Victoria act

Food Act 1984

In ForceVIC

Jurisdiction

Victoria

Collection

act

Plain English Summary

8/10 complexity

The Food Act 1984 sets rules for food safety, suitability, labelling and compliance with the Australia New Zealand Food Standards Code, creates offences and penalties, and establishes enforcement, registration and inspection mechanisms. It applies to food businesses (with express carve-outs for primary production and certain water suppliers) and assigns administrative roles to the Secretary, Department and local councils.

Proprietors, corporate officers, employers and vendors must comply with food‑safety programs, registration and labelling requirements and may face analysis, forfeiture, fines or imprisonment; key powers and exemptions rest with the Secretary, Minister and councils (ss 3, 4A, 6A, 8–16, 19D, 48).

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Current sections

Direct links to the current provisions in Food Act 1984.

229

Role of councils 27

7A Role of councils 27

Role of Department 27

7B Role of Department 27

7BA Role of Department of Energy, Environment and Climate Action 28

7C Annual report on food regulation 28

7D Information required to be provided by councils 30

7E Direction by the Minister 30

Part II—Offences relating to food 32

Division 1—Serious offences relating to food 32

8 Knowingly handling food in unsafe manner 32

8A Handling food in unsafe manner in other circumstances 32

9 Knowingly selling unsafe food 33

9A Sale of unsafe food in other circumstances 33

10 Knowingly falsely describing food 34

10A Falsely describing food in other circumstances 34

Division 2—Other offences relating to food 35

11 Handling and sale of unsafe food 35

12 Handling and sale of unsuitable food 36

13 Misleading conduct relating to sale of food 36

14 Sale of food not complying with purchaser's demand 37

15 Sale of unfit equipment or packaging or labelling material 38

16 Compliance with Food Standards Code 38

17 Proprietor's name to be affixed to premises 40

17A False descriptions of food 40

17B Application of provisions outside jurisdiction 42

Division 3—Defences 42

17C Defence relating to publication of advertisements 42

17D Defence in respect of food for export 42

17E Defence of due diligence 43

17F Defence of mistaken and reasonable belief not available 45

17G Defence in respect of handling food 45

17H Defence in respect of sale of unfit equipment or packaging or labelling material 45

Part IIA—Kilojoule labelling scheme 46

Division 1—Definitions 46

18 Definitions 46

18A What is a chain food premises? 48

18B What is a chain supermarket? 49

18C What is a standard food item? 50

Division 2—Requirement for proprietor of chain food premises to display kilojoule information 52

18D Requirement for proprietor of chain food premises to display kilojoule information 52

18E Chain food premises—manner and location of display of kilojoule information 53

Division 3—Requirement for proprietor of chain supermarket to display kilojoule labelling 54

18F Requirement for proprietor of chain supermarket to display kilojoule information 54

18G Chain supermarket—manner and location of display of kilojoule information 55

Division 4—Exemptions 57

18H Exemptions 57

Part III—Orders 58

Orders relating to food premises 58

19 Orders relating to food premises 58

19AA Orders relating to premises on which primary food production and related activities are carried out 62

19A

Orders relating to food vending machines and other equipment 66

19A Orders relating to food vending machines and other equipment 66

19B

Orders relating to food handlers 69

19B Orders relating to food handlers 69

19BA Appeals against orders 70

Part IIIA—Undertakings 72

19BB Secretary may accept undertaking 72

19BC Consent orders and enforcement of undertaking 73

Part IIIB—Food safety 74

Div 1

Classification of food premises 74

Division 1—Classification of food premises 74

19C

Declaration of classes of food premises 74

19C Declaration of classes of food premises 74

19CA Notice of intention to make or vary declaration of classes of food premises 75

Div 2

Minimum record keeping 76

Division 2—Minimum record keeping 76

19CB Minimum record keeping 76

Div 3

Food safety programs 78

Division 3—Food safety programs 78

19D

Food safety programs 78

19D Food safety programs 78

19DB Registration of food safety program templates 79

19DC Standard food safety programs 79

19DD QA food safety program 80

19E

Requirement for food safety program 80

19E Requirement for food safety program 80

19EA Revision of food safety program 82

19F

Food safety program must be kept at premises 82

19F Food safety program must be kept at premises 82

19FA Proprietor to comply with written direction of registration authority 83

Div 4

Food safety supervisors 84

Division 4—Food safety supervisors 84

19G

Food safety supervisors 84

19G Food safety supervisors 84

19GA Requirement for food safety supervisor 84

19GB Name of supervisor to be provided on request 85

Div 5

Assessment and audit of food premises 85

Division 5—Assessment and audit of food premises 85

19H

Assessment and audit requirements for food premises 85

19H Assessment and audit requirements for food premises 85

19HA Food safety assessments and food safety audits 87

19I

Requirement for food safety assessment 88

19I Requirement for food safety assessment 88

19IA Deficiencies identified in food safety assessment by registration authority 89

19J

Food safety assessment conducted by food safety auditor 90

19J Food safety assessment conducted by food safety auditor 90

19JA Deficiencies identified in food safety assessment by food safety auditor 91

19K Requirement for food safety audit 92

19L Certificate of compliance following audit 93

19M Deficiencies identified in food safety audit 93

19MA Certificate of food safety program adequacy 95

19N

Food safety auditor to provide certain information to registration authority 95

19N Food safety auditor to provide certain information to registration authority 95

19NA Request by registration authority for copy of report prepared by food safety auditor 96

Division 6—Food safety auditors 97

19O Only approved auditor may conduct audit 97

19P Certification of food safety auditors 97

19Q Auditor must comply with conditions of certification 98

19R Offence to impersonate approved auditor 98

19S Conflict of interest 99

19T Revocation of approval to act as an auditor 99

19U Audit by council staff 100

Division 7—Miscellaneous 101

19UA Council fees for assessments 101

19V

Exemptions concerning food safety 102

19V Exemptions concerning food safety 102

19W

Directions concerning food safety 103

19W Directions concerning food safety 103

Part IV—Authorized officers 105

20 Authorized officers 105

21 Powers of authorized officers 107

22 Procuring of samples of food 110

23 Procedures on taking samples 111

24 Duties of officer upon seizure and detention of article 113

25 Keeping and storage of certain articles 114

26 Remedy in respect of articles seized 114

27 Destruction or other disposal of seized food 117

28 Liability for costs and expenses of storage or destruction or other disposal of seized article 117

29 Offences with respect to authorized officers and articles 118

Part V—Analysts 120

30 Analysts 120

31 Duties of analysts 122

31A Interstate analysts 123

32 Councils to submit samples for analysis 123

32A Sampling requirement declaration 125

33 Copy of certificate of analysis 125

34 Prohibition on use of analyst's certificate for certain purposes 126

Part VI—Registration of food premises 127

Division 1—General 127

35 Registration authority 127

35A Requirement to be registered or to notify registration authority 128

36 Information required to be given to registration authority 130

36A Application for registration or notification using online portal 130

36B Charge for use of online portal 131

36C Online portal charge 131

37 Notification requirement of Food Standards Code 132

38 Exemption from registration 132

Division 2—Notification of premises exempt from registration 134

38AA Procedure for notification 134

38AB Notification fee 134

Division 3—Registration of food premises 135

38A Information required to accompany application for registration 135

38B Requirements for registration 137

38C Information required to accompany application for renewal of registration 138

38D Requirements for renewal of registration 139

38E Conditional registration 140

38F Change in operation of registered food premises 142

38G Change of food safety program type 143

39 Inspection of premises by registration authority 143

39A Registration etc. may be made despite minor defects 144

39B Offence to fail to comply with registration condition 145

39C Contravention of section 34 of the Meat Industry Act 1993 146

40 Certificates of registration 146

40A Certificates must be shown on demand 147

40B Minister may specify period of registration 147

40C Period for which registration lasts 148

40D Revocation or suspension of registration 149

40E Secretary may direct council to revoke or suspend a registration 150

40F Cancellation of registration 150

41A Registration fees 151

42 Appeal 152

43 Records of registration 153

43A Transitional provision 154

Division 4—Single notification or registration scheme 154

43B Application of Division to areas of land not within municipal district 154

43C Single notification or registration scheme 155

43D Principal premises of food business 156

43E Declaration of requirements for notification or registration 157

43F Notification or registration under the single notification or registration scheme 157

43G Certificate of registration 159

43H Declaration of requirements for statement of trade 159

43I Statement of trade 160

Division 5—Display of information 162

43J Declaration of requirements to display registration information 162

43K Offence for proprietor of food business to fail to comply with declaration 163

43L Notice of intention to declare or vary requirements to display information 164

Part VII—Emergency powers 165

44 Making of order 165

44A Nature of order 165

44B Special provisions relating to recall orders 167

44C Manner of making orders 167

44D Compensation 168

44E Failure to comply with emergency order 169

44F Person has no right to be heard before order made 170

44G Secretary may obtain enforcement order 170

Part VIII—Legal proceedings 171

Proceedings for offences 171

45 Proceedings for offences 171

45AA Responsible agency for the Crown 172

45AB Proceedings against successors to public bodies 172

45AC Power to bring proceedings 173

45A Burden of proof as to statements on packages etc. 173

45B Prosecutions 173

46 Right of accused to have third person before court 174

46A Analysis is not necessary to conviction 177

47 Power of court to order further analysis 177

48 Power of court to order forfeiture 177

49 Liability of accused for certain costs and expenses 179

50 Evidentiary provisions 179

50AA Evidentiary certificate signed by the Secretary DH 182

50AAB Evidentiary certificate signed by the Secretary DEECA or the chief executive officer of DFSV or PrimeSafe 184

50AB Evidentiary certificate signed by chief executive officer of a council 185

50AC Evidence of signatures 186

50A Alternative verdicts for serious food offences 187

51 Offences by bodies corporate 187

51A Criminal liability of officers of bodies corporate—accessorial liability 188

51B Criminal liability of officers of bodies corporate—failure to exercise due diligence (legal burden of proof) 189

52 Offences by unincorporated bodies, partnerships etc. 192

52A Offences by employers 192

52B Liability of employees and agents 192

53 General penalty 193

53A Court may order costs and expenses 193

53B Court may order corrective advertising 193

Part VIIIA—Publication of convictions 195

53C References to appeal against conviction 195

53D Register of convictions 195

53E Publication of information on register 197

53F Information that must not be included in register 197

53G Obtaining information for inclusion in the register 198

53H Correction of register 200

53I Removal of record of conviction from register 200

53J Additional information 202

Part IX—Miscellaneous provisions 203

54 Secrecy 203

54A Confidential food information may be given to the Secretary 204

54B Confidential food information may be given to the Food Safety Council 205

54C Confidential food information may be given to a council 205

54D Confidential food information may be given to a public statutory body 205

55 Mode of service of documents and certain samples 205

56 Protection against liability 207

56A Infringements 208

57 Payment of penalties 209

58 Victorian Liquor Commission to be notified of certain matters 210

58A Delegation by council 211

58AB Delegations by Secretary DEECA, the DFSV or PrimeSafe 212

58B Matters occurring outside registration area 212

59 False and misleading statements 213

59A Destroying or damaging records 214

59B Validity and effect of notices, orders and other documents 214

59C Cost recovery in respect of failure to comply with direction or notice 215

Part X—Food Safety Council 217

60 Establishment of the Council 217

60A Functions 217

60B Powers 218

60C Members of the Council 218

60D Conditions of office of members 218

60E Procedure at meetings 219

60F Report on operations 220

60G Use of assistants 220

60H Members must not disclose confidential information 220

60I Council the successor of the Food Standards Committee 222

Part XI—Regulations 223

63 Regulations 223

63A Prescribed food standards 236

63B Limitation on power to make local laws 237

Part XII—Transitional provisions for Food (Amendment) Act 2001 239

63C

Existing orders to continue 239

63C Existing orders to continue 239

63D

Extended application of Division 3 of Part IIIA 239

63D Extended application of Division 3 of Part IIIA 239

Part XIII—Transitional and savings provisions for Part 2 of the Food Amendment (Regulation Reform) Act 2009 241

64 Definitions 241

65 Minimum record keeping 241

66 Food safety program templates 241

67 Inspections 241

68 Audits 242

69 Food safety auditors 242

70 Registration and notification of food premises 243

71 Grounds for revocation or suspension of registration or direction by the Secretary 243

72 Food (Forms and Registration) Regulations 2005 243

73 Register of convictions 243

74 First declaration under section 19C 244

75 Declarations made and exemptions granted before commencement 244

76 Transitional regulations 244

Part XIV—Transitional and savings provisions for Part 4 of Food Amendment (Regulation Reform) Act 2009 245

77 Definitions 245

78 Temporary food premises, mobile food premises or food vending machine currently registered 245

79 Temporary food premises, mobile food premises or food vending machine for which notification has been given 245

Part XV—Transitional and savings provisions 247

80 Transitional provision—Primary Industries and Food Legislation Amendment Act 2012 247

81 Transitional provision—Statute Law Amendment (Directors' Liability) Act 2013 247

82 Transitional provision—Food Amendment Act 2020 247

Schedules 249

Sch 1

Infringements 249

Schedule 1—Infringements 249

Endnotes 254

1 General information 254

2 Table of Amendments 256

3 Explanatory details 264

Version No. 118

Food Act 1984

No. 10082 of 1984

Version incorporating amendments as at

An Act to consolidate and amend the Law relating to the Preparation and Sale of Food, to make Provision for securing the Wholesomeness and Purity of and fixing Standards for Food, to prevent false or misleading packaging and labelling of Food and false or misleading advertising in connexion with Food, to amend the Health Act 1958, the Magistrates (Summary Proceedings) Act 1975 and the Health Commission Act 1977 and for other purposes.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

Part I—Preliminary

Short title

1 Short title

This Act may be cited as the Food Act 1984.

