Western Australia: Food Act 2008 (WA)

Western Australia Food Act 2008 Western Australia Food Act 2008 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Objects of Act 2 4. Application of Act to primary food production 2 5. Application of Act to water suppliers 3 6. Application of Act to prescribed community activities 3 7. Act to bind Crown 4 Part 2 — Interpretation 8. Terms used 5 9. Term used: food 9 10. Term used: food business 10 11. Term used: primary food production 10 12. Unsafe food 11 13. Unsuitable food 12 Part 3 — Offences relating to food Division 1 — Serious offences relating to food 14. Handling of food in unsafe manner 14 15. Sale of unsafe food 14 16. False description of food 15 Division 2 — Other offences relating to food 17. Handling and sale of unsafe food 16 18. Handling and sale of unsuitable food 16 19. Misleading conduct relating to sale of food 16 20. Sale of food not complying with purchaser's demand 17 21. Sale of unfit equipment or packaging or labelling material 18 22. Compliance with Food Standards Code 18 23. False description of food 19 24. Application of provisions outside Western Australia 20 Division 3 — Defences 25. Defence relating to publication of advertisements 20 26. Defence in respect of food for export 21 27. Defence of due diligence 21 28. Defence in respect of handling food 23 29. Defence in respect of sale of unfit equipment or packaging or labelling material 23 Division 4 — Alternative verdicts 30. Alternative verdicts for serious food offences 24 Part 4 — Emergency powers 31. Making of emergency order 25 32. Nature of emergency order 25 33. Special provisions relating to recall orders 26 34. Manner of making orders 27 35. Compensation 28 36. Failure to comply with emergency order 29 37. Limitation on stay of operation of emergency orders 29 Part 5 — Powers of entry, inspection and seizure Division 1 — Entry, inspection and seizure 38. Powers of authorised officers 30 39. Self‑incrimination not an excuse 32 40. Power of seizure 32 41. Application for warrant to enter premises 33 42. Issue of warrant 34 43. Duration of warrant 35 44. Execution of warrant 35 45. Failure to comply with requirements of authorised officers 36 46. Interfering with seized items 36 47. False information 36 48. Obstructing, impersonating or threatening authorised officers 37 Division 2 — Items seized by authorised officers 49. Seized items 37 50. Notification of seizure 38 51. Destruction of filthy, decomposed or putrid matter 38 52. Return of seized item 38 53. Forfeiture of item 39 54. Cost of destruction or disposal of forfeited item 39 55. Return of forfeited item 40 56. Compensation to be paid in certain circumstances 40 57. Application for order disallowing seizure 41 58. Enforcement agency entitled to answer application 42 59. Order disallowing seizure of item 42 60. Ancillary orders 42 61. Adjournment pending hearing of other proceedings 43 Part 6 — Improvement notices and prohibition orders Division 1 — Improvement notices 62. Grounds for serving improvement notice 44 63. Improvement notice may require certain action to be taken 44 64. Compliance with improvement notice 45 Division 2 — Prohibition orders 65. Prohibition order 46 66. Certificate of clearance to be given in certain circumstances 47 67. Request for re‑inspection 48 68. Contravention of prohibition order 48 69. Review of decision to refuse certificate of clearance 49 70. Compensation 49 Division 3 — Other matters 71. Scope of notices and orders 50 72. Notices and orders to contain certain information 50 Part 7 — Taking and analysis of samples Division 1 — Taking of samples 73. Application of Division 51 74. Proprietor to be informed 51 75. Payment for sample 51 76. Samples from vending machines 51 77. Packaged food 52 78. Procedures to be followed 52 79. Samples to be submitted for analysis 53 Division 2 — Procedures relating to analyses 80. Compliance with Food Standards Code 53 81. Certificate of analysis 54 Division 3 — Approval of laboratories 82. Approval of laboratories 55 83. Term of approval 55 84. Person in charge of approved laboratory to give notice of certain interests 55 85. Variation of conditions or suspension or cancellation of approval of laboratory 56 86. Review of decisions relating to approval 57 87. List of approved laboratories to be maintained 58 Division 4 — Approval of analysts 88. Approval of persons to carry out analyses 58 89. Term of approval 58 90. Approved analyst to give notice of certain interests 59 91. Variation of conditions or suspension or cancellation of approval of analyst 59 92. Review of decisions relating to approval 60 93. List of approved analysts to be maintained 60 Part 8 — Auditing Division 1 — Approval of food safety auditors 94. Approval of food safety auditors 62 95. Term of approval 63 96. Food safety auditor to give notice of certain interests 63 96A. Food safety auditor must be insured 63 97. Variation of conditions or suspension or cancellation of approval of auditor 64 98. Review of decisions relating to approvals 65 Division 2 — Auditing and reporting requirements 99. Food safety programs and auditing requirements 66 100. Priority classification system and frequency of auditing 67 101. Duties of food safety auditors 68 102. Reporting requirements 68 103. Redetermination of frequency of auditing 70 Division 3 — Other matters relating to food safety auditors 104. Certificates of authority of food safety auditors 71 105. List of food safety auditors to be maintained 71 106. Obstructing, impersonating or threatening food safety auditors 72 Part 9 — Registration of food businesses 107. Notification of conduct of food businesses 73 108. Exemption in relation to notification of