages or proposes to engage in any primary production activity under the scheme must prepare and implement a food safety program; (i) make provision for any matter relating to the content, preparation, implementation and auditing of food safety programs required under the scheme and the approval of such programs by the Chief Inspector; (j) make provision for any matter relating to the classification, marking or identification of primary produce under the scheme; (k) make provision for any matter relating to the wholesomeness, sanitation, hygiene and prevention of disease or pathogens in primary produce under the scheme, and the blending or mixing of primary produce under the scheme with any other thing; (l) make provision for any matter relating to the qualifications, skills or expertise required of a person to engage in any primary production activity, or to handle primary produce, under the scheme; (m) make provision for any matter relating to auditing requirements under the scheme including, for example, the qualifications, skills or expertise required of a person to conduct audits under the scheme; (n) make provision for any matter relating to the recall of primary produce under the scheme; (o) make provision for any matter relating to the monitoring and record keeping by persons who engage in any primary production activity under the scheme, and the giving of information and returns relating to food safety matters by such persons; (p) make provision for any matter relating to the issuing of any direction, warning or notice required to deal with any risk to public safety in relation to any primary produce or primary production activity under the scheme; (q) make provision for any matter relating to the levy or payment of fees and charges under the scheme; (r) make provision for any matter relating to the establishment of a public register of persons holding an accreditation under the scheme; (s) make provision for the adoption of any program, code, standards or guidelines relevant to any primary produce or primary production activity under the scheme; (t) make provision for any matters relating to compliance and enforcement in respect of the scheme including the creation of offence provisions; (u) make provision for exemptions to specific persons or classes of persons from some or all of the requirements of the scheme relating to any primary produce or primary production activity under the scheme; (v) make provision for any matter relating to the review or revision of the scheme; (w) make provision for any other matter relating to the safety or suitability of any primary produce or primary production activity under the scheme. (3) A food safety scheme may provide that contravention of, or failure to comply with, the scheme or a provision of the scheme is an offence punishable by a fine – (a) in the case of a body corporate, not exceeding 250 penalty units; or (b) in the case of an individual, not exceeding 50 penalty units. 10. Contents of food safety schemes Without limiting section 9 , a food safety scheme must, as a minimum – (a) state the primary produce or class of primary produce and the primary production activities or class of primary production activities to which the scheme applies; and (b) if a body corporate is to perform the role of Chief Inspector under the scheme, designate, for the purposes of the scheme, all the requisite functions and powers of the Chief Inspector to be performed and exercised by the body corporate; and (c) state who must be accredited under the scheme and who must comply with the scheme; and (d) state who must prepare and implement a food safety program under the scheme; and (e) state the auditing requirements under the scheme; and (f) establish a public register of persons holding an accreditation under the scheme. PART 4 - Accreditation 11. Authority given by accreditation (1) An accreditation granted to a person authorises the person to engage in the primary production activities – (a) stated in the accreditation; and (b) on the conditions stated in the accreditation and in accordance with this Act. (2) The accreditation does not authorise the accredited producer to do anything prohibited under another Act. 12. Application for accreditation (1) An application for an accreditation – (a) must be made to the Chief Inspector; and (b) must conform to the requirements of the Chief Inspector about its form, contents and the manner in which it is made; and (c) must be accompanied by the fee prescribed in the regulations. (2) If the applicant is required to prepare and implement a food safety program under a food safety scheme, the application must set out the details of the food safety program. (3) The Chief Inspector may, by written notice, require the applicant – (a) to give the Chief Inspector further information, documents or records relevant to the application; or (b) to allow persons authorised by the Chief Inspector to inspect premises, vehicles, plant or equipment proposed to be used by the applicant in connection with the activities proposed to be authorised by the accreditation. (4) The Chief Inspector may refuse the application if the applicant does not comply with a requirement under subsection (3) . (5) The applicant may, with the approval of