Commencement

2 Commencement

The several provisions of this Act shall come into operation on a day or on the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette.

S. 3 amended by Nos 95/1986, s. 4(1)(2), 97/1987 s. 179(1), 42/1993 s. 64(a), 13/1994 s. 10(a), 20/1995 s. 4(1), substituted by No. 14/2001 s. 3.

Objects of Act

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;

Definitions

4 Definitions

S. 4(1) substituted.[1]

(1) In this Act—

advertisement means—

(a) any words, whether written or spoken; or

(b) any pictorial representation or design; or

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;

analyst means a person authorized under section 30 to carry out analyses for the purposes of this Act;

animal includes an amphibian, bird, crustacean, fish, mollusc or reptile;

approved food safety auditor means a person holding a current certificate issued under section 19P;

S. 4(1) def. of article amended by No. 60/2012 s. 47(1).

article means—

(a) any food; or

(ab) any plant, plant product, animal, livestock product, chemical, fertiliser, stock food, soil, surface or other thing used in, or in connection with, the handling of food; or

(b) any equipment; or

(d) any labelling or advertising material used or capable of being used in or in connection with the sale of any food;

S. 4(1) def. of authorized officer amended by Nos 46/2008 s. 251, 42/2009 s. 3(a), 60/2012 s. 47(2).

authorized officer means—

(a) a person who is authorised by the Secretary or appointed by a council to be an authorized officer under section 20; or

(b) an environmental health officer appointed under section 29 of the Public Health and Wellbeing Act 2008; or

(d) a person who, under the Meat Industry Act 1993, is appointed as, or has the powers of, an inspector or is a person authorised to be an inspector by an inspection service approved under section 7 of that Act; or

(e) in relation to a food premises on land that is not part of a municipal district, the Secretary; or

(f) a person to whom, under section 19 of the Public Health and Wellbeing Act 2008, the Secretary delegates any of the functions or powers of an authorized officer under this Act;

books includes any register or other record of information and accounts or financial records (within the meaning of the Corporations Act), however compiled, recorded or stored, and also includes any document;

S. 4(1) def. of chief executive officer inserted by No. 42/2009 s. 3(g).

chief executive officer, of a council, means the person appointed by the council to be its chief executive officer or any person acting in that position;

S. 4(1) def. of component inserted by No. 42/2009 s. 43(b).

component, of a food business, means any of the following operated by the business—

(a) a fixed food premises;

(b) a temporary food premises;

(d) a food vending machine;

corresponding law means a law of another State or a Territory which the Governor in Council by Order declares to be a law that makes provision substantially similar to a provision of this Act;

S. 4(1) def. of council amended by No. 9/2020 s. 390(Sch. 1 item 43.1).

council has the same meaning as in the Local Government Act 2020, and the council means the council of the municipal district to which the provision in which the term is used applies;

S. 4(1) def. of declared authority inserted by No. 60/2012 s. 47(5).

declared authority means a person or body declared under section 4I(1);

S. 4(1) def. of declared premises repealed by No. 42/2009 s. 3(b).

S. 4(1) def. of Department amended by Nos 29/2010 s. 56(1)(a), 2/2017 s. 16(1)(a), 44/2024 s. 13(1)(a).

Department means the Department of Health;

S. 4(1) def. of DFSV inserted by No. 60/2012 s. 47(5).

DFSV means Dairy Food Safety Victoria established under Part 2 of the Dairy Act 2000;

S. 4(1) def. of Director of Consumer Affairs inserted by No. 42/2009 s. 3(g).

Director of Consumer Affairs means the person who, for the time being, is employed as Director of Consumer Affairs Victoria under the Public Administration Act 2004;

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 4A;

food business has the meaning given by section 4B;

food premises means any premises at, on or from which food is sold, or handled with the intention that it be sold, but does not include—

(a) any premises used solely for the purposes of a primary food production business, enterprise or activity; or

(b) any premises or other place declared by an Order made under section 5(3) not to be a food premises;

S. 4(1) def. of food safety assessment inserted by No. 42/2009 s. 3(g).

food safety assessment has the meaning given by section 19HA(1);

S. 4(1) def. of food safety audit inserted by No. 42/2009 s. 3(g).

food safety audit has the meaning given by section 19HA(2);

Food Safety Council means the Food Safety Council established under section 60;

food safety program has the meaning given by section 19D;

S. 4(1) def. of food safety program audit repealed by No. 42/2009 s. 3(c).

S. 4(1) def. of food safety program template substituted by No. 42/2009 s. 3(d).

food safety program template means a written document that contains a set of instructions to enable the proprietor of a food business to create a food safety program that complies with section 19D;

S. 4(1) def. of food safety program type inserted by No. 38/2020 s. 5(c).

food safety program type means—

(a) a standard food safety program; or

(b) a non-standard food safety program that is not a QA food safety program; or

Food Safety Standards means the standards contained in Chapter 3 of the Food Standards Code;

food safety supervisor has the meaning given by section 19G;

S. 4(1) def. of Food Standards Code amended by No. 44/2024 s. 13(4).

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;

S. 4(1) def. of food transport vehicle amended by No. 42/2009 s. 43(a).

food transport vehicle means a vehicle used for the transport of food for sale other than a water transport vehicle;

food vending machine means a machine or mechanical device used or capable of being used for selling food without any intervention or attention by or on behalf of the seller at the time of the sale;

S. 4(1) def. of handling amended by No. 60/2012 s. 47(3).

handling, in relation to food, includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or displaying of food;

Section 4C(3) clarifies that handling of food includes primary food production.

hazard means a biological, chemical, radiological or physical agent or factor that may adversely affect the health of any person;

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;

S. 4(1) def. of livestock product inserted by No. 60/2012 s. 47(5).

livestock product has the same meaning as in section 3(1) of the Livestock Disease Control Act 1994;

S. 4(1) def. of mobile food premises inserted by No. 42/2009 s. 3(g).

mobile food premises means a food premises that is a vehicle;

S. 4(1) def. of non-standard food safety program inserted by No. 42/2009 s. 3(g).

non-standard food safety program means a food safety program that is not a standard food safety program;

S. 4(1) def. of online portal inserted by No. 38/2020 s. 3.

online portal means the electronic registration system—

(a) maintained by the Secretary; and

(b) used by a registration authority to receive and record information relating to food premises including the following—

(i) any application for the registration of food premises;

(ii) any renewal of registration of food premises;

(iii) any notification of the operation of food premises;

(iv) any information relating to the registration and compliance of food premises;

package includes any container or wrapper in or by which food intended for sale is wholly or partly encased, covered, enclosed, contained or packed and, in the case of food carried or sold or intended to be carried or sold in more than one package, includes every such package;

person includes a body or association (corporate or unincorporate) and a partnership;

S. 4(1) def. of plant product inserted by No. 60/2012 s. 47(5).

plant product has the same meaning as in the Plant Biosecurity Act 2010;

S. 4(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 66.1).

police officer has the same meaning as in the Victoria Police Act 2013;

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

(d) a vehicle (other than a food transport vehicle while it is engaged in the transport of food);

prepare includes manufacture, process and treat;

prescribed means prescribed by this Act, the regulations or a prescribed food standard;

prescribed food standard has the meaning given by section 63A;

primary food production has the meaning given by section 4C;

S. 4(1) def. of primary production and processing standard inserted by No. 60/2012 s. 47(5).

primary production and processing standard means a standard contained in Chapter 4 of the Food Standards Code;

S. 4(1) def. of PrimeSafe inserted by No. 60/2012 s. 47(5).

PrimeSafe means the Authority established under Part 6 of the Meat Industry Act 1993;

S. 4(1) def. of principal premises inserted by No. 42/2009 s. 43(b).

principal premises, of a food business, has the meaning given by section 43D;

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 statutory body means any body created by, or under the authority of, an Act of the Commonwealth or of a State or Territory for a public purpose;

S. 4(1) def. of QA food safety program inserted by No. 42/2009 s. 3(g).

QA food safety program has the meaning given by section 19DD(2);

recall order means an order under Part VII requiring the recall or disposal, or both, of any food;

S. 4(1) def. of registered medical practitioner amended by No. 97/2005 s. 182(Sch. 4 item 21), substituted by No. 13/2010 s. 51(Sch. item 24).

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

S. 4(1) def. of registration authority amended by No. 42/2009 s. 3(e).

registration authority means the relevant registration authority, as determined under section 35;

sample includes part of a sample;

S. 4(1) def. of Secretary substituted by Nos 29/2010 s. 56(1)(b), 60/2012 s. 47(4), amended by Nos 2/2017 s. 16(1)(b), 38/2020 s. 5(a), 44/2024 s. 13(1)(b).

Secretary—

(a) in paragraph (a) of the definition of authorized officer in section 4(1) of Part 1 and in Part II, Part III, Part IIIA (except section 19BB(5), (6) and (7)), Part IV (except section 20(5)), Part VIII and Part IX (except sections 56(1) and 59C(3)) means the Secretary DH or the Secretary DEECA; and

(b) in any other provision in this Act means the Secretary DH;

S. 4(1) def. of Secretary DEECA inserted by No. 44/2024 s. 13(2).

Secretary DEECA means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Energy, Environment and Climate Action;

S. 4(1) def. of Secretary DH inserted by No. 44/2024 s. 13(2).

Secretary DH means the Department Head (within the meaning of the Public Administration Act 2004) of the Department;

S. 4(1) def. of Secretary DH inserted by No. 60/2012 s. 47(5), amended as Secretary DHHS by No. 2/2017 s. 16(1)(c), repealed by No. 44/2024 s. 13(3).

S. 4(1) def. of Secretary DPI inserted by No. 60/2012 s. 47(5), substituted as Secretary DEDJTR by No. 2/2017 s. 16(1)(d), repealed by No. 38/2020 s. 5(b).

S. 4(1) def. of Secretary DJPR inserted by No. 38/2020 s. 5(c), repealed by No. 44/2024 s. 13(3).

sell includes—

(a) barter, offer or attempt to sell; and

(b) receive 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 in hospitals or prisoners in prisons; and

(p) sell for the purpose of resale;

service, in relation to a food vending machine, means stock or replenish that machine with food;

S. 4(1) def. of standard food safety program amended by No. 42/2009 s. 3(f).

standard food safety program has the meaning given by section 19DC(1);

substance includes a mixture or compound;

S. 4(1) def. of temporary food premises inserted by No. 42/2009 s. 3(g).

temporary food premises means a food premises that is—

(a) a tent, stall or other structure that is not permanently fixed to a site; or

(b) a permanent structure not owned or leased by the food business that operates the premises and in which food is handled for sale or from which food is sold by that business on an occasional basis only;

therapeutic good has the same meaning as it has in the Therapeutic Goods Act 1989 of the Commonwealth;

this Act includes the regulations;

unsafe has the meaning given by section 4D;

unsuitable has the meaning given by section 4E;

vehicle means any means of transport, whether self-propelled or not, and whether used on land or sea or in the air.