information 73 109. Conduct of unregistered food businesses 74 110. Registration of food businesses 74 111. Term of approval 75 112. Variation of conditions or cancellation of registration of food businesses 76 113. Notification of certain changes to registered food businesses 77 114. Review of decisions relating to registration 78 115. Register of food businesses to be maintained 79 Part 10 — Administration Division 1 — CEO 116. Functions of the CEO 80 117. CEO may delegate 80 Division 2 — Functions of enforcement agencies 118. Functions of enforcement agencies and delegation 81 119. Conditions on performance of functions by enforcement agencies 82 120. Performance of functions by enforcement agencies and authorised officers 82 121. Reports by and about enforcement agencies 83 Division 3 — Appointment of authorised officers 122. Appointment of authorised officers 83 123. Certificates of authority 84 Division 4 — Advisory committees 124. Establishment and functions of advisory committees 85 Part 11 — Procedural and evidentiary provisions 125. Institution of proceedings 86 126. Infringement notices 86 127. Offences by employees — liability of employer 88 128. Liability of officers for offence by body corporate 89 129. Liability of employees and agents 89 130. No defence to allege deterioration of sample 90 131. Onus to prove certain matters on accused person 90 132. Presumption 90 133. Certificate evidence and evidence of analysts 91 134. Documentary evidence of certain matters 92 135. Power of court to order further analysis 93 136. Disclosure by witnesses 93 137. Court may order costs and expenses 94 138. Court may order forfeiture 94 139. Court may order corrective advertising 94 Part 12 — Miscellaneous 140. Fees and charges may be imposed and recovered by local governments that are enforcement agencies 95 141. Protection from liability for wrongdoing 95 142. Certain confidential information not to be disclosed 96 143. Publication of names of offenders 97 144. Regulations 97 145. Temporary emergency regulations modifying the Food Standards Code 99 146. Minister to review and report on Act 100 Part 14 — Transitional provisions Division 1 — Transitional provisions for Food Act 2008 150. Term used: commencement day 101 151. Interpretation Act 1984 not affected 101 152. Orders under Health Act 1911 section 246W 101 153. Orders under Health Act 1911 section 246Y 101 154. Transitional regulations 101 Division 2 — Transitional provisions for Mutual Recognition (Western Australia) Amendment Act 2022 155. Providing insurance information 102 Notes Compilation table 104 Defined terms Western Australia Food Act 2008 An Act providing for the safety and suitability of food for human consumption, and for related purposes. Part 1 — Preliminary 1. Short title This is the Food Act 2008. 2. Commencement (1) This Act comes into operation as follows: (a) sections 1 and 2 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation. (2) Different days may be fixed under subsection (1)(b) for different provisions. 3. Objects of Act The objects of this Act include the following — (a) to ensure food for sale is both safe and suitable for human consumption; (b) to prevent misleading conduct in connection with the sale of food; (c) to provide for the application in this State of the Food Standards Code. 4. Application of Act to primary food production (1) Parts 6, 8 and 9 do not apply to or in respect of primary food production. (2) The functions conferred on authorised officers by Parts 5 and 7 may be performed in respect of primary food production only — (a) to enable the investigation and prosecution of offences against this Act; or (b) in connection with making or enforcing emergency orders. 5. Application of Act to water suppliers (1) The following provisions of this Act do not apply to a water supplier in respect of the supply of water for human consumption through a reticulated water system — (a) sections 14, 16, 17(1), 18(1), 19, 20, 21 and 22 (but only to the extent to which section 22 requires compliance with the requirements of the Food Safety Standards); (b) Parts 6, 8 and 9. (2) In this section — water supplier means — (a) a body that is constituted by or under an Act and that has as, or as one of, its functions the supply of water for human consumption; or (b) a person who is employed or engaged by such a body to supply water for human consumption; or (c) any body or person prescribed by the regulations for the purposes of this definition. 6. Application of Act to prescribed community activities (1) In subsection (2) — prescribed means prescribed by the regulations for the purposes of that subsection. (2) The regulations may exempt from all or any provisions of this Act a prescribed activity of a charitable or community nature relating to food or an activity within a prescribed class of activities of a charitable or community nature relating to food. (3) An exemption may be expressed to apply — (a) generally; or (b) for a specified period; or (c) in specified circumstances or for the purposes of a specified occasion or event. (4) The regulations may provide — (a) for conditions and restrictions subject to which an exemption is to apply; and (b) that an exemption is of no effect at any time when any condition or restriction to which the exemption is subject is not being complied with. 7. Act to bind Crown This Act binds the Crown in right of the State and, so far as the legislative power of Parliament permits, in all its other capacities. Part 2 — Interpretation 8. Terms used In this Act, unless the contrary intention appears — 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 and reptile; appropriate enforcement agency, in relation to the