the Chief Inspector or at the request of the Chief Inspector, amend the application before the Chief Inspector has finished considering it. 13. Temporary accreditation (1) The Chief Inspector may, pending determination of an application for accreditation, grant a temporary accreditation under this section. (2) The temporary accreditation remains in force until whichever of the following occurs first: (a) the end of the period stated in the temporary accreditation; (b) the accreditation applied for under section 12 is granted or the application is refused. (3) The period referred to in subsection (2) must not exceed 3 months after the grant of the temporary accreditation. (4) Except where the contrary intention appears, a reference in this Act to an accreditation includes a reference to a temporary accreditation. 14. Deciding an application for accreditation (1) The Chief Inspector must consider an application for accreditation made in accordance with section 12 and either grant the accreditation with conditions or refuse the application. (2) The Chief Inspector may grant the accreditation sought by the applicant only if satisfied – (a) that the applicant is a suitable person to hold such accreditation; and (b) if the applicant is a body corporate, that each director of the body corporate is a suitable person to be the director of a body corporate that holds such an accreditation; and (c) that the applicant satisfies any requirements for accreditation set out in the food safety scheme applicable to the primary production activity the applicant proposes to engage in. (3) For the purposes of determining the suitability of a person under subsection (2) , the Chief Inspector may, without limitation, take into account – (a) any offence committed by the person against – (i) this Act or an Act repealed by this Act; or (ii) the Food Act 2003 ; or (iii) a prescribed Act; or (iv) a corresponding law; and (b) any offence of dishonesty committed by the person. (4) If the applicant is required to prepare and implement a food safety program under a food safety scheme, the Chief Inspector may grant the accreditation only if satisfied that the food safety program complies with the relevant food safety scheme. (5) If the Chief Inspector grants an accreditation in circumstances where subsection (4) applies, the applicant's food safety program becomes the approved food safety program for the accreditation. 15. Conditions of accreditation (1) The Chief Inspector may impose any conditions on an accreditation that are reasonable and relevant, having regard to the food safety scheme applicable to the primary production activity the accredited producer is to engage in. (2) Without limiting subsection (1) , an accreditation is subject to the following conditions: (a) the accredited producer must – (i) comply with the relevant food safety scheme in all respects; and (ii) if there is an approved food safety program for the accreditation, comply with the food safety program in all respects; and (iii) engage in the primary production activities authorised by the accreditation only at the premises or place stated in the accreditation; and (iv) allow a food safety auditor to enter any premises or place stated in the accreditation to conduct audits under this Act; (b) the accredited producer must pay, in accordance with the requirements of the Chief Inspector, the reasonable costs and expenses associated with audits conducted under this Act. (3) An accredited producer who contravenes a condition of the accreditation is guilty of an offence. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. 16. Periodic fees and returns (1) For each period prescribed in the regulations, an accredited producer must, not later than the date prescribed in the regulations – (a) pay to the Chief Inspector the fee prescribed in the regulations; and (b) lodge with the Chief Inspector a return that conforms to the requirements of the Chief Inspector about its form, contents and the manner in which it is made. (2) If an accredited producer fails to pay a fee or lodge a return in accordance with this section, the Chief Inspector may, by written notice, require the producer to make good the default and, in addition, to pay to the Chief Inspector the amount prescribed in the regulations as a penalty for default. (3) If an accredited producer fails to comply with the notice within 14 days after the giving of the notice, the accreditation is suspended until the notice is complied with. (4) If an accredited producer fails to comply with the notice within 6 months after the giving of the notice, the accreditation is cancelled. (5) The Chief Inspector must cause written notice of the suspension or cancellation to be given to the producer. 17. Variation of accreditation (1) The Chief Inspector may, by written notice to the accredited producer – (a) impose further conditions on the accreditation; and (b) vary or revoke conditions of the accreditation; and (c) approve a food safety program for the accreditation; and (d) vary an approved food safety program for the accreditation. (2) The Chief Inspector's power under this section may be exercised on the Chief Inspector's own initiative or on application by the accredited producer. (3) The imposition or variation of a condition, or the approval or variation of a food safety program, will not, except with the agreement of the accredited producer, take effect until 6 months after the giving of the notice under subsection (1) . (4) An accredited producer must, at the request of the Chief Inspector and within the period stated by the Chief Inspector, return an accreditation to the Chief Inspector for the purposes of recording any action under this section. Penalty: Fine not exceeding 10 penalty units. 