S. 4(1) def. of water transport vehicle inserted by No. 42/2009 s. 43(b).

water transport vehicle means a vehicle used by a private water carter to transport water that is intended for human consumption or for purposes connected with human consumption (such as the preparation of food or the making of ice for consumption or for the preservation of unpackaged food) whether or not the water is used for other purposes.

S. 4(1A) inserted by No. 46/1998 s. 7(Sch. 1, amended by Nos 108/2004 s. 117(1) (Sch. 3 item 81.1), 29/2010 s. 56(2), repealed by No. 2/2017 s. 16(2).

S. 4(2) amended by No. 36/1991 s. 4(c), repealed by No. 14/2001 s. 4(2).

(3) For the purposes of this Act—

S. 4(3)(a) substituted by No. 14/2001 s. 4(3).

(a) food or equipment that is displayed for the purpose of being offered as a prize or reward or given away for the purpose of advertisement or in the furtherance of trade or business is taken to have been displayed for sale by the owner of the food or equipment;

S. 4(3)(b) repealed by No. 14/2001 s. 4(3),
new s. 4(3)(b) inserted by No. 49/2002 s. 13.

(b) food that is donated to a person who distributes food for a charitable or benevolent purpose is not to be taken to be food that was given away for the purpose of advertisement or in furtherance of trade or business;

S. 4(3)(c) amended by No. 14/2001 s. 4(4).

(c) food which is exposed or deposited in any premises for the purpose of being so offered as a prize or reward or given away is taken to have been exposed for sale by the occupier of the premises.

(4) Where a word or phrase is given a particular meaning in this Act, other parts of speech and grammatical forms of that word or phrase have, unless the contrary intention appears, corresponding meanings.

(5) Where a provision of this Act is with respect to a particular subject-matter inconsistent with a provision of any other Act, the provision of this Act shall prevail and the provision of that other Act is, to the extent of the inconsistency, of no force or effect.

(6) Where a provision of a regulation made under this Act is with respect to a particular subject-matter inconsistent with a provision of a regulation, rule or by-law made under any other Act, the provision of the regulation made under this Act shall prevail and that other provision is, to the extent of the inconsistency, of no force or effect.

S. 4A inserted by No. 14/2001 s. 5.

Meaning of food

4A Meaning of *food*

(1) In this Act, food includes—

(a) any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared);

(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);

(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;

(d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum;

(e) any substance or thing declared to be a food under a declaration in force under section 3B of the Australia New Zealand Food Authority Act 1991 of the Commonwealth.

(2) A substance, thing, chewing gum or ingredient or additive in chewing gum described in subsection (1) is food regardless of whether or not it is in a condition fit for human consumption.

(3) However, food does not include a therapeutic good.

(4) To avoid doubt, food may include live animals and plants.

S. 4B inserted by No. 14/2001 s. 5.

Meaning of food business

4B Meaning of *food business*

In this Act, food business means a business, enterprise or activity (other than a business, enterprise or activity that is primary food production) that involves—

(a) the handling of food intended for sale; or

(b) the sale of food, regardless of whether the business, enterprise or activity concerned is of a commercial, charitable or community nature or whether it involves the handling or sale of food on one occasion only.

S. 4C inserted by No. 14/2001 s. 5.

Meaning of primary food production

4C Meaning of *primary food production*

(1) In this Act, primary food production means the growing, raising, cultivation, picking, harvesting, collection or catching of food, and includes the following—

(a) the transportation or delivery of food on, from or between the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught;

(b) the packing, treating (for example, washing) or storing of food on the premises on which it was grown, raised, cultivated, picked, harvested, collected or caught;

(c) the storage of food in a silo that is not connected with a food processing operation and the transportation or delivery of food from, between or to such silos;

(d) the sale of livestock at saleyards and the transportation of livestock to and from saleyards;

(e) any other food production activity that is regulated by or under an Act prescribed by the regulations for the purposes of this subsection.

(2) However, primary food production does not include—

(a) any process involving the substantial transformation of food (for example, manufacturing or canning), regardless of whether the process is carried out on the premises on which the food was grown, cultivated, picked, harvested, collected or caught; or

(b) the sale or service of food directly to the public; or

Section 4C(2)(c) enables regulations to be made prescribing food production activities that are not included in the definition of primary food production. Such a regulation might be made, for example, to prescribe a food production activity in relation to which significant and unmanaged food safety hazards have been identified.

S. 4C(3) inserted by No. 60/2012 s. 48.

(3) To avoid doubt, references in this Act to the handling of food includes primary food production.

S. 4D inserted by No. 14/2001 s. 5.

Meaning of unsafe food

4D Meaning of *unsafe* food

(1) For the purposes of this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming—

(a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and

(b) nothing happened to it after that particular time and before being consumed by the person that would prevent it being used for its reasonable intended use; and

(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.

S. 4E inserted by No. 14/2001 s. 5.

Meaning of unsuitable food

4E Meaning of *unsuitable* food

(1) For the purposes of this Act, food is unsuitable if it is food that—

(a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use; or

(b) contains any damaged, deteriorated or perished substance that affects its reasonable intended use; or

(c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption; or

(d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.

(2) However, food is not unsuitable for the purposes of this Act merely because—

(a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical; or

(b) when it is sold for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code; or

(c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code; or

(d) it contains any matter or substance that is permitted by the Food Standards Code.

(3) In this section, slaughter of an animal includes the killing of an animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food.

S. 4F inserted by No. 14/2001 s. 5, amended by No. 42/2009 s. 4.

Reference to proprietors of premises

4F Reference to proprietors of premises

A reference to the proprietor of a food premises or premises is a reference to the proprietor of the food business that operates at, on or from the premises.

S. 4G inserted by No. 14/2001 s. 5, substituted by No. 42/2009 s. 44.

Food vending machines deemed to be food premises

4G Food vending machines deemed to be food premises

For the purposes of this Act a food vending machine is deemed to be a food premises.

S. 4H inserted by No. 42/2009 s. 5.

Reference in Food Standards Code to appropriate enforcement agency

4H Reference in Food Standards Code to appropriate enforcement agency

For the purposes of any provision of this Act which applies the Food Standards Code, a reference in Standard 3.1.1 of that code to an appropriate enforcement agency is taken to be a reference to the registration authority.

S. 4I inserted by No. 60/2012 s. 49.

Declared authority for the purposes of references in Chapter 4 of the Food Standards Code

4I Declared authority for the purposes of references in Chapter 4 of the Food Standards Code

(1) The Minister, by order published in the Government Gazette, may declare a person or body or a person or body belonging to a specified class of person or body to be a declared authority for the purposes of carrying out any function or duty or exercising any power of an Authority, authority or relevant authority referred to in a specified primary production and processing standard or any specified provision of that standard.

(2) An order made under subsection (1) may be made so as to be limited in respect of time or circumstances including in respect of—

(a) a person or a person belonging to a specified class of person; or

(b) a premises or a premises belonging to a specified class of premises.

(3) An order under this section takes effect on the date that the order is published in the Government Gazette or on any later date specified in the order.

(4) For the purposes of any provision of this Act that applies the Food Standards Code, a reference in a primary production and processing standard or any provision of that standard to an "Authority", "authority" or "relevant authority" is taken to be a reference to a "declared authority" declared in an order under subsection (1) for the purposes of that primary production and processing standard or that provision of that standard (as the case requires).

Orders

5 Orders

(1) The Governor in Council may by Order published in the Government Gazette—

(a) declare a law of a State or Territory of the Commonwealth of Australia to be a corresponding law for the purposes of this Act; and

S. 5(1)(b) repealed by No. 14/2001 s. 6.

(2) An Order made by the Governor in Council under subsection (1) may by like Order be amended, varied or revoked.

S. 5(3) substituted by No. 98/1997 s. 4(1).

(3) The Minister may make an order declaring—

(a) any premises or part of a premises or any other place not to be a food premises for the purposes of this Act.

S. 5(3)(b) repealed by No. 14/2001 s. 6.

S. 5(3A) inserted by No. 98/1997 s. 4(1).

(3A) The Minister may, by order published in the Government Gazette, exempt from this Act or any provision of this Act—

(a) any food premises or class of food premises.

S. 5(3A)(b) repealed by No. 14/2001 s. 6.

S. 5(4) amended by No. 98/1997 s. 4(2).

(4) An order made by the Minister under subsection (3) or (3A)—

(a) may be made so as to be limited in respect of time or circumstances; and

(b) may by like order be amended, varied or revoked.

S. 5(5) inserted by No. 60/2012 s. 50, amended by Nos 2/2017 s. 16(3)(a), 38/2020 s. 6, 44/2024 s. 14(a).

(5) The Secretary DH or the Secretary DEECA, by order published in the Government Gazette, may exempt a person or a person belonging to a specified class of person from complying with a specified requirement of the Food Standards Code.

S. 5(6) inserted by No. 60/2012 s. 50, amended by Nos 2/2017 s. 16(3)(b), 38/2020 s. 6, 44/2024 s. 14(b).

(6) An order under subsection (5) may be made by the Secretary DEECA only in respect of a requirement in a primary production and processing standard.

S. 5(7) inserted by No. 60/2012 s. 50.

(7) An order under subsection (5)—

(a) may be made so as to be limited in respect of time or circumstances; and

(b) may be unconditional or subject to any condition specified in the order; and

(c) takes effect on the date that the order is published in the Government Gazette or on any later date specified in the order; and

(d) may by like order be amended, varied or revoked.

S. 6 substituted by No. 46/2008 s. 252.

Act binds the Crown

6 Act binds the Crown

(1) This Act binds the Crown—

(a) in right of the State of Victoria; and

(b) to the extent that the legislative power of the Parliament permits, in all its other capacities.

(2) To avoid doubt, the Crown is a body corporate for the purposes of this Act.

S. 6A inserted by No. 14/2001 s. 7.

Application of Act to primary food production

6A Application of Act to primary food production

S. 6A(1) amended by No. 60/2012 s. 51(1).

(1) Part VI does not apply to or in respect of primary food production.

S. 6A(2) amended by No. 42/2009 s. 6, repealed by No. 60/2012 s. 51(2).

S. 6B inserted by No. 14/2001 s. 7, substituted by No. 46/2003 s. 58.

Application of Act to water suppliers and water storage managers

6B Application of Act to water suppliers and water storage managers

(1) The following provisions of this Act do not apply to, or in relation to, a water supplier or water storage manager in respect of the supply of water for human consumption through a reticulated water system—

(a) sections 8, 8A, 10, 10A, 11(1), 12(1), 13, 14 and 15;

(b) section 16 to the extent to which it requires compliance with the requirements of the Food Safety Standards;

(2) In this section—

water storage manager means—

(a) a water storage manager within the meaning of section 3 of the Safe Drinking Water Act 2003; or

(b) a person that is employed or engaged by such a body to supply water for human consumption;

water supplier means—

(a) a water supplier within the meaning of section 3 of the Safe Drinking Water Act 2003; or

(b) a body that is constituted by or under an Act and that has as one of its functions the supply of water for human consumption; or

(d) any body or person prescribed by the regulations for the purposes of this section.

Extension to places outside municipal districts

7 Extension to places outside municipal districts

S. 7(1) amended by Nos 10262 s. 4, 98/1997
s. 16(a).

(1) All or any of the provisions of this Act may be extended by proclamation of the Governor in Council to any place not situated in a municipal district and in every such case the Secretary shall have and may exercise in respect of such place all the powers duties and authorities of councils under this Act.

(2) A proclamation made by the Governor in Council under subsection (1) may by like proclamation be amended, varied or revoked.

Part 1A

(Heading and ss 7A–7E) inserted by No. 42/2009 s. 7.

Part 1A (Heading and ss 7A–7E) inserted by No. 42/2009 s. 7.