provision in which the expression is used, means the enforcement agency prescribed by the regulations for the purposes of that provision; approved analyst means a person approved under Part 7 Division 4; approved form means the form approved from time to time by the CEO; approved laboratory means a laboratory approved under Part 7 Division 3; authorised officer means — (a) a person appointed under Part 10 Division 3; or (b) a person designated by a local government as an authorised officer under the Public Health Act 2016 section 24(1) for the purposes of this Act; CEO means the chief executive officer of the department of the Public Service principally assisting in the administration of this Act; court means the Magistrates Court; emergency order means an order under Part 4; enforcement agency means — (a) the CEO; or (b) a local government; or (c) a person or body, or a person or body within a class of persons or bodies, prescribed by the regulations for the purposes of this definition; 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 and measure; food has the meaning given by section 9; food business has the meaning given by section 10; food safety auditor means a person approved under Part 8 Division 1; Food Safety Standards means the standards contained in Chapter 3 of the Food Standards Code; Food Standards Australia New Zealand has the same meaning as it has in the Commonwealth Food Standards Australia New Zealand Act 1991; Food Standards Code means the Australia New Zealand Food Standards Code as defined in the Commonwealth Food Standards Australia New Zealand Act 1991 and as adopted or incorporated by the regulations; food transport vehicle means a vehicle used for the transport of food for sale; handling, of food, includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving and displaying of food; improvement notice means an improvement notice issued under Part 6 Division 1; 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; member of staff means an officer of the department of the Public Service principally assisting in the administration of this Act; package includes any container or wrapper in or by which food intended for sale is wholly or partly encased, covered, enclosed, contained or packed and, in the case of food carried or sold or intended to be carried or sold in more than one package, includes every such package; premises includes — (a) land (whether or not vacant); or (b) the whole or any part of a building, tent, stall or other structure (whether of a permanent or temporary nature); or (c) a pontoon; or (d) a vehicle (other than a food transport vehicle while it is engaged in the transport of food); primary food production has the meaning given by section 11; prohibition order means a prohibition order under Part 6 Division 2; 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) a prison as defined in the Prisons Act 1981; or (b) a detention centre as defined in the Young Offenders Act 1994; or (c) a public hospital as defined in the Health Services Act 2016 section 6; or (d) an institution, or an institution within a class of institutions, prescribed by the regulations for the purposes of this definition; recall order means an emergency order requiring the recall or disposal, or both, of any food; remote communication means any way of communicating at a distance, including by telephone, fax, email and radio; sell includes — (a) barter, offer or attempt to sell; and (b) receive for sale; and (c) have in possession for sale; and (d) display for sale; and (e) cause or permit to be sold or offered for sale; and (f) send, forward or deliver for sale; and (g) dispose of by any method for valuable consideration; and (h) dispose of to an agent for sale on consignment; and (i) provide under a contract of service; and (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; and (k) dispose of by way of raffle, lottery or other game of chance; and (l) offer as a prize or reward; and (m) give away for the purpose of advertisement or in furtherance of trade or business; and (n) 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; and (o) supply food (whether or not for consideration) in the course of providing services to patients or inmates in public institutions; and (p) sell for the purpose of resale; unsafe, in relation to food, has the meaning given by section 12; unsuitable, in relation to food, has the meaning given by section 13; vehicle means any means of transport, whether self‑propelled or not, and whether used on land or sea or in the air. [Section 8 amended: No. 42 of 2009 s. 18; No. 11 of 2016 s. 290; No. 19 of 2016 s. 144.] 9. Term used: 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); and (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); and (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; and (d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; and (e) any substance or thing declared to be a food under a declaration in force under the Commonwealth Food Standards Australia New Zealand Act 1991 section 6, 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 Commonwealth Therapeutic Goods Act 1989. (3) To avoid doubt, food may include live animals and plants. 10. Term used: 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, subject to section 6, 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. 