18. Application for variation of accreditation (1) An application by an accredited producer referred to in section 17(2) – (a) must be made to the Chief Inspector; and (b) must conform to the requirements of the Chief Inspector about its form, contents and the manner in which it is made; and (c) must be accompanied by the fee prescribed in the regulations. (2) The Chief Inspector may, by written notice, require the applicant – (a) to give the Chief Inspector further information, documents or records relevant to the application; or (b) to allow persons authorised by the Chief Inspector to inspect premises, vehicles, plant or equipment proposed to be used by the applicant in connection with activities authorised by the accreditation. (3) The Chief Inspector may refuse the application if the applicant does not comply with a requirement under subsection (2) . (4) The applicant may, with the Chief Inspector's approval or at the Chief Inspector's request, amend the application before the Chief Inspector has finished considering it. 19. Transfer of accreditation (1) Subject to this section and any condition of the accreditation excluding or limiting the right of transfer under this section, the Chief Inspector may approve or refuse an application for the transfer of an accreditation under this section. (2) An application for the transfer of an accreditation – (a) must be made to the Chief Inspector by both parties to the transfer; and (b) must conform to the requirements of the Chief Inspector about its form, contents and the manner in which it is made; and (c) must be accompanied by the fee prescribed in the regulations. (3) The Chief Inspector may approve the transfer of an accreditation only if satisfied – (a) that the proposed transferee is a suitable person to hold such an accreditation; or (b) if the proposed transferee is a body corporate, that each director of the body corporate is a suitable person to be the director of a body corporate that holds such an accreditation; or (c) that the proposed transferee has the capacity, or has made or proposes to make appropriate arrangements, to satisfy any requirements for accreditation set out in the food safety scheme applicable to the primary production activity the proposed transferee is to engage in. (4) For the purposes of determining the suitability of a person under subsection (3) , the Chief Inspector may, without limitation, take into account – (a) any offence committed by the person against – (i) this Act or an Act repealed by this Act; or (ii) the Food Act 2003 ; or (iii) a prescribed Act; or (iv) a corresponding law; and (b) any offence of dishonesty committed by the person. 20. Suspension or revocation of accreditation (1) The Chief Inspector may by written notice suspend or revoke an accreditation if satisfied that – (a) the accreditation was obtained improperly; or (b) the accredited producer – (i) has ceased to engage in the primary production activity authorised by the accreditation; or (ii) has not paid fees or charges payable to the Chief Inspector or an approved food safety auditor within the required time; or (iii) has committed an offence against this Act or the Food Act 2003 ; or (iv) has been convicted of an indictable offence. (2) A suspension under this section may be for a specified period, or until the fulfilment of specified conditions, or until further order of the Chief Inspector. (3) A suspension under this section may be expressed to take effect at a specified future time, or to take effect at a specified future time unless a specified condition is fulfilled. (4) Before the Chief Inspector suspends or revokes an accreditation under this section, the Chief Inspector must – (a) give written notice to the accredited producer specifying the reasons for the proposed suspension or revocation; and (b) allow the accredited producer at least 14 days within which to make submissions to the Chief Inspector in relation to the proposed suspension or revocation. (5) If the Chief Inspector suspends or revokes an accreditation under this section, the producer must return the accreditation to the Chief Inspector within 14 days of the date on which the suspension or revocation takes effect. Penalty: Fine not exceeding 10 penalty units. (6) If the Chief Inspector revokes an accreditation under this section, the person who held the accreditation is excluded from applying for a new accreditation under this Act for a period of 12 months from the date of revocation. 21. Surrender of accreditation An accreditation may be surrendered to the Chief Inspector. 