Part IA—Administration and reporting

S. 7A inserted by No. 42/2009 s. 7.

7A Role of councils

The role of a council under this Act is to—

(a) carry out the powers and functions vested in it under this Act in accordance with the requirements of this Act;

(b) promote the objectives of this Act;

S. 7A(d) amended by No. 43/2012 s. 3(Sch. item 19).

(d) ensure, to the extent appropriate, that the administration of this Act by the council is consistent with the administration of this Act throughout Victoria by other councils;

S. 7A(e) inserted by No. 42/2009 s. 45.

(e) participate in the state-wide system for the single notification or registration of temporary food premises, mobile food premises or food vending machines.

S. 7B inserted by No. 42/2009 s. 7.

7B Role of Department

The role of the Department under this Act is to—

(a) facilitate the exercise of the powers and functions of the Secretary under this Act;

(b) promote the objects of this Act and the consistent administration of this Act by providing information and guidance to councils, authorized officers and food safety auditors;

S. 7BA (Heading) amended by Nos 2/2017 s. 16(4), 38/2020 s. 7(1), 44/2024 s. 15(1).

S. 7BA inserted by No. 60/2012 s. 52, amended by Nos 2/2017 s. 16(5)(a), 38/2020 s. 7(2)(a), 44/2024 s. 15(2)(a).

7BA Role of Department of Energy, Environment and Climate Action

The role of the Department of Energy, Environment and Climate Action under this Act is to—

S. 7BA(a) amended by Nos 2/2017 s. 16(5)(b)(c), 38/2020 s. 7(2)(b), 44/2024 s. 15(2)(b).

(a) facilitate the exercise of the powers and functions of the Secretary DEECA in relation to primary food production and related activities that, under arrangements with the Secretary DH, are to be carried out or exercised by the Secretary DEECA;

(b) promote the objects of this Act in relation to primary food production and related activities.

S. 7C inserted by No. 42/2009 s. 7.

Annual report on food regulation

7C Annual report on food regulation

(1) For each calendar year the Department must publish an annual report on food regulation.

(2) The annual report must contain the following information—

(a) statistics relating to the registration of food premises under this Act by the Secretary and each council including—

(i) the number of newly registered food premises;

(ii) the number of food premises for which registration was renewed;

(iii) the number of registrations under each class of registration;

(iv) the number of food premises for which registration under this Act was revoked or suspended;

S. 7C(2)(ab) inserted by No. 42/2009 s. 46.

(ab) statistics relating to the registration of food businesses operating from temporary food premises, mobile food premises or food vending machines;

(b) statistics relating to the analysis of food samples submitted by each council under section 32;

(i) the number and nature of infringement notices issued;

(ii) the number of prosecutions and the nature of the alleged offences;

(iii) the number of cases that resulted in either a conviction or a finding of guilt;

(iv) the nature of any sentences or other orders imposed by the court;

(d) a copy of any direction given by the Minister under section 7E and the action taken by councils in response to the direction.

S. 7D inserted by No. 42/2009 s. 7.

Information required to be provided by councils

7D Information required to be provided by councils

(1) The Secretary may, by notice published in the Government Gazette, declare—

(a) the information that a council is required to provide to the Department relating to the administration of this Act; and

(b) the intervals at which the information is required to be provided; and

(2) Before making a declaration under subsection (1), or making a substantial amendment to the declaration, the Secretary must consult with a body that represents local government.

(3) A council must comply with a declaration made under subsection (1).

S. 7E inserted by No. 42/2009 s. 7.

Direction by the Minister

7E Direction by the Minister

(1) The Minister may give a written direction to a council, or the chief executive officer of the council, in relation to any matter concerning the administration of this Act by the council.

(2) The Minister may give a written direction to a class of councils, or each chief executive officer of a class of councils, in relation to any matter concerning the administration of this Act by the councils.

(3) The Minister may only give a direction under this section if the Minister considers that the direction—

(a) is in the public interest; and

(b) will promote the objectives of this Act or the consistent administration of this Act.

(4) A direction under subsection (1) must not be given in relation to the decision under this Act by a council or an authorized officer with respect to a particular food premises or a particular proprietor.

(5) Unless the Minister considers that a direction is required as a matter of urgency, before giving a direction under this section, the Minister must ensure that—

(a) if the direction is to be given under subsection (1), the council or the chief executive officer has been provided with a draft of the direction and been given an opportunity to comment; or

(b) if the direction is to be given under subsection (2), either—

(i) each council or chief executive officer has been provided with a draft of the direction and been given an opportunity to comment; or

(ii) a body that represents local government has been provided with a draft of the direction and been given an opportunity to comment.

S. 7E(6) amended by No. 9/2020 s. 390(Sch. 1 item 43.2).

(6) If a council, or the chief executive officer of a council, is given a direction under subsection (1), a copy of the direction must be published in the annual report required to be published by the council under section 98 of the Local Government Act 2020.

Pt 2 (Heading and ss 8–17) amended by Nos 95/1986 s. 6, 36/1991 s. 4(d)–(h), 40/1993(Sch. 2 item 4.1), 13/1994 s. 5, substituted as Pt 2
(Heading and ss 8–17H) by No. 14/2001 s. 8.

Part II—Offences relating to food

Division 1—Serious offences relating to food

S. 8 substituted by No. 14/2001 s. 8.

Knowingly handling food in unsafe manner

8 Knowingly handling 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.

Note to s. 8 inserted by No. 13/2013 s. 24(1).

S. 8A inserted by No. 14/2001 s. 8.

Handling food in unsafe manner in other circumstances

8A Handling food in unsafe manner in other circumstances

(1) 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.

Note to s. 8A inserted by No. 13/2013 s. 24(1).

S. 9 substituted by No. 14/2001 s. 8.

Knowingly selling unsafe food

9 Knowingly selling unsafe food

(1) A person must not sell food that the person knows is unsafe.

Note to s. 9 inserted by No. 13/2013 s. 24(1).

S. 9A inserted by No. 14/2001 s. 8.

Sale of unsafe food in other circumstances

9A Sale of unsafe food in other circumstances

(1) A person must not sell food that the person ought reasonably to know is unsafe.

Note to s. 9A inserted by No. 13/2013 s. 24(1).

S. 10 substituted by No. 14/2001 s. 8.

Knowingly falsely describing food

10 Knowingly falsely describing 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.

(2) A person must not sell food that the person knows is falsely described and will, or is likely to, cause physical harm to a consumer of the food who relies on the description.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and is liable to a penalty not exceeding—

Note to s. 10 inserted by No. 13/2013 s. 24(2).

S. 10A inserted by No. 14/2001 s. 8.

10A

Falsely describing food in other circumstances

10A Falsely describing food in other circumstances

(1) 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.

(2) A person must not sell food that the person ought reasonably to know is falsely described and is likely to cause physical harm to a consumer of the food who relies on the description.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and is liable to a penalty not exceeding—

Note to s. 10A inserted by No. 13/2013 s. 24(2).

Division 2—Other offences relating to food

S. 11 substituted by No. 14/2001 s. 8.

Handling and sale of unsafe food

11 Handling and sale of unsafe food

(1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsafe.

(2) A person must not sell food that is unsafe.

Note to s. 11 inserted by No. 13/2013 s. 24(2).

S. 12 substituted by No. 14/2001 s. 8.

Handling and sale of unsuitable food

12 Handling and sale of unsuitable food

(1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsuitable.

(2) A person must not sell food that is unsuitable.

(3) For the purposes of this section, it is immaterial whether the food concerned is safe.

Note to s. 12 inserted by No. 13/2013 s. 24(2).

S. 13 substituted by No. 14/2001 s. 8.

Misleading conduct relating to sale of food

13 Misleading conduct relating to sale of food

S. 13(1) amended by No. 2/2017 s. 5.

(1) Despite anything to the contrary in Part IIA, 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.

S. 13(2) amended by No. 2/2017 s. 5.

(2) Despite anything to the contrary in Part IIA, 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.

S. 13(3) amended by No. 2/2017 s. 5.

(3) Despite anything to the contrary in Part IIA, 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.

(4) Nothing in subsection (2) or (3) limits the generality of subsection (1).

Note to s. 13 inserted by No. 13/2013 s. 24(3).

Section 51B applies to an offence against subsection (1), (2) or (3).

S. 14 substituted by No. 14/2001 s. 8.

Sale of food not complying with purchaser's demand

14 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.

Note to s. 14(1) inserted by No. 13/2013 s. 24(4).

(2) For the purposes of this section, it is immaterial whether the food concerned is safe.

S. 15 substituted by No. 14/2001 s. 8.

Sale of unfit equipment or packaging or labelling material

15 Sale of unfit equipment or packaging or labelling material

(1) A person must not sell equipment that if used for the purposes for which it was designed or intended to be used—

(a) would render or be likely to render food unsafe; or

(b) would put other equipment, or would be likely to put other equipment, in such a condition that, if the other equipment were used for the purposes for which it was designed or intended to be used, it would render, or be likely to render, food unsafe.

(2) A person must not sell packaging or labelling material that if used for the purposes for which it was designed or intended to be used would render or be likely to render food unsafe.

Note to s. 15 inserted by No. 13/2013 s. 24(2).

S. 16 substituted by No. 14/2001 s. 8.

Compliance with Food Standards Code

16 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.

Note to s. 16(1) inserted by No. 42/2009 s. 8.

Under section 37, a person complies with the requirements of the Food Standards Code relating to notification if an application for the registration of a food premises is made, or notification of its operation is given, in accordance with Part VI.

(2) A person must not sell any food that does not comply with any requirement of the Food Standards Code that relates to the food.

(3) A person must not sell or advertise any food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code.

(4) A person must not sell or advertise for sale any food in a manner that contravenes a provision of the Food Standards Code.

S. 16(5) inserted by No. 60/2012 s. 53.

(5) A person does not contravene any provision of this section by reason only of failing to comply with an applicable requirement of the Food Standards Code if the person is exempted from compliance with that requirement by an order made under section 5(5).

Note to s. 16 inserted by No. 13/2013 s. 24(5).

Section 51B applies to an offence against subsection (1), (2), (3) or (4).

S. 17 substituted by No. 14/2001 s. 8.

Proprietor's name to be affixed to premises

17 Proprietor's name to be affixed to premises

(1) The proprietor of a food business must ensure that his, her or its name is prominently displayed on any food premises used in connection with the food business.

10 penalty units.

Note to s. 17(1) inserted by No. 13/2013 s. 24(6).

Section 51A applies to an offence against this subsection.

(2) A person who sells any food from any premises on which the name of any other person appears under subsection (1) must be taken to have sold the food as the agent of that other person, unless the contrary is proved.

S. 17A inserted by No. 14/2001 s. 8.

17A

False descriptions of food

17A False descriptions of food

S. 17A(1) amended by No. 2/2017 s. 6.

(1) For the purposes of this Part and despite anything to the contrary in Part IIA, food that is falsely described includes food to which any one or more of the following paragraphs applies—

(a) the food is represented as being of a particular nature or substance for which there is a prescribed standard under the Food Standards Code and the food does not comply with that prescribed standard;

(b) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance in a quantity or proportion that significantly diminishes its food value or nutritive properties as compared with food of the represented nature or substance;

(c) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance of lower commercial value than food of the represented nature or substance;

(d) the food is represented as being of a particular nature or substance and a constituent of the food has been wholly or partly removed so that its properties are diminished as compared with food of the represented nature or substance;

(e) any word, statement, device or design used in the packaging or labelling of the food, or in an advertisement for the food, would create a false impression as to the nature or substance of the food, or the commercial value of the food, in the mind of a reasonable person;

(f) the food is not of the nature or substance represented by the manner in which it is packaged, labelled or offered for sale.

(2) Without limiting the application of subsection (1) of this section to sections 10(2) and 10A(2), food is falsely described for the purposes of sections 10(2) and 10A(2) if it is supplied in response to a purchaser's request for a particular type of food, or a food that does not contain a particular ingredient, and the food is not of that type or contains that ingredient.

S. 17B inserted by No. 14/2001 s. 8.

17B

Application of provisions outside jurisdiction

17B Application of provisions outside jurisdiction

Except as provided in section 17D, for the purposes of a provision of this Part, it does not matter that the food concerned was sold or intended for sale outside Victoria.

See section 17D for a defence in relation to food intended for export.