11. Term used: primary food production (1) In this Act, primary food production means the growing, raising, cultivation, picking, harvesting, collection or catching of food, and includes — (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; and (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; and (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; and (d) the sale of livestock at saleyards and the transportation of livestock to and from saleyards; and (e) any other food production activity that is regulated by or under an Act prescribed by the regulations for the purposes of this subsection. (2) However, primary food production does not include — (a) any process involving the substantial transformation of food (for example, manufacturing or canning), regardless of whether the process is carried out on the premises on which the food was grown, cultivated, picked, harvested, collected or caught; or (b) the sale or service of food directly to the public; or (c) any other food production activity that is prescribed by the regulations for the purposes of this subsection. 12. 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 it from 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. 13. 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. Part 3 — Offences relating to food Division 1 — Serious offences relating to food 14. 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: (a) for an individual — a fine of $100 000 and imprisonment for 2 years; (b) for a body corporate — a fine of $500 000. (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: (a) for an individual — a fine of $75 000; (b) for a body corporate — a fine of $375 000. 15. Sale of unsafe food (1) A person must not sell food that the person knows is unsafe. Penalty: (a) for an individual — a fine of $100 000 and imprisonment for 2 years; (b) for a body corporate — a fine of $500 000. (2) A person must not sell food that the person ought reasonably to know is unsafe. Penalty: (a) for an individual — a fine of $75 000; (b) for a body corporate — a fine of $375 000. 16. 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: (a) for an individual — a fine of $100 000 and imprisonment for 2 years; (b) for a body corporate — a fine of $500 000. (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: (a) for an individual — a fine of $75 000; (b) for a body corporate — a fine of $375 000. (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: (a) for an individual — a fine of $100 000 and imprisonment for 2 years; (b) for a body corporate — a fine of $500 000. (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: (a) for an individual — a fine of $75 000; (b) for a body corporate — a fine of $375 000. Division 2 — Other offences relating to food 17. 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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (2) A person must not sell food that is unsafe. Penalty: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. 18. 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: (a) for an individual — a fine of $40 000; (b) for a body corporate — a fine of $200 000. (2) A person must not sell food that is unsuitable. Penalty: (a) for an individual — a fine of $40 000; (b) for a body corporate — a fine of $200 000. (3) For the purposes of this section, it is immaterial whether the food concerned is safe. 19. 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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (4) Nothing in subsection (2) or (3) limits the generality of subsection (1). 20. 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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (2) For the purposes of this section, it is immaterial whether the food concerned is safe. 21. 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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. 22. 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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (2) A person must not sell any food that does not comply with a requirement of the Food Standards Code that relates to the food. Penalty: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (3) A person must not sell or advertise for sale any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code. Penalty: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. (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: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. 23. False description 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) to section 16(3) or (4), food is falsely described for the purposes of section 16(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. 24. Application of provisions outside Western Australia For the purposes of a provision of this Part, it does not matter that the food concerned was sold or intended for sale outside this State. Division 3 — Defences 25. 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) ought reasonably to have known that the publication of the advertisement was an offence; or (b) had previously been informed in writing by the CEO 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. 26. Defence in respect of food for export (1) In any proceedings for an offence under this Part involving a contravention of or failure to comply with a provision of the Food Standards Code in relation to food, it is a defence for a person to prove that — (a) the food in question is to be exported to another country; and (b) the food complies with the laws in force at the time of the alleged offence in the place to which the food is to be exported, being laws that deal with the same subject matter as the provision of the Food Standards Code concerned. (2) This section does not apply to food that was originally intended for export but was sold in this State. 27. 