22. Review of decisions relating to accreditation (1) A person aggrieved by a decision of the Chief Inspector under this Part relating to any of the following may apply to the Magistrates Court (Administrative Appeals Division) for a review of the decision: (a) an application for an accreditation; (b) an application to transfer an accreditation; (c) the conditions of an accreditation other than a temporary accreditation under section 13 ; (d) the suspension or revocation of an accreditation other than a temporary accreditation under section 13 ; (e) the approval of a food safety program; (f) the variation of an approved food safety program. (2) An application under this section must be made within 28 days after service of the written notice of the relevant decision by the Chief Inspector. PART 5 - Offences Division 1 - Interpretation 23. Meaning of unsafe for human consumption in relation to primary produce (1) For the purposes of this Act, primary produce is "unsafe for human consumption" if the primary produce might cause physical harm to a person who consumes it, assuming – (a) it was, after it was produced but before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and (b) it was consumed by the person according to its reasonable intended use. (2) However, for the purposes of this Act, primary produce is not unsafe for human consumption merely because its inherent nutritional chemical properties cause, or its inherent nature causes, adverse reactions only in persons with allergies or sensitivities that are not common to the majority of persons. (3) In this section – processes includes processes involving storage and preparation. 24. Meaning of unsuitable for human consumption in relation to primary produce (1) For the purposes of this Act, primary produce is "unsuitable for human consumption" if the primary produce – (a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use; or (b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use; or (c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption; or (d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the primary produce; or (e) contains or has been mixed with pet food. (2) However, primary produce is not unsuitable for human consumption merely because – (a) at any particular time before it is supplied for human consumption it contains an agricultural or veterinary chemical; or (b) when it is supplied for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code; or (c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code; or (d) it contains any matter or substance that is permitted by the Food Standards Code. (3) In this section – slaughter of an animal includes the killing of an animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food. Division 2 - Serious offences 25. Intentional or reckless supply of unsafe primary produce A person must not supply primary produce for human consumption that the person knows or reasonably suspects is unsafe for human consumption. Penalty: In the case of – (a) a body corporate, a fine not exceeding 5 000 penalty units; or (b) an individual, a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both. 26. Negligent supply of unsafe primary produce A person must not supply primary produce for human consumption that the person reasonably ought to know is unsafe for human consumption. Penalty: In the case of – (a) a body corporate, a fine not exceeding 3 750 penalty units; or (b) an individual, a fine not exceeding 750 penalty units. Division 3 - Other offences 27. Supply of unsafe primary produce (1) A person must not supply primary produce for human consumption that is unsafe for human consumption. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. (2) An offence against this section is an offence of strict liability. 28. Supply of unsuitable primary produce (1) A person must not supply primary produce for human consumption that is unsuitable for human consumption. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 000 penalty units; or (b) an individual, a fine not exceeding 400 penalty units. (2) An offence against this section is an offence of strict liability. 29. Unauthorised production of primary produce (1) A person must not engage in any primary production activity to which a food safety scheme applies other than under a valid accreditation where such accreditation is required by the scheme. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. (2) An offence against this section is an offence of strict liability. 30. Official marks (1) For the purpose of this section, an official mark is a unique identifying brand, mark, label or stamp that is placed on primary produce – (a) as a unique identifier required by the Chief Inspector as a condition of accreditation; or (b) to comply with a food safety scheme; or (c) otherwise to comply with this Act. (2) A person must not, without the approval of the Chief Inspector – (a) manufacture, have in his or her possession, apply, alter or interfere with an official mark; or (b) manufacture, have in his or her possession or apply a mark resembling, or apparently intended to resemble, an official mark; or (c) manufacture or have in his or her possession an official marking device. Penalty: In the case of – (a) a body corporate, a fine not exceeding 500 penalty units; or (b) an individual, a fine not exceeding 100 penalty units. (3) An offence against this section is an offence of strict liability. 