Division 3—Defences

S. 17C inserted by No. 14/2001 s. 8.

17C

Defence relating to publication of advertisements

17C Defence relating to publication of advertisements

(1) In any proceedings for an offence under this Part in relation to the publication of an advertisement, it is a defence for a person to prove that the person carried on the business of publishing or arranging for the publication of advertisements and that the person published or arranged for the publication of the advertisement in question in the ordinary course of that business.

(2) Subsection (1) does not apply if the person—

(a) should reasonably have known that the publication of the advertisement was an offence; or

(b) had previously been informed in writing by the Secretary 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.

S. 17D inserted by No. 14/2001 s. 8.

17D

Defence in respect of food for export

17D 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 (if any) 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 Victoria.

S. 17E inserted by No. 14/2001 s. 8.

17E

Defence of due diligence

17E Defence of due diligence

(1) In any proceedings for an offence under this Part, it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence by the person or by another person under the person's control.

(2) Without limiting the ways in which a person may satisfy the requirements of subsection (1), a person satisfies those requirements if it is proved—

(a) that the commission of the offence was due to—

(i) an act or default of another person; or

(ii) reliance on information supplied by another person; and

(b) that—

(i) the person carried out all such checks of the food concerned as were reasonable in all the circumstances; or

(ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the person; and

(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; and

(e) that the person did not know and had no reason to suspect at the time of commission of the alleged offence that the person's act or omission would constitute an offence under the relevant section.

(3) In subsection (2)(a), another person does not include a person who was—

S. 17E(3)(a) amended by No. 68/2009 s. 97(Sch. item 59.1(a)).

(a) an employee or agent of the accused; or

S. 17E(3)(b) amended by No. 68/2009 s. 97(Sch. item 59.1).

(b) in the case of an accused that is a body corporate, a director, employee or agent of the accused.

(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, the person complied with a food safety program for the food business; 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 was based on Australian national or international standards, codes or guidelines designed for that purpose; and

(ii) documented in some manner.

S. 17F inserted by No. 14/2001 s. 8, amended by No. 68/2009 s. 97(Sch. item 59.2).

17F

Defence of mistaken and reasonable belief not available

17F Defence of mistaken and reasonable belief not available

In any proceedings for an offence under Division 2, it is no defence that the accused had a mistaken but reasonable belief as to the facts that constituted the offence.

S. 17G inserted by No. 14/2001 s. 8.

17G

Defence in respect of handling food

17G Defence in respect of handling food

In any proceedings for an offence under section 8, 8A, 11(1) or 12(1), it is a defence if it is proved that the person caused the food to which the offence relates to be destroyed or otherwise disposed of immediately after the food was handled in the manner that was likely to render it unsafe or unsuitable.

S. 17H inserted by No. 14/2001 s. 8.

17H

Defence in respect of sale of unfit equipment or packaging or labelling material

17H Defence in respect of sale of unfit equipment or packaging or labelling material

In any proceedings for an offence under section 15(1) or (2), it is a defence if the person proves that the person reasonably believed that the equipment or material concerned was not intended for use in connection with the handling of food.

Pt 2A (Headings and ss 18–18H) inserted by No. 2/2017 s. 4.

Part IIA—Kilojoule labelling scheme

Division 1—Definitions

New s. 18 inserted by No. 2/2017 s. 4.

Definitions

18 Definitions

For the purposes of this Part—

chain food premises has the meaning given in section 18A;

chain supermarket has the meaning given in section 18B;

floor area in relation to a supermarket premises means the continuous internal floor area of the supermarket premises that is used to display items available for sale to consumers and excludes any part of the floor area available for the consumption of food at the supermarket premises;

food label in relation to a standard food item means, irrespective of whether or not the standard food item is listed on a menu—

(a) a price ticket attached to, or closely associated with, the standard food item; or

(b) an identifying name label attached to, or closely associated with, the standard food item;

kilojoule labelling scheme means the requirements set out in this Part regarding the display of kilojoule information about standard food items sold by certain food businesses;

menu means a list or other depiction of at least one standard food item (together with its name or price) that is printed or is in electronic form and that—

(a) appears on a board, poster, leaflet or similar thing at the food premises at which the standard food item is sold; or

(b) in the case of a drive-through facility, appears on a board, poster, leaflet or similar thing visible at or before the point of ordering the standard food item; or

proprietor of a chain food premises means—

(a) the person carrying on a food business at the chain food premises; or

(b) if the person referred to in paragraph (a) cannot be identified, the person in charge of the chain food premises;

proprietor of a chain supermarket means—

(a) the person carrying on a supermarket business at the chain supermarket; or

(b) if the person referred to in paragraph (a) cannot be identified, the person in charge of the chain supermarket;

ready-to-eat food means food that is for sale in a state in which it is ordinarily consumed;

standard food item has the meaning given in section 18C;

supermarket business means a food business which involves the sale of all of the following items of food—

(a) bread;

(b) breakfast cereal;

(d) eggs;

(e) flour;

(f) fresh fruit;

(g) fresh milk;

(h) fresh vegetables;

(i) meat;

(j) rice;

(k) sugar;

(l) food (other than any item of food that is referred to in any preceding paragraph in this definition) that is in a package;

supermarket premises means a food premises at which a supermarket business operates, other than those parts of the food premises that are a chain food premises.

S. 18A inserted by No. 2/2017 s. 4.

18A

What is a chain food premises?

18A What is a *chain food premises*?

chain food premises means a food premises (other than a supermarket premises) at which a food business—

(a) sells at least one standard food item; and

(b) operates as part of a chain of food businesses.

(2) For the purposes of this section, a food business operates as part of a chain of food businesses if—

(a) the chain of food businesses comprises of at least—

(i) 20 food premises in Victoria; or

(ii) 50 food premises in Australia, including at least one in Victoria; and

(b) at least 2 food premises referred to in paragraph (a) sell the same standard food item; and

(i) operate under franchise arrangements with a parent business; or

(ii) operate under the same trading name or brand or trade mark; or

(iii) are under common ownership or control.

S. 18B inserted by No. 2/2017 s. 4.

18B

What is a chain supermarket?

18B What is a *chain supermarket*?

chain supermarket means a supermarket premises—

(a) at which a supermarket business—

(i) sells at least one standard food item; and

(ii) operates as part of a chain of supermarket businesses; and

(b) with a floor area of over 1000 square metres.

(2) For the purposes of subsection (1), a supermarket business operates as part of a chain of supermarket businesses if—

(a) the chain of supermarket businesses comprises of at least—

(i) 20 supermarket premises in Victoria; or

(ii) 50 supermarket premises in Australia, including at least one in Victoria; and

(b) at least 2 supermarket premises referred to in paragraph (a) sell the same standard food item; and

(i) operate under franchise arrangements with a parent business; or

(ii) operate under the same trading name or brand or trade mark; or

(iii) are under common ownership or control.

S. 18C inserted by No. 2/2017 s. 4.

18C

What is a standard food item?

18C What is a *standard food item*?

standard food item means an item of ready-to-eat food that is standardised for size and content and is for sale at—

(a) at least 2 chain food premises, each operated by a food business operating in the same chain of food businesses; or

(b) at least 2 chain supermarkets, each operated by a supermarket business operating in the same chain of supermarket businesses.

(2) Despite subsection (1), standard food item does not include—

(a) nuts in the shell or raw fruit or vegetables that are usually washed or peeled or hulled by the consumer; or

(b) an alcoholic beverage; or

(c) food that is available for sale in a package on which there is a nutrition information panel within the meaning of the Food Standards Code; or

(d) a food item (which would otherwise be included in the definition of standard food item) that—

(i) is available for sale at a chain food premises or chain supermarket for a period of not more than 60 days; and

(ii) is available for sale in Victoria at—

(A) not more than 5 chain food premises, each operated by a food business operating as part of the same chain of food businesses; or

(B) not more than 5 chain supermarkets, each operated by a supermarket business operating as part of the same chain of supermarket businesses; and

(iii) was not available for sale before the period referred to in subparagraph (i) at any chain food premises or chain supermarket referred to in subparagraph (ii), as the case may be; or

(e) food that is prescribed as an exempt food item.

(3) If a number of standard food items are shown or displayed for sale as a combination, the combination is taken to be a single standard food item for the purposes of this Part.

(4) If a standard food item is shown or displayed for sale in different standard sizes such as small, medium or large, each standard size of the item of food is taken to be a separate standard food item.

Division 2—Requirement for proprietor of chain food premises to display kilojoule information

S. 18D inserted by No. 2/2017 s. 4.

18D

Requirement for proprietor of chain food premises to display kilojoule information

18D Requirement for proprietor of chain food premises to display kilojoule information

(1) The proprietor of a chain food premises must, in accordance with section 18E, display—

(a) the following statement—

"The average adult daily energy intake is 8 700 kJ."; and

(b) in relation to each standard food item sold at the chain food premises, the average energy content of the standard food item.

Penalty: 20 penalty units in the case of an individual;

100 penalty units in the case of a corporation.

(2) The average energy content of a standard food item is to be determined in accordance with Standard 1.2.8 of the Food Standards Code, rounded to the nearest 10 kilojoules.

(3) In any proceedings for an offence under this section, it is no defence that the proprietor of the chain food premises had a mistaken but reasonable belief as to the facts that constituted the offence.

(4) Despite anything to the contrary in subsection (3), in any proceedings for an offence under this section, it is a defence if it is proved that the proprietor of the chain food premises exercised all due diligence to prevent the commission of the offence by the proprietor or by a person under the proprietor's control.

S. 18E inserted by No. 2/2017 s. 4.

18E

Chain food premises—manner and location of display of kilojoule information

18E Chain food premises—manner and location of display of kilojoule information

(1) The statement required by section 18D(1)(a) must—

(b) if a standard food item is on display in or on a display cabinet, stand or area and a food label is attached to, or closely associated with, the standard food item—

(i) be in a prominent place in or on that display cabinet, stand or area; and

(ii) be in at least the same font size as the largest font size used on the food label; and

(c) if a standard food item is listed or otherwise depicted on a menu, be displayed at least once in a prominent place on the menu in at least the same font size as the largest font size used on the menu for—

(i) the name of a standard food item; or

(ii) if no name is displayed, the price of a standard food item.

(2) The average energy content of a standard food item required by section 18D(1)(b) must—

(b) be expressed in numerals followed by the abbreviation "kJ"; and

(c) if a food label is attached to, or closely associated with, the standard food item, be displayed on the food label in at least the same font size as the largest font size used on the food label for—

(i) the price of the standard food item; or

(ii) if no price is displayed, the name of the standard food item; and

(d) if the standard food item is listed or otherwise depicted on a menu—

(i) be adjacent to the standard food item on the menu; and

(ii) be in at least the same font size as the largest font size used on the menu for—

(A) the price of the standard food item; or

(B) if no price is displayed, the name of the standard food item.

Division 3—Requirement for proprietor of chain supermarket to display kilojoule labelling

S. 18F inserted by No. 2/2017 s. 4.

18F

Requirement for proprietor of chain supermarket to display kilojoule information

18F Requirement for proprietor of chain supermarket to display kilojoule information

(1) The proprietor of a chain supermarket must, in accordance with section 18G, display—

(a) the following statement—

"The average adult daily energy intake is 8 700 kJ."; and

(b) in relation to each standard food item sold at the chain supermarket, the average energy content of the standard food item or of 100 g of the standard food item.

Penalty: 20 penalty units in the case of an individual;

100 penalty units in the case of a corporation.

(2) The average energy content of a standard food item or 100 g of a standard food item is to be determined in accordance with Standard 1.2.8 of the Food Standards Code, rounded to the nearest 10 kilojoules.

(3) In any proceedings for an offence under this section, it is no defence that the proprietor of the chain supermarket had a mistaken but reasonable belief as to the facts that constituted the offence.

(4) Despite anything to the contrary in subsection (3), in any proceedings for an offence under this section, it is a defence if it is proved that the proprietor of the chain supermarket exercised all due diligence to prevent the commission of the offence by the proprietor or by a person under the proprietor's control.