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 the checks of the food concerned that were reasonable in all the circumstances; or (ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the person; and (c) that the person did not import the food into this State from another country; and (d) in the case of an offence involving the sale of food, that — (i) the person sold the food in the same condition as when the person purchased it; or (ii) the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act. (3) In subsection (2)(a) — another person does not include a person who was — (a) an employee or agent of the accused person; or (b) in the case of an accused person that is a body corporate — a director, employee or agent of the accused person. (4) Without limiting the ways in which a person may satisfy the requirements of subsection (1) or (2)(b)(i), a person may satisfy those requirements by proving that — (a) in the case of an offence relating to a food business for which a food safety program is required to be prepared in accordance with the regulations — the person complied with a food safety program for the food business that complies with the requirements of the regulations; or (b) in any other case — the person complied with a scheme (for example, a quality assurance program or an industry code of practice) that was — (i) designed to manage food safety hazards and based on Australian national or international standards, codes or guidelines designed for that purpose; and (ii) documented in some manner. 28. Defence in respect of handling food In any proceedings for an offence under section 14(1) or (2), 17(1) or 18(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 rendered it, or was likely to render it, unsafe or unsuitable. 29. Defence in respect of sale of unfit equipment or packaging or labelling material In any proceedings for an offence under section 21, 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. Division 4 — Alternative verdicts 30. Alternative verdicts for serious food offences (1) If, on the trial of a person charged with an offence against section 14, the court is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 17(1), the court may find the person not guilty of the offence charged but guilty of an offence against section 17(1), and the person is liable to be punished accordingly. (2) If, on the trial of a person charged with an offence against section 15, the court is not satisfied that the person committed the offence but is satisfied that the person committed an offence against section 17(2), the court may find the person not guilty of the offence charged but guilty of an offence against section 17(2), and the person is liable to be punished accordingly. Part 4 — Emergency powers 31. Making of emergency order An order may be made under this Part by the CEO if the CEO has reasonable grounds to believe that making the emergency 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. 32. Nature of emergency order An emergency order may do any one or more of the following — (a) require the publication of warnings, in the approved form, 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 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. 33. Special provisions relating to recall orders (1) A recall order may require the person, or the persons of a class, 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 notification to the CEO 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 reasonable costs incurred by or on behalf of the CEO in connection with the recall order, and any such costs are taken to be a debt due to the CEO from that person and are recoverable in a court of competent jurisdiction. (4) In any proceedings for the recovery of the debt, a certificate signed by the CEO stating the amount of reasonable costs and the manner in which they were incurred is evidence of the matters certified. 34. Manner of making orders (1) An emergency order — (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) if notified in accordance with subsection (2) — may be addressed to several persons, to a class of persons, or to all persons. (2) Notice of an emergency order addressed as referred to in subsection (1)(b) setting out the terms of the order and the persons to be bound by the order must, as soon as practicable after the order is made, be published in a newspaper that, in the opinion of the CEO, will be most likely to bring the order to the attention of the persons bound by it. (3) An emergency order, when it takes effect, is binding on the person or persons to whom it is addressed. (4) An emergency order that is served on a person takes effect when it is served. (5) An emergency 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 emergency order ceases to have effect on the expiry of 90 days after the day on which it takes effect unless it is sooner revoked. (7) Subsection (6) does not prevent a further emergency order being made in the same terms as an emergency order that has ceased to have effect. (8) An emergency order may be varied or revoked by the CEO in the same manner as the order was made. 35. Compensation (1) A person bound by an emergency order who — (a) suffers loss as a result of the making of the order; and (b) considers that there were insufficient grounds for making the order, may apply to the CEO for compensation. (2) If there were insufficient grounds for making the emergency order, the CEO must pay the compensation to the applicant that is just and reasonable. (3) The CEO must give each applicant for the payment of compensation written notification of — (a) the determination to pay or to refuse to pay compensation under this section; and (b) if compensation is to be paid — the determination as to the amount of compensation that is just and reasonable. (4) If the CEO has not determined an application for compensation under this section within 28 days after receiving the application, the CEO is taken to have refused to pay any compensation. (5) An applicant for the payment of compensation under this section who is dissatisfied with a determination by the CEO as to the refusal to pay compensation or as to the amount of compensation may apply to the State Administrative Tribunal 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 after the expiry of the 28 day period referred to in that subsection. 