31. Compliance with Food Standards Code A person must comply with any requirement imposed on the person by a provision of the Food Standards Code in relation to the conduct of any primary production activity. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. Division 4 - General defences 32. Defence of due diligence (1) In any proceedings for an offence under this Act it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence by the person or by another person under the person's control. (2) Without limiting the ways in which a person may satisfy the requirements of subsection (1) , a person satisfies those requirements if it is proved – (a) that the commission of the offence was due to – (i) an act or default of another person; or (ii) reliance on information supplied by another person; and (b) that – (i) the person carried out all such checks of the primary produce concerned as were reasonable in all the circumstances; or (ii) it was reasonable in the circumstances to rely on checks carried out by another person. (3) Without limiting the ways in which a person may satisfy the requirements of this section, a person may satisfy those requirements by proving that in the case of an offence relating to a primary production activity for which a food safety program has been prepared in accordance with a food safety scheme, the person complied with the food safety program. (4) In this section – another person does not include a person who was – (a) an employee or agent of the defendant; or (b) in the case of a defendant that is a body corporate, a director, employee or agent of the defendant. 33. Defence of mistaken but reasonable belief not available In any proceedings for an offence under Division 3 , it is no defence that the person had a mistaken but reasonable belief as to the facts that constituted the offence. 34. Alternative verdicts for serious primary produce offences If, on the trial of a person charged with an offence under Division 2 , the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence under Division 3 , the trier of fact may find the person not guilty of the offence charged but guilty of an offence under Division 3 , and the person is liable to punishment accordingly. PART 6 - Authorised Officers 35. Appointment of authorised officers (1) The Secretary may appoint any of the following persons to be an authorised officer: (a) a State Service officer or State Service employee; (b) an employee of a council; (c) an employee of the Commonwealth or another State or a Territory; (d) an employee of a body corporate that has been designated any of the powers and functions of the Chief Inspector under a food safety scheme; (e) an employee of an entity – (i) established under a law of the Commonwealth or another State or a Territory with functions relating to food safety; and (ii) prescribed by the regulations. (2) A State Service officer or State Service employee, a person employed by the Commonwealth, a council or any other entity referred to in subsection (1) may hold the office of authorised officer in conjunction with his or her employment in the State Service, the Commonwealth, a council or other entity referred to in subsection (1) . (3) The Minister may make an agreement with the relevant Commonwealth Minister with respect to the performance and exercise by an employee of the Commonwealth of the functions and powers of an authorised officer. (4) An appointment under this section may be made subject to conditions specified in the instrument of appointment. (5) The Secretary may, at any time, revoke an appointment of an authorised officer or vary or revoke a condition of the appointment or impose a further condition of appointment. (6) The Commonwealth must be notified in writing of any action proposed to be taken under subsection (5) in relation to an employee of the Commonwealth. 36. Powers of authorised officers (1) For the purposes of this Act, an authorised officer may, at any reasonable time, do any one or more of the following: (a) alone, or with such police officers or other persons as the authorised officer considers necessary, enter and inspect any premises or vehicle that the authorised officer reasonably believes are used in connection with any primary production activity; (b) alone, or with such police officers or other persons as the authorised officer considers necessary, enter and inspect any premises or vehicle in which the authorised officer reasonably believes there are any records or documents that relate to any primary production activity; (c) examine any primary produce intended for supply; (d) open and examine any package that the authorised officer reasonably believes contains any primary produce intended for supply; (e) open and examine any equipment; (f) for the purpose of analysing any primary produce supplied or intended for supply or for carrying out any other examination in order to determine whether the provisions of this Act are being complied with, demand, select and obtain samples of any primary produce; (g) for the purpose of analysis, take samples of water, soil, biological material, chemicals, waste products or any other thing that is part of the environment in which any primary produce is produced or handled, or is connected to the production, storage or transport of primary