S. 18G inserted by No. 2/2017 s. 4.

18G

Chain supermarket—manner and location of display of kilojoule information

18G Chain supermarket—manner and location of display of kilojoule information

(1) The statement required by section 18F(1)(a) must—

(b) if a standard food item is on display in or on a display cabinet, stand or area and a food label is attached to, or closely associated with, the standard food item—

(i) be in a prominent place in or on that display cabinet, stand or area; and

(ii) be in at least the same font size as the largest font size used on the food label; and

(i) the name of the standard food item; or

(ii) if no name is displayed, the price of the standard food item.

(2) The average energy content of a standard food item required by section 18F(1)(b) must—

(b) be expressed in numerals followed by the abbreviation "kJ"; and

(c) if a food label is attached to, or closely associated with, the standard food item, be displayed on the food label in at least the same font size as the font size used on the food label for the price or unit price of the standard food item; and

(d) if the standard food item is listed or otherwise depicted on a menu—

(i) be adjacent to the standard food item on the menu; and

(ii) be in at least the same font size as the font size used on the menu for the price or unit price of the standard food item.

Division 4—Exemptions

S. 18H inserted by No. 2/2017 s. 4.

18H

Exemptions

18H Exemptions

Sections 18D(1) and 18F(1) do not apply in relation to standard food items sold—

(a) by a food business operated by the same business operating the cinema at which the food business is located; or

(b) by a food business, or that part of a food business, that provides food catering services; or

(d) at a temporary food premises; or

(e) at a mobile food premises; or

(f) at a service station by a business selling petrol or other fuel for motor vehicles; or

(g) by a not-for-profit food business providing services delivering meals to persons in their homes; or

(h) by a prescribed food business or food premises or a prescribed class of food business or food premises.

Pt 3 (Heading and ss 18, 19) amended by Nos 10262 s. 4, 16/1986 s. 30, 57/1989 s. 3(Sch. items 79.1, 79.2), 13/1994 s. 6, 20/1995 ss 6, 7, 98/1997 ss 16(a), 17(a)–(c), 18(1)(c)(d), 14/2001 s. 9(a)–(h), 24/2003 s. 91, substituted as Pt 3 (Heading and ss 19, 19A) by No. 42/2009 s. 9.

Part III—Orders

S. 19 substituted by No. 42/2009 s. 9.

19 Orders relating to food premises

(1) This section applies if the relevant authority is satisfied from the report of an authorized officer that—

(a) a food premises is in an unclean or unsanitary condition or in a state of disrepair; or

(b) food being prepared, sold or otherwise handled at a food premises is unsafe or unsuitable; or

(c) food is prepared, sold or otherwise handled at a food premises in a manner that makes it likely the food is unsafe or unsuitable.

(2) The relevant authority may by written order direct that, within a specified time, either or both of the following things must be done—

(a) the food premises must be put into a clean and sanitary condition or be altered or improved to the satisfaction of an authorized officer;

(b) specified steps must be taken to ensure that food prepared, sold or otherwise handled at the food premises is safe and suitable.

(3) The relevant authority may in an order made under subsection (2) or in a subsequent written order direct that until the matters referred to in subsection (2) are complied with—

(a) the food premises must not be kept or used for the sale, or the handling for sale, of any food; or

(b) the food premises must not be kept or used for the preparation of food; or

(c) the food premises must not be used for a specified purpose or for the use of any specified equipment or a specified process.

(4) If an order under this section includes a direction under subsection (3)(a) or (3)(b)—

(a) in any case—

(i) the relevant authority may direct that a copy of the order be affixed to a conspicuous part of the premises in such a manner that the order can be read by a member of the public from outside the premises; and

S. 19(4)(a)(ia) inserted by No. 6/2024 s. 31(1).

(ia) the relevant authority may direct that a copy of the order be displayed at any point of sale of the food premises, whether physical or otherwise; and

S. 19(4)(a)(ib) inserted by No. 6/2024 s. 31(1).

(ib) if the food business has an Internet site, the relevant authority may direct that a copy of the order be published on the food business's Internet site; and

S. 19(4)(a)(ii) amended by No. 6/2024 s. 31(2).

(ii) the relevant authority may, by notice published in a newspaper, on the Internet site of the relevant authority or by any other means, inform the general public that the order has been made and the terms of the order;

S. 19(4)(b) amended by Nos 60/2012 s. 54(1), 6/2024 s. 31(3).

(b) if the relevant authority is not the Secretary, the relevant authority must notify the Secretary of the making of the order;

S. 19(4)(ba) inserted by No. 6/2024 s. 31(4).

(ba) the Secretary may publish on the Department's Internet site a copy of the order;

(c) if the relevant authority is not the registration authority for the premises, the relevant authority must notify the registration authority of—

(i) the making of the order; and

(ii) any appeal made under section 19BA against the order and the outcome of the appeal.

Under section 43(2) the record of registration maintained by the registration authority in respect of a food premises must include the details of any order in force under this section that includes a direction under subsection (3)(a) or (b) in relation to the premises.

(5) An order under this section takes effect—

S. 19(5)(a) amended by No. 6/2024 s. 31(5).

(a) when it is given to or served on the proprietor of the food premises, including by sending it by electronic communication to the proprietor at the proprietor's usual or last known electronic address; or

(b) if the name and address of the proprietor is unknown, when it is affixed to the premises.

(6) If satisfied that an order made under this section has been complied with, the relevant authority must—

(b) give written notice of the revocation of the order in the same manner in which the order was given or served.

(7) A person must not contravene an order made under this section.

(8) A person must not remove the copy of an order affixed to a food premises under subsection (4)(a)(i) while that order remains in force.

(9) For the purposes of this section, relevant authority means any one of the following—

(a) the Secretary;

(b) the council that is the registration authority for the premises;

(c) if the premises is a temporary food premises or a mobile food premises, the council of the municipal district in which the premises is being operated;

S. 19(9)(ca) inserted by No. 60/2012 s. 54(2).

(ca) DFSV in relation to any food premises in respect of which it has issued a dairy industry licence under Part 3 of the Dairy Act 2000;

S. 19(9)(cb) inserted by No. 60/2012 s. 54(2).

(cb) PrimeSafe in relation to any food premises in respect of which it has issued a licence under Part 4 of the Meat Industry Act 1993 or a seafood safety licence under Part 3 of the Seafood Safety Act 2003;

(d) the chief executive officer of a council referred to in paragraph (b) or (c).

Note to s. 19 inserted by No. 13/2013 s. 24(7).

Section 51B applies to an offence against subsection (7) or (8).

S. 19AA inserted by No. 60/2012 s. 55.

19AA Orders relating to premises on which primary food production and related activities are carried out

(1) This section applies if the relevant authority is satisfied from the report of an authorized officer that—

(a) food being prepared, sold or otherwise handled at any premises is unsafe or unsuitable; or

(b) food is being prepared, sold or otherwise handled at any premises in a manner that makes it likely that the food is unsafe or unsuitable; or

S. 19AA(1)(c) amended by No. 6/2024 s. 32(1).

(c) any premises, or any vehicle, plant, machinery or equipment used on the premises, or any activity conducted on the premises, in connection with any food prepared, sold or otherwise handled at the premises, or any such food, does not comply with an applicable requirement of a primary production and processing standard; or

S. 19AA(1)(d) inserted by No. 6/2024 s. 32(2).

(d) the prescribed grounds for making an order apply in respect of or at any premises.

(2) Subject to subsection (3), the relevant authority, by written order, may direct that, within a specified time, the relevant person in respect of a premises referred to in subsection (1) must do any one or more of the following—

(a) take specified steps to ensure that food prepared, sold or otherwise handled at the premises is safe and suitable;

(b) take specified steps to ensure that the premises, or any vehicle, plant, machinery or equipment used on the premises in connection with any food prepared, sold or otherwise handled at the premises is cleaned and disinfected or put into an altered condition to the satisfaction of the authorized officer;

(c) ensure that any requirement of an applicable primary production and processing standard referred to in subsection (1)(c) is complied with.

(3) An order may not be made under subsection (2)(c) in relation to a requirement of an applicable primary production and processing standard, if the relevant person is a person who is exempted from compliance with that requirement by an order made under section 5(5).

If a person exempted under section 5(5) from complying with an applicable requirement of a primary production and processing standard does not comply or is not complying with any condition of the exemption, the exemption will no longer be in force and the person will not be exempt from that requirement. The person may then be subject to a direction under this section if there has been non-compliance with that requirement.

(4) The relevant authority, in an order under subsection (2) or a subsequent written order, may direct that, until the directions in subsection (2) are complied with, the relevant person in respect of the premises referred to in subsection (2) must ensure that—

(a) the premises or a specified area of the premises is not used for the preparation, sale or other handling of food or an activity connected with food specified in the order; or

(b) any vehicle, plant, machinery or equipment on the premises is not used in connection with the preparation, sale or other handling of food or an activity connected with food specified in the order; or

(c) any food or class of food specified in the order is not removed from the premises, for any purpose (including any purpose specified in the order) or in any circumstances specified in the order, for the period of time that is specified in the order*.*

(5) An order under this section—

(a) must be served on the relevant person in respect of the premises to which the order applies; or

(b) if the name and address of the relevant person is unknown, must be affixed to a conspicuous part of the premises to which the order applies.

(6) An order under this section takes effect when it is served or affixed (as the case may be) in accordance with subsection (5).

(7) If satisfied that an order made under this section has been complied with, the relevant authority must—

(b) give written notice of the revocation of the order in the same manner in which the order was served.

(8) A person must not contravene an order made under this section.

Penalty: 120 penalty units.

(9) A person (other than the relevant person to whom the order applies) must not remove an order affixed to a premises under subsection (5)(b) while that order remains in force.

Penalty: 60 penalty units.

(10) In this section—

premises means any premises on which an activity, to which a primary production and processing standard applies, is conducted;

S. 19AA(10) def. of relevant authority amended by Nos 2/2017 s. 16(6), 38/2020 s. 8, 44/2024 s. 16.

relevant authority means any one of the following—

(a) in the case of a premises used solely for the purposes of a primary food production business—

(i) the Secretary DEECA;

(ii) a declared authority;

(b) in the case of a food premises—

(i) the Secretary DEECA;

(ii) the Secretary DH;

(iii) a declared authority;

(iv) the council that is the registration authority for the premises;

(v) the chief executive officer of a council referred to in subparagraph (iv);

relevant person means the person who, on a premises, is conducting an activity to which a primary production and processing standard applies.

Note to s. 19AA inserted by No. 13/2013 s. 24(8).

Section 51B applies to an offence against subsection (8) or (9).

New s. 19A inserted by No. 42/2009 s. 9.

19A Orders relating to food vending machines and other equipment

(1) This section applies if an authorized officer is satisfied that a food vending machine or other equipment is in an unclean or unsanitary condition, or in a state of disrepair.

(2) The authorized officer may by written order direct that, by a specified time, the food vending machine or other equipment be put into a clean and sanitary condition or be altered or improved to the satisfaction of the authorized officer.

(3) An authorized officer may in an order made under subsection (2) or in a subsequent written order, direct that until the matters referred to in subsection (2) are complied with—

(a) the food vending machine must not be kept or used for the sale or the storing, serving or supplying for sale of—

(i) any food; or

(ii) food specified in the order; or

(b) the equipment must not be used in or in connection with the sale, or the handling for sale, of any food or the cleaning of any other equipment.

(4) If an authorized officer makes an order that includes a direction under subsection (3)(a)(i), the authorized officer—

(a) may affix a copy of the order to a conspicuous part of the machine in such a manner that the order can be read by a member of the public; and

(b) must notify the registration authority of—

(i) the making of the order; and

(ii) any appeal made under section 19BA against the order and the outcome of the appeal.

Under section 43(2), the record of registration maintained by the registration authority in respect of a food vending machine must include the details of any order in force under this section that includes a direction under subsection (3)(a)(i) in relation to the machine.

(5) An order under this section takes effect—

(a) when it is given to or served on the proprietor of the food vending machine or equipment; or

(b) if the name and address of the proprietor is unknown, when it is affixed to a conspicuous part of the machine or equipment.

(6) If satisfied that an order made under this section has been complied with, the authorized officer must—

(b) give written notice of the revocation of the order in the same manner in which the order was given or served.

(7) A person must not contravene an order made under this section.

(8) A person must not remove the copy of an order affixed to a food vending machine under subsection (4)(a) while that order remains in force.

Note to s. 19A inserted by No. 13/2013 s. 24(7).