36. 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 emergency order; or (b) neglect or refuse to comply with a direction given by an emergency order; or (c) fail to comply with a condition specified in an emergency order. Penalty: (a) for an individual — a fine of $50 000; (b) for a body corporate — a fine of $250 000. 37. 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 emergency order. Part 5 — Powers of entry, inspection and seizure Division 1 — Entry, inspection and seizure 38. 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 the police officers or other persons the authorised officer considers necessary, enter and inspect any premises that the authorised officer reasonably believes are used in connection with the handling of any food intended for sale or the sale of food, or any food transport vehicle; (b) alone, or with the police officers or other persons the authorised officer considers necessary, enter and inspect any premises or food transport vehicle in which the authorised officer reasonably believes that there are any records or documents that relate to the handling of any food intended for sale or the sale of food; (c) examine any food intended for sale; (d) open and examine any package that the authorised officer reasonably believes contains any food intended for sale or any equipment; (e) open and examine any equipment; (f) examine any labelling or advertising material that appears to the authorised officer to be intended for use in connection with any food intended for sale or any equipment; (g) subject to Part 7 Division 1, for the purpose of analysing any food sold or intended for sale or for carrying out any other examination to determine whether the provisions of this Act are being complied with — demand, select and obtain samples of any food; (h) for the purpose of analysis, take samples of water or soil or any other thing that is part of the environment in which any food is handled to determine whether that environment poses a risk to the safety of the food for human consumption; (i) take samples of 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; (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 any time that may be reasonably necessary) any of those 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 any photographs, films or audio or visual recordings that 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 any investigations and inquiries that may be necessary to ascertain whether an offence under this Act has been or is being committed. (2) This section does not authorise entry into any part of premises being used solely for residential purposes, except — (a) with the consent of the occupier of the premises; or (b) under the authority of a warrant issued under section 42; or (c) if that part of the premises is being used for the preparation or service of meals provided with paid accommodation. (3) With respect to powers of entry, inspection and seizure by and pursuant to section 38, the exercise of all such powers of the authorised officer must be reasonable under the circumstances. 39. Self‑incrimination not an excuse (1) A person is not excused from a requirement under section 38 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. (2) However, any information or answer provided, or record, document or thing produced, by an individual 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 45, 46, 47 or 48. 40. Power of seizure An authorised officer may seize any food, or any vehicle, equipment, package or labelling or advertising material, or any other thing, that the authorised officer believes on reasonable grounds is evidence that an offence under this Act has been or is being committed. 41. Application for warrant to enter premises (1) A reference in this section to making an application includes a reference to giving information in support of the application. (2) An authorised officer may apply to a magistrate for a warrant in respect of any premises if the authorised officer has reasonable grounds for believing that a provision of this Act has been or is being contravened on the premises. (3) The application must be made by the authorised officer in person unless — (a) the warrant is needed urgently; and (b) the applicant reasonably believes that a magistrate is not available within a reasonable distance of the applicant, in which case — (c) the application may be made to a magistrate by remote communication; and (d) the magistrate may grant the application only if satisfied about the matters in paragraphs (a) and (b). (4) The application must be made in writing unless — (a) the application is made by remote communication; and (b) it is not practicable to send the magistrate written material, in which case — (c) the application may be made orally; and (d) the magistrate must make a written record of the application and any information given in support of it. (5) The application must be made on oath unless — (a) the application is made by remote communication; and (b) it is not practicable for the magistrate to administer an oath to the applicant, in which case — (c) the application may be made in unsworn form; and (d) if the magistrate issues a warrant, the applicant is as soon as practicable to send the magistrate an affidavit verifying the application and any information given in