produce, to determine whether that environment poses a risk to the safety of the primary produce for human or pet consumption; (h) take samples of anything, other than for the purpose of analysis, that the authorised officer reasonably believes may be used as evidence that an offence has been, or is being, committed under this Act; (i) seize and retain any primary produce, or issue a seizure order in respect of any primary produce – (i) if the authorised officer reasonably suspects that the produce may be unsafe for human consumption or unsuitable for human consumption; or (ii) in order to prevent the produce being processed before it can be determined to be safe for human consumption and suitable for human consumption; (j) seize and retain, or issue a seizure order in respect of, any thing that the authorised officer reasonably believes has been used in, or may be used as evidence of, a contravention of this Act; (k) examine any records or documents referred to in paragraph (b) , make copies of those records or documents or any part of them and, for that purpose, take away and retain (for such time as may be reasonably necessary) any such records or documents or any part of them; (l) stop and detain any vehicle that the authorised officer is authorised by this subsection to enter; (m) open, or require to be opened, any container used for the conveyance of goods, or any package, that the authorised officer reasonably believes may contain any primary produce supplied or intended for supply; (n) take such photographs, films or audio or visual recordings as the authorised officer considers necessary; (o) take any measurements and make sketches or drawings or any other type of record; (p) require a person to provide any information or answer any question that the authorised officer considers relevant to the administration and enforcement of this Act, or to produce any record, document or thing that an authorised officer is authorised to examine under this Act; (q) require a person to state the person's name and residential address; (r) generally make such investigations and inquiries as may be necessary to ascertain whether an offence under this Act is being or has been committed; (s) mark or brand, or direct the marking or branding of, primary produce as fit for human consumption or as unfit for human consumption, or as fit for consumption by pets or as unfit for consumption by pets, as the case may be; (t) exercise any other power prescribed by the regulations. (2) This section does not authorise entry into any part of premises that is being used solely for residential purposes, except – (a) with the consent of the occupier of the premises; or (b) under the authority of a search warrant. (3) A person is not excused from a requirement under this section to provide information or answer questions, or to produce any record, document or thing, on the ground that the information, answer, record, document or thing might incriminate the person or make the person liable to a penalty. (4) However any information or answer given, or any record, document or thing produced by an individual in compliance with a requirement or direction under this section is not admissible in evidence against that individual in criminal proceedings other than proceedings for an offence under section 39 , 40 , 42 or 43 . (5) A person who is a food safety auditor and an authorised officer and who is performing the duties of a food safety auditor in relation to any premises or vehicle may also exercise the powers and functions of an authorised officer but only if the person has first produced his or her identity card issued under section 38 – (a) to the proprietor of the primary produce business that uses those premises or vehicle or to a person who is apparently in charge of those premises or that vehicle; and (b) to any person whom the authorised officer requires to produce anything or to answer any question. 37. Search warrants (1) An authorised officer may apply to a justice for a search warrant if the authorised officer has reasonable grounds to believe that a provision of this Act has been, is being or is about to be contravened on a residential premises. (2) A justice to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant. (3) An authorised officer may execute a search warrant using such assistance as the authorised officer considers appropriate. (4) A warrant issued under this section may be made subject to any conditions that the justice considers appropriate. (5) A warrant issued under this section authorises the authorised officer named in the warrant to enter and search the premises specified in the warrant and exercise such of the powers specified in section 36 as are not expressly excluded by the justice who issued the warrant. (6) Schedule 1 has effect with respect to a warrant issued under this section. (7) This section does not limit the operation of section 36 . 