Section 51B applies to an offence against subsection (7) or (8).

Pt 3A (Heading) repealed by No. 42/2009 s. 10.

Pt 3A (Heading and ss 19A, 19B) inserted by No. 20/1995 s. 8.

S. 19A inserted by No. 20/1995 s. 8, repealed by No. 14/2001 s. 9(i).

S. 19B (Heading) inserted by No. 42/2009 s. 11(1).

S. 19B inserted by No. 20/1995 s. 8.

19B Orders relating to food handlers

S. 19B(1) amended by No. 14/2001 s. 9(j).

(1) If an authorised officer is satisfied that there has been a contravention of this Act in relation to a person employed or engaged to handle unpackaged food, he or she may by order in writing direct that specified steps be taken—

(a) to ensure that that person or his or her clothing is put in a clean and sanitary condition; or

(b) to alter or improve the method of handling of unpackaged food by that person; or

S. 19B(1)(c) amended by No. 14/2001 s. 9(k).

(c) to ensure that that person ceases to handle unpackaged food until diagnosed by a registered medical practitioner as not suffering from a condition that is liable to render unpackaged food unsafe or unsuitable.

S. 19B(2) amended by No. 14/2001 s. 9(l).

(2) An order under this section takes effect when it is given to or served on the proprietor of the food premises or food vending machine.

(3) If the authorised officer is satisfied that an order made under this section with respect to a person has been complied with, he or she must—

(a) forthwith revoke the order; and

(b) give written notice of the revocation of the order in the same manner in which the order was given or served under this section.

S. 19B(4)–(6) repealed by No. 42/2009 s. 11(2).

(7) A person must not contravene an order made by an authorised officer under this section.

For a first offence 25 penalty units, and for a second or subsequent offence 50 penalty units.

Note to s. 19B(7) inserted by No. 13/2013 s. 24(4).

S. 19BA inserted by No. 42/2009 s. 12 (as amended by No. 69/2009 s. 54(Sch. Pt 1 item 25)).

19BA Appeals against orders

(1) Any person who is aggrieved by an order made under this Part may, within 21 days after the order is made, appeal to the Magistrates' Court.

(2) On an appeal under subsection (1), the court must—

(a) reconsider the decision of the person who made the order; and

(b) hear any relevant evidence tendered by—

(i) the person aggrieved; or

(ii) the person who made the order.

(3) If notice of an order has been published under section 19(4)(a)(ii) and the order is varied or revoked by the court, the person who made the order must give notice of the variation or revocation of the order to the general public in the same manner as the original notice.

(4) The costs of, and incidental to, an appeal under subsection (1) are in the discretion of the Magistrates' Court.

(5) Nothing in subsection (2)(b) prevents the application of Part 3.10 of the Evidence Act 2008.

New Pt 3A (Heading and ss 19BB, 19BC) inserted by No. 42/2009 s. 34.

Part IIIA—Undertakings

S. 19BB inserted by No. 42/2009 s. 34.

19BB Secretary may accept undertaking

(1) The Secretary may accept a written undertaking given by a person in connection with a matter relating to a contravention, or alleged contravention, of section 13, 16(3) or 16(4) or any prescribed provision.

(2) The undertaking must specify—

S. 19BB(2)(a) amended by No. 60/2012 s. 56.

(a) the premises or food business to which the undertaking relates; and

(b) the action proposed to be taken; and

(d) any other relevant matter.

(3) The person may, with the Secretary's consent, withdraw or vary the undertaking at any time.

(4) While the undertaking is in force, a proceeding may not be brought for an offence relating to the matter referred to in subsection (1).

(5) The Secretary may in writing authorise the Director of Consumer Affairs, either generally or for a specific case, to accept an undertaking under this section.

(6) The Secretary may in writing authorise a council, either generally or for a specific case, to accept an undertaking under this section in circumstances where the council is the registration authority for the food premises.

(7) An authorisation given by the Secretary under subsection (6) may be subject to any conditions and limitations imposed by the Secretary.

S. 19BC inserted by No. 42/2009 s. 34.

19BC Consent orders and enforcement of undertaking

(1) The Secretary, with the consent of the person who gave an undertaking, may apply at any time to the Magistrates' Court for an order directing the person to comply with the undertaking.

(2) On an application under subsection (1), the Magistrates' Court may by order direct the person who gave the undertaking to comply with the order.

(3) If the Secretary considers that the person who gave the undertaking has breached any of its terms, the Secretary may apply to the Magistrates' Court for an order under subsection (4).

(4) If the Magistrates' Court is satisfied that the person has breached a term of the undertaking, the Magistrates' Court may make—

(a) an order that the person comply with the undertaking or take specified action to comply with the undertaking; or

(b) any other order that the Magistrates' Court considers appropriate.

(5) A person who has accepted an undertaking under the authorisation of the Secretary may exercise the powers and discretions of the Secretary under this section in relation to that undertaking.

Pt 3B (Heading and ss 19C–19W) inserted by No. 98/1997 s. 5, amended by No. 14/2001 ss 10–19, substituted by No. 42/2009 s. 13.

Part IIIB—Food safety

Division 1—Classification of food premises

S. 19C substituted by No. 42/2009 s. 13.

19C Declaration of classes of food premises

(1) The Secretary may, by notice published in the Government Gazette, declare classes of food premises having regard to—

(a) the food handling activities undertaken at the premises and in particular the degree of risk associated with those activities;

(b) the nature of the food business operating from the premises;

(2) For each declared class of food premises, the Secretary may specify—

(a) whether food premises of that class are required—

(i) to keep the minimum records required under Division 2; or

(ii) to have a food safety program;

(b) whether food premises of that class are required to have a food safety supervisor;

S. 19C(2)(c) amended by No. 38/2020 s. 9(1).

(c) whether food premises of that class are exempt from the requirement under section 39 to be inspected during the period of registration.

(3) In addition, for any declared class of food premises required to have a food safety program, the Secretary must specify—

S. 19C(3)(a) amended by No. 38/2020 s. 9(2).

(a) the food safety program type or types that may be used for the premises; and

(b) the requirements for the audit or assessment of the premises as provided in section 19H.

(4) A declaration, or a variation to a declaration, under this section may only be made after the Secretary has complied with section 19CA.

S. 19CA inserted by No. 42/2009 s. 13.

19CA Notice of intention to make or vary declaration of classes of food premises

(1) If the Secretary intends to make or vary a declaration under section 19C, notice of the Secretary's intention must be published in—

(a) the Government Gazette; and

(b) a newspaper circulating generally in Victoria.

(2) The notice must state—

(a) the proposed declaration or variation to the declaration; and

(b) that submissions may be made to the Secretary regarding the proposed declaration or variation within a period of at least 60 days specified in the notice; and

(c) if subsection (4) applies, that the proposed declaration or variation takes effect immediately pending the consideration of submissions by the Secretary.

(3) After considering any submissions made in response to the notice, the Secretary must—

(a) make the declaration or the variation to the declaration as originally notified or with any modifications the Secretary considers necessary; or

(b) state in a notice published in the Government Gazette that the Secretary will not be proceeding with the declaration or variation notified under subsection (2).

(4) If the Secretary is satisfied that there are urgent reasons for making a declaration or variation to a declaration, a notice given under this section may specify that the proposed declaration or variation takes effect immediately.

(5) If subsection (4) applies, the proposed declaration or variation remains in effect for 6 months unless, in the meantime, the Secretary—

(a) makes a declaration under section 19C giving effect to the proposed declaration or variation as originally notified or with modifications; or

(b) gives notice under subsection (3)(b) that the declaration or variation is not proceeding.

Division 2—Minimum record keeping

S. 19CB inserted by No. 42/2009 s. 13.

19CB Minimum record keeping

(1) The Secretary may declare, by notice published in the Government Gazette, the record keeping requirements for food premises that are required by a declaration under section 19C to keep minimum records.

(2) The notice must specify—

(a) the records that must be kept; and

(b) the period for which the records must be kept.

(3) The Secretary may specify in the notice different minimum record keeping requirements for different food premises depending on—

(a) the declared class of food premises to which the premises belong;

(b) the food handling activities undertaken at the premises.

(4) The proprietor of a food premises required to keep minimum records must—

(a) maintain the records as required by the notice, including keeping the records for the duration required in the notice; and

(b) if requested to do so by the registration authority, provide to the registration authority a copy of the records within the time specified in the request.

(5) A failure to comply with subsection (4) is a ground for—

S. 19CB(5)(a) amended by No. 38/2020 s. 10.

(6) The proprietor of a food premises required to keep minimum records must ensure that the required records are kept at the premises to which they relate.

Note to s. 19CB(6) inserted by No. 13/2013 s. 24(4).

Division 3—Food safety programs

S. 19D substituted by No. 42/2009 s. 13.

19D Food safety programs

A food safety program for a food premises is a written document that—

(a) systematically identifies the potential hazards that may be reasonably expected to occur in each food handling operation that is to be, or that is being, conducted at the premises;

(b) specifies where, in a food handling operation, each hazard identified under paragraph (a) can be controlled and the means of control;

(d) provides for appropriate corrective action when each hazard indentified under paragraph (a) is found not to be under control;

(e) provides for the regular review of the program by the proprietor of the food premises;

(f) provides for appropriate records to be made and kept by the proprietor of the food premises demonstrating action taken in relation to, or in compliance with, the food safety program.

S. 19DB substituted by No. 42/2009 s. 13.

19DB Registration of food safety program templates

(1) The Secretary may register a food safety program template by publishing a notice in the Government Gazette—

(a) stating that the template is registered for use; and

(b) specifying the classes or categories of food businesses in respect of which the template is suitable for use.

(2) The notice must contain sufficient detail to enable the food safety program template to which it refers to be readily identified.

(3) If the Secretary revokes the registration of a food safety program template, any standard food safety program that was created using the template before the template was revoked ceases to be a standard food safety program on the date of expiry of the registration of the premises to which the standard food safety program relates.

S. 19DB(4) inserted by No. 38/2020 s. 11.

(4) The Secretary must not register a food safety program template until the fee (if any) prescribed in the regulations in respect of the registration has been paid.

S. 19DC substituted by No. 42/2009 s. 13.

19DC Standard food safety programs

(1) A standard food safety program is a food safety program for a food premises that has been created using a registered food safety program template.

(2) The standard food safety program must comply with the following conditions—

(a) the program must be created in accordance with the instructions set out in the food safety program template; and

(b) the food safety program template must be registered under section 19DB as suitable for use in respect of the class or category of food business that is being carried out at, on or from the food premises.

S. 19DD inserted by No. 42/2009 s. 13.

19DD QA food safety program

(1) The Secretary may, by notice published in the Government Gazette, declare that a specified quality assurance system or code may be used to develop a food safety program.

(2) A QA food safety program is a food safety program for a food premises that has been issued with a certificate by an approved food safety auditor stating that the program—

(a) has been developed—

(i) under a quality assurance system or code specified in a declaration under subsection (1); and

(ii) in accordance with the purpose and terms of that system or code; and

(b) meets all the requirements under section 19D.

(3) A certificate under subsection (2) remains in force for the audit interval applying to the food premises under section 19H.

S. 19E substituted by No. 42/2009 s. 13.

19E Requirement for food safety program

(1) The proprietor of a food premises required by a declaration under section 19C to have a food safety program must—

(a) ensure that there is a food safety program for the premises that meets the requirements of section 19D;

S. 19E(1)(b) amended by No. 38/2020 s. 12(1).

(b) ensure that the food safety program is of the food safety program type permitted by a declaration under section 19C to be used by the premises;

(d) if requested to do so by the registration authority, provide to the registration authority a copy of the food safety program for the premises within the time specified in the request.

(2) The proprietor of a food premises complies with subsection (1)(a) if the proprietor uses—

(a) a standard food safety program for the premises that complies with section 19DC(2); or

(b) a QA food safety program for the premises.

(3) If a certificate issued by a food safety auditor states that at the date of the audit—

(a) a food safety program for a premises meets the requirements of section 19D; or

(b) a standard food safety program for a premises complies with section 19DC(2)—

the proprietor of the premises is taken to be complying with subsection (1)(a) on that date.