support of it. (6) If, on an application made by remote communication under this section, a magistrate issues a warrant, the magistrate must send, if practicable, a copy of the original warrant to the applicant by remote communication, but otherwise — (a) the magistrate must send the applicant by remote communication any information that is to be set out in the warrant; and (b) the applicant must complete a form of a warrant with that information and give the magistrate a copy of the form as soon as practicable after doing so; and (c) the magistrate must attach the copy of the form to the original warrant and any affidavit received from the applicant and make them available for collection by the applicant. (7) The copy of the original warrant sent, or the form of the warrant completed, as the case may be, under subsection (6) has the same force and effect as the original warrant. (8) If an applicant contravenes subsection (5)(d) or (6)(b), any evidence obtained under the warrant is not admissible in proceedings in a court. 42. Issue of warrant (1) The magistrate may, if satisfied that there are reasonable grounds for doing so, issue a warrant to the authorised officer. (2) The magistrate must cause a record to be made (on the warrant or otherwise) of the matters of fact on which the magistrate has relied to justify the issue of the warrant. 43. Duration of warrant A warrant remains in force — (a) for the period specified in the warrant as the period during which it remains in force; or (b) if no period is so specified — for one month from the date of its issue. 44. Execution of warrant (1) A warrant may be executed only by the authorised officer to whom it was issued. (2) A warrant authorises the authorised officer to whom it was issued — (a) to enter the premises concerned using any force that is reasonably necessary to do so; and (b) to search those premises for evidence of a contravention of this Act. (3) An authorised officer executing a warrant — (a) may be accompanied by a police officer if necessary for the effective exercise of the powers conferred by the warrant and this section; and (b) must produce the warrant for inspection by a person occupying the premises concerned if asked by the person to do so. (4) This section does not limit the operation of any other provision of this Part. 45. Failure to comply with requirements of authorised officers (1) A person must not, without reasonable excuse, fail to comply with a requirement of an authorised officer under this Division. Penalty: (a) for an individual — a fine of $10 000; (b) for a body corporate — a fine of $50 000. (2) Subsection (1) does not apply unless, when the authorised officer makes the requirement, the authorised officer informs the person that a failure to comply with the requirement may constitute an offence. 46. Interfering with seized items A person must not, without the permission of an authorised officer, detain, remove or tamper with any food, vehicle, equipment, package or labelling or advertising material or other thing that has been seized under this Act, unless it has been returned in accordance with Division 2 or an order disallowing the seizure has been made under that Division. Penalty: (a) for an individual — a fine of $10 000; (b) for a body corporate — a fine of $50 000. 47. False information A person must not, in connection with a requirement or direction under this Act, provide any information or produce any document that the person knows is false or misleading in a material particular. Penalty: (a) for an individual — a fine of $10 000; (b) for a body corporate — a fine of $50 000. 48. Obstructing, impersonating or threatening authorised officers (1) A person must not resist, obstruct or attempt to obstruct an authorised officer in the performance of the authorised officer's functions under this Act. Penalty: a fine of $10 000. (2) A person must not falsely represent, by words or conduct, that the person is an authorised officer. Penalty: a fine of $10 000. (3) A person must not threaten or intimidate an authorised officer in the performance of the authorised officer's functions under this Act. Penalty: a fine of $10 000. Division 2 — Items seized by authorised officers 49. 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 a way that indicates that it has been seized under this Act. 50. 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 — (a) a description of the item seized; and (b) the reason for the seizure; and (c) an explanation of the person's right to make an application to the court under section 57 for an order disallowing the seizure; and (d) the address of the place where the item is held if the item has been removed from the premises where it was seized; and (e) the name of the enforcement agency to whom the authorised officer reports. 51. 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. 52. Return of seized item If, before any item seized under this Part is forfeited to the State under this Division, the enforcement agency concerned becomes satisfied that there has been no contravention of this Act of which the item is evidence, the enforcement agency must, as soon as practicable, cause the item to be delivered to — (a) the person from whom it was seized; or (b) any other person who appears to the enforcement agency to be entitled to it. 53. Forfeiture of item (1) An item seized under this Part is forfeited to the State — (a) on the expiry of the period allowed by section 57 for lodging an application for an order disallowing the seizure if the item has not been dealt with under section 52 and no application under section 57 has been lodged within that period; or (b) if an application for an order disallowing the seizure has been lodged under section 57 within that period but the application has been refused or has been withdrawn before a decision on the application has been made — on the date on which the application is refused or withdrawn. (2) An item forfeited to the State under this section may be destroyed, sold or otherwise disposed of as the enforcement agency concerned may, generally or in a particular case, direct. 54. 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 costs 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). (2) The amount of any such costs is taken to be a debt due to the enforcement agency from that person and is recoverable in a court of competent jurisdiction. (3) 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. 55. Return of forfeited item (1) An item seized under this Part that — (a) is forfeited under this Division; and (b) 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 any other person who 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. 56. Compensation to be paid in certain circumstances (1) A person may apply for compensation for an item seized under this Part to the enforcement agency that appointed or designated the authorised officer who seized the item, but only if — (a) the period allowed by section 57 for lodging an application for an order disallowing the seizure has expired and no application has been lodged; or (b) any application for such an order lodged within that period has been refused or has been withdrawn before a decision on the application has been made. (2) On an application made in accordance with this section, an enforcement agency must pay the compensation that is just and reasonable in relation to any item seized under this Part by an authorised officer appointed or designated 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 must give 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 must be paid to the person from whom the item was seized, or any other person who appears to the enforcement agency to be entitled to it. (5) A person from whom an item was seized under this Part, or any other person who has sought compensation under this section, who is dissatisfied with a determination by an enforcement agency under this section as to the refusal to pay compensation or as to the amount of compensation may apply to the State Administrative Tribunal for a review of the determination within 28 days after the date on which notification of the determination was received. [Section 56 amended: No. 19 of 2016 s. 145.] 57. 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, in accordance with the court's rules of court, for an order disallowing the seizure. (2) The application is not to be heard unless the applicant has served a copy of the application on the enforcement agency that appointed or designated the authorised officer who seized the item. [Section 57 amended: No. 19 of 2016 s. 146.] 58. Enforcement agency entitled to answer application The enforcement agency concerned is entitled to appear as respondent at the hearing of an application under section 57. 59. Order disallowing seizure of item (1) The court, on the hearing of an application under section 57, 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, 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. (2) If neither subsection (1)(a) or (b) applies, the court must refuse the application. 60. Ancillary orders (1) If the court makes an order disallowing the seizure 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 any other person who 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 the amount by way of compensation that the court considers to be just and reasonable. (2) Despite subsection (1), the court is not to award an amount of compensation that exceeds the jurisdictional limit defined in the Magistrates Court (Civil Proceedings) Act 2004 section 4. (3) The award of costs with respect to the hearing of the application lies in the discretion of the court. (4) If the court makes an order for the payment of any amount as compensation or awards any amount as costs, the order or award is enforceable as a judgment of the court. 61. Adjournment pending hearing of other proceedings If, on the hearing of an application made under section 57, 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 any other written law, the court, on the application of the respondent or on its own motion, may adjourn the hearing until the conclusion of those proceedings. Part 6 — Improvement notices and prohibition orders Division 1 — Improvement notices 62. Grounds for serving improvement notice An authorised officer may serve an improvement notice on the proprietor of a food business in accordance with this Division if the authorised officer believes, on reasonable grounds, that — (a) any premises used by the food business in connection with the handling of food intended for sale are, or any equipment or food transport vehicle is, in an unclean or insanitary condition or otherwise unfit for the purpose for which the premises are, or the equipment or vehicle is, designed or intended to be used; or (b) any premises used by the food business in connection with the handling of food intended for sale do not, or any equipment or food transport vehicle does not, comply with a provision of the Food Safety Standards with which the food business is required to comply; or (c) in relation to any premises used by the food business in connection with the handling of food for sale or any food transport vehicle — any relevant food safety program prepared in accordance with the regulations is not being implemented adequately by the food business; or (d) any provision of the Food Standards Code with which th