38. Identification of authorised officers (1) The Secretary must issue a person appointed as an authorised officer under this Act with an identity card – (a) containing the person's name and a photograph of the person; and (b) stating that the person is an authorised person under this Act. (2) If the powers of an authorised officer have been limited by conditions, the identity card issued to the authorised officer must contain a statement of those conditions. (3) An authorised officer must, at the request of a person in relation to whom the authorised officer intends to exercise powers under this Act, produce for the inspection of the person his or her identity card (or in the case of an employee of the Commonwealth exercising the powers of an authorised officer, some other form of identification and authority). 39. Failure to comply with requirements of authorised officers A person must not, without reasonable excuse, fail to comply with a requirement or direction of an authorised officer made under this Act. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. 40. False information A person must not, in connection with a requirement or direction of an authorised officer under this Act, provide any information or answer or produce any record, document or thing that the person knows is false or misleading in a material particular. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. 41. Interfering with seized items A person must not, without the permission of an authorised officer, detain, remove or tamper with any primary produce, vehicle, equipment, package, labelling or advertising material or other thing that has been seized under this Act, unless it has been released or returned in accordance with the Act. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. 42. Obstructing or impersonating authorised officers (1) A person must not, without reasonable excuse, resist, obstruct or attempt to obstruct an authorised officer in the performance or exercise of the authorised officer's functions or powers under this Act. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. (2) A person must not impersonate an authorised officer. Penalty: Fine not exceeding 100 penalty units. 43. Threatening or abusing authorised officer A person must not threaten, intimidate, abuse or assault an authorised officer in the performance or exercise of the authorised officer's functions or powers under this Act. Penalty: Fine not exceeding 500 penalty units. PART 7 - Seizure by Authorised Officers 44. Seizure order (1) A seizure order issued by an authorised officer under section 36 – (a) must be in the form of a written notice given to the owner or person in control of the thing to which the order relates; and (b) may be varied or revoked by further written notice given to the owner or person in control of the thing to which the order relates. (2) If a seizure order is issued by an authorised officer under section 36 , a person who, without reasonable excuse, removes or interferes with any item or thing that is the subject of the seizure order is guilty of an offence. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. 45. Seizure of primary produce suspected of being unsafe or unsuitable (1) If any primary produce has been seized or made the subject of a seizure order under section 36(1)(i) and an authorised officer is satisfied that the produce is not unsafe for human consumption or not unsuitable for human consumption, the authorised officer must cause the primary produce to be released immediately, or if it is the subject of a seizure order, the authorised officer must revoke the seizure order. (2) However, if primary produce has been seized or made the subject of a seizure order under section 36(1)(i) and an authorised officer is satisfied that the produce is unsafe for human consumption or unsuitable for human consumption, the authorised officer may – (a) direct that the produce be processed or otherwise dealt with in a specified manner to ensure that it is not unsafe for human consumption or unsuitable for human consumption; or (b) direct that the produce only be used for specified limited purposes; or (c) condemn the produce and dispose of it as the authorised officer thinks fit, or direct its disposal in a specified manner. (3) Before exercising a power under subsection (2)(c) , the authorised officer must – (a) give written notice of the proposed action and the reasons for the proposed action to the owner of the produce; and (b) allow the owner of the produce a reasonable opportunity to comment on the proposed action. 46. Compensation for seizure, &c., of primary produce (1) The owner of primary produce that has been seized or made the subject of a seizure order under section 36(1)(i) may apply to the Chief Inspector for the payment of compensation if the owner considers that there were no reasonable grounds for the seizure or making of the seizure order. (2) An application under subsection (1) must be in writing and made within 14 days of the seizure of the relevant primary produce or issuing of the seizure order. (3) After considering an application for compensation under subsection (1) , the Chief Inspector may decide that – (a) such compensation as the Chief Inspector considers just and reasonable be paid to the applicant; or (b) no compensation be paid to the applicant. (4) The Chief Inspector must determine an application under subsection (1) within 28 days of receiving the application and must, within that time, serve written notice of the decision on the applicant. (5) If the Chief Inspector fails to determine an application under subsection (1) within 28 days of receiving the application, the Chief Inspector is taken to have – (a) decided to refuse to pay any compensation; and (b) served the applicant with a written notice of that decision on the day on which the 28 day period expired. (6) A person aggrieved by a decision of the Chief Inspector relating to an application under subsection (1) may, within 28 days after being served with a written notice of the decision apply to the Magistrates Court (Administrative Appeals Division) for a review of the decision. 