(4) A failure to comply with subsection (1) is a ground for—

S. 19E(4)(a) amended by No. 38/2020 s. 12(2).

S. 19EA inserted by No. 42/2009 s. 13.

19EA Revision of food safety program

(1) This section applies if there is a change in the activities carried out at a food premises required by a declaration under section 19C to have a food safety program.

(2) The proprietor must ensure that the food safety program for the premises is reviewed and, if necessary, revised to enable it to continue to meet the requirements of section 19D.

S. 19EA(3) amended by No. 38/2020 s. 13.

(3) If the proprietor of a food premises is required under section 38A(6) or 38A(7) to provide a food safety program to the registration authority with an application for registration, the proprietor must give the registration authority a copy of any significant revision that is made to the food safety program within 14 days after the revision is made.

(4) A failure to comply with subsection (2) or (3) is a ground for—

(a) the refusal of the renewal of the registration of the premises;

S. 19F substituted by No. 42/2009 s. 13.

19F Food safety program must be kept at premises

The proprietor of a food premises required by a declaration under section 19C to have a food safety program must ensure that the food safety program is kept at the premises to which it relates.

Note to s. 19F inserted by No. 13/2013 s. 24(9).

S. 19FA inserted by No. 6/2024 s. 33.

19FA Proprietor to comply with written direction of registration authority

(1) A registration authority, in writing, may direct a proprietor of a food premises to—

(a) revise the food safety program for the premises if, in the opinion of the Secretary or the registration authority, the food safety program for the premises is not or is no longer adequate; or

(b) comply with any requirements specified in the food safety program.

(2) A direction given under subsection (1) must specify a time limit for compliance with the direction, which must be at least 28 days.

(3) If the proprietor of a food premises fails to comply with a direction given under subsection (1) within the specified time limit, the registration authority may—

(a) refuse to approve an application for—

(i) registration of the premises; or

(ii) renewal of registration of the premises; or

(b) revoke a registration granted in respect of the premises; or

Division 4—Food safety supervisors

S. 19G substituted by No. 42/2009 s. 13.

19G Food safety supervisors

(1) A food safety supervisor is a person who, in relation to a food premises—

(a) knows how to recognise, prevent and alleviate the hazards associated with the handling of food at, or from, that premises; and

(b) has met an appropriate food safety competency standard for premises of the same nature as the premises; and

(c) has the ability and the authority to supervise other people handling food at, or from, the premises and to ensure that that handling is done safely.

(2) In this section, food safety competency standard means a food safety competency standard approved in writing by the Secretary or by a relevant State, national or international statutory or regulatory body.

(3) The regulations may specify who the relevant body is in a particular case or set of circumstances.

S. 19GA substituted by No. 42/2009 s. 13.

19GA Requirement for food safety supervisor

(1) Subject to subsection (2), the proprietor of a food premises required by a declaration under section 19C to have a food safety supervisor must ensure that there is a food safety supervisor for the premises.

(2) A food safety supervisor is not required for a food premises for which a QA food safety program is used that includes competency based or accredited training for staff of the premises.

(3) The food safety supervisor for a premises may be the proprietor of the premises.

(4) A failure to comply with this section is a ground for—

S. 19GA(4)(a) amended by No. 38/2020 s. 14.

S. 19GB substituted by No. 42/2009 s. 13.

19GB Name of supervisor to be provided on request

The proprietor of a food premises that is required under section 19GA(1) to have a food safety supervisor must give the registration authority written details of the name and qualifications of the current food safety supervisor for the premises within 7 days of being asked in writing to do so by the registration authority.

Note to s. 19GB inserted by No. 13/2013 s. 24(9).

Division 5—Assessment and audit of food premises

S. 19H substituted by No. 42/2009 s. 13.

19H Assessment and audit requirements for food premises

(1) This section applies if a class of food premises is declared under section 19C and, under the declaration, food premises of that class are required to have a food safety program.

S. 19H(2) amended by No. 38/2020 s. 15.

(2) The declaration may specify for each food safety program type permitted to be used by the food premises—

(a) whether food safety assessments of the food premises are required to be conducted and, if so, the frequency and timing of the assessments;

(b) whether food safety audits of the food premises are required to be conducted and, if so, the frequency and timing of the audits.

(3) The declaration may specify the circumstances in which a food safety assessment may be conducted by a food safety auditor.

(4) For the purposes of subsection (2), the declaration may specify—

(a) default requirements relating to the frequency and timing of the assessments or audits; and

(b) the range of frequencies and intervals that otherwise may be applied by the registration authority for any particular food premises.

(5) In determining the frequency and intervals of the assessments and audits that are to apply to a food premises for the purposes of subsection (4)(b), the registration authority must take into account—

(a) the food safety performance of the food business operating from the premises;

The registration authority may take into account past failures by the proprietor of the food business to comply with food safety programs or any other relevant requirements of this Act (including the Food Standards Code) or the regulations.

(b) any guidelines issued by the Secretary in a notice published in the Government Gazette for this purpose.

S. 19HA substituted by No. 42/2009 s. 13.

19HA Food safety assessments and food safety audits

(1) A food safety assessment is an assessment of a food premises conducted for the purposes of this Act to determine—

(a) whether the food safety requirements applying to the premises have been complied with; and

(b) in the case of a premises using a standard food safety program, whether the food safety program complies with section 19DC(2).

Under section 19DC(2), a standard food safety program must be created using a food safety program template registered under section 19DB as suitable for the food business being carried out at, on or from the food premises and the food safety program must be created in accordance with the instructions set out in the template.

(2) A food safety audit is an audit of a food premises conducted for the purposes of this Act to determine—

(a) whether the food safety requirements applying to the premises have been complied with; and

(b) whether the food safety program for the premises is adequate.

(3) For the purposes of a food safety assessment or food safety audit conducted under this Division—

(a) the food safety requirements applying to a food premises have been complied with if—

(i) the food safety program for the premises has been complied with during the period covered by the applicable food safety assessment or food safety audit; and

(ii) if relevant, appropriate action has been taken to remedy any deficiencies identified in any previous food safety assessment or food safety audit; and

(iii) the applicable provisions of the Food Safety Standards are being complied with; and

(b) a food safety program is adequate if it meets the requirements specified in section 19D.

S. 19I substituted by No. 42/2009 s. 13.

19I Requirement for food safety assessment

(1) This section applies to a food premises that is required by a declaration under section 19C to have a food safety assessment conducted.

(2) Subject to section 19J, a food safety assessment of the premises must be conducted by the registration authority as required under section 19H.

(3) A food safety assessment conducted under this section by the registration authority is an inspection for the purposes of this Act.

S. 19IA substituted by No. 42/2009 s. 13.

19IA Deficiencies identified in food safety assessment by registration authority

(1) This section applies if the registration authority is of the opinion, after conducting a food safety assessment of a food premises, that—

(b) in the case of a food premises using a standard food safety program, the food safety program does not comply with section 19DC(2).

(2) Subject to subsection (3), the registration authority must give written notice to the proprietor of the food premises—

(i) in the case where the registration authority is of the opinion that a serious threat to public health exists on the food premises, as soon as practicable; or

(ii) in any other case, within the period specified in the notice.

(3) A notice under subsection (2) is not required if the registration authority has taken other appropriate action in relation to the deficiencies.

The registration authority has made an order under Part III in relation to the deficiencies.

(4) A failure to comply with a notice given by the registration authority under subsection (2) is a ground for—

S. 19IA(4)(a) amended by No. 38/2020 s. 16.

S. 19J substituted by No. 42/2009 s. 13.

19J Food safety assessment conducted by food safety auditor

(a) a food premises is required by a declaration made under section 19C to have a food safety assessment conducted; and

(b) under the declaration, the assessment may be conducted by a food safety auditor; and

(c) at the time of the registration of the food premises, the proprietor has elected to have the assessment conducted by a food safety auditor.

(2) The proprietor of the food premises must ensure that a food safety assessment of the premises is conducted as required under section 19H by a food safety auditor.

(3) A failure to comply with subsection (2) is a ground for—

S. 19J(3)(a) amended by No. 38/2020 s. 17.

(4) If a food safety auditor is of the opinion, after conducting a food safety assessment of a food premises, that—

(a) the food safety requirements applying to the premises have been complied with; or

(b) in the case of a food premises using a standard food safety program, the food safety program complies with section 19DC(2)—

the auditor must give the proprietor of the premises a certificate confirming that opinion.

S. 19JA inserted by No. 42/2009 s. 13.

19JA Deficiencies identified in food safety assessment by food safety auditor

(1) This section applies if a food safety auditor is of the opinion, after conducting a food safety assessment of a food premises, that—

(b) in the case of a food premises using a standard food safety program, the food safety program does not comply with section 19DC(2).

(2) The auditor must give written notice to the proprietor of the premises—

(i) in the case where the auditor is of the opinion that a serious threat to public health exists on the food premises, as soon as practicable; or

(ii) in any other case, within the period specified in the notice.

(3) Within 14 days of the expiry of the period specified in the notice, the food safety auditor must check to see whether the deficiencies have been remedied.

(4) Sections 19M(6), 19M(7) and 19M(8) apply to the assessment as if it were an audit and the reference in section 19M(7)(a) to subsections (2)(b) and (2)(c) of that section were a reference to subsections (2)(b) and (2)(c) of this section.

(5) Despite subsection (4), a certificate given to the proprietor of a food premises in relation to a food safety assessment conducted under this section does not need to address the adequacy of the food safety program for the premises.

S. 19K substituted by No. 42/2009 s. 13.

19K

Requirement for food safety audit

19K Requirement for food safety audit

(1) The proprietor of a food premises that is required by a declaration under section 19C to have a food safety audit conducted must ensure that a food safety audit of the premises is conducted—

(a) as required under section 19H; and

(b) by an approved food safety auditor whose certificate under section 19P states that he or she is competent to conduct an audit of food premises of the class or of a category to which the premises belongs.

S. 19K(2) amended by No. 60/2012 s. 72(3).

(2) A failure to comply with subsection (1) is a ground for—

S. 19K(2)(a) amended by No. 38/2020 s. 18.

S. 19L substituted by No. 42/2009 s. 13.

19L

Certificate of compliance following audit

19L Certificate of compliance following audit

If a food safety auditor is of the opinion, after conducting a food safety audit of a food premises, that—

(a) the food safety requirements applying to the premises have been complied with; and

(b) the food safety program for the premises is adequate—

the food safety auditor must give the proprietor of the premises a certificate confirming that opinion.

S. 19M substituted by No. 42/2009 s. 13.

19M

Deficiencies identified in food safety audit

19M Deficiencies identified in food safety audit

(1) This section applies if a food safety auditor is of the opinion, after conducting a food safety audit of a food premises, that—

(b) the food safety program is not adequate.

(2) Subject to subsections (4) and (7), the auditor must give written notice to the proprietor of the food premises—

(3) Within 14 days of the expiry of the period specified in the notice, the auditor must check to see whether the deficiencies have been remedied.

(4) If—

(a) the food safety audit has been conducted by the registration authority; and

(b) an order has been made under Part III in relation to the deficiencies—

a notice under section (2) is not required to be given but the auditor must within 14 days after the time allowed for compliance with the order check to see whether the deficiencies have been remedied.

(5) If a notice under subsection (2) is given by the registration authority, failure to comply with the notice is a ground for—

S. 19M(5)(a) amended by No. 38/2020 s. 19.

(6) If a deficiency identified in the audit has been remedied, the auditor must describe the deficiency in any certificate given to the proprietor under subsection (8).

(7) If, in the opinion of the auditor, a particular food safety requirement applying to the premises has not been complied with and it is no longer possible to remedy the deficiency, the auditor—

(a) need not comply with subsections (2)(b) and (c) in relation to the deficiency, but must still comply with section 19N(3) if it is relevant to the deficiency; and

(b) must describe the deficiency in any certificate given to the proprietor under subsection (8) and any notice given to the registration authority under section 19N(4).

(8) If all the deficiencies that could be remedied have been remedied, the auditor must give the proprietor a certificate stating that, despite deficiencies occurring during the audit period—

(a) in the opinion of the auditor, the food safety program for the premises is now adequate; and

(b) any deficiencies relating to the food safety requirements applying to the premises that could be remedied have now been remedied.

S. 19MA inserted by No. 38/2020 s. 20.

19MA