47. Seizure of thing that may be used as evidence (1) If any thing has been seized or made the subject of a seizure order under section 36(1)(j) , the authorised officer must cause the thing to be held pending proceedings for an offence in respect to which it may be used as evidence unless the Chief Inspector authorises the release of the thing to the person from whom it was seized, or to any person who had legal title to it at the time of its seizure, subject to such conditions as the Chief Inspector thinks fit. (2) If proceedings for an offence against this Act relating to the thing are instituted within the prescribed period after its seizure, or the issuing of the seizure order, and the defendant is convicted or found guilty of the offence, the court may order that the thing be forfeited to the Crown. (3) However, if – (a) proceedings are not instituted for an offence against this Act relating to the thing within the prescribed period after its seizure, or the issuing of the seizure order; or (b) proceedings have been so instituted and the defendant is found not guilty of the offence; or (c) proceedings have been so instituted and the defendant is convicted or found guilty of the offence but no order for forfeiture is made under subsection (2) – the person from whom the thing was seized, or any person having legal title to it, is entitled to recover from the Crown (if necessary, by action in a court of competent jurisdiction) the thing itself, or if it has been damaged or destroyed, compensation of an amount equal to its market value at the time of its seizure. (4) Where the circumstances referred to in subsection (3) apply to a thing that is the subject of a seizure order, the order is revoked, and the revocation takes effect from the time of expiry of the prescribed period or from the time of determination of the proceedings, whichever is relevant in the circumstances. (5) For the purposes of this section, the "prescribed period" means 12 months, or such longer period as the court may, on application by the Chief Inspector, allow. PART 8 - Compliance Notices and Prohibition Orders 48. Meaning of legislative requirement in this Part For the purposes of this Part – legislative requirement means – (a) any requirement or condition of an accreditation; or (b) any requirement or provision of a food safety program; or (c) any requirement or provision of a food safety scheme; or (d) any requirement or provision of the Food Standards Code; or (e) any requirement of a compliance notice issued under this Part; or (f) any other requirement or provision of this Act. 49. Compliance notice (1) If an authorised officer suspects on reasonable grounds that, in the course of carrying on a primary production activity to which a food safety scheme applies, a person has contravened or is contravening a legislative requirement, the authorised officer may issue and serve a compliance notice on the person. (2) A compliance notice issued under this section may – (a) require specified action to be taken within 7 days from the service of the notice (or a lesser period specified in the notice) to rectify the contravention; or (b) require specified action to be taken within 7 days from the service of the notice (or a lesser period specified in the notice) to ensure compliance with the legislative requirement. (3) A compliance notice issued under this section must – (a) be in writing; and (b) specify the grounds on which it is issued; and (c) specify the requirements of the notice, including the action which must be taken to comply with the notice. (4) A fee fixed by the Secretary is payable by a person served with a compliance notice under this section for each inspection carried out by an authorised officer that is necessary to determine whether the requirements of the notice have been complied with. (5) A person must not, without reasonable excuse, contravene or fail to comply with a compliance notice served on the person under this section. Penalty: In the case of – (a) a body corporate, a fine not exceeding 2 500 penalty units; or (b) an individual, a fine not exceeding 500 penalty units. 50. Prohibition order (1) If the Chief Inspector suspects on reasonable grounds that, in the course of carrying on a primary production activity to which a food safety scheme applies, a person has contravened or is contravening a legislative requirement, the Chief Inspector may issue and serve a prohibition order on the person. (2) A prohibition order issued under this section may prohibit the use of specified premises, part of premises, vehicles, plant or equipment for or in connection with the primary production activity until – (a) specified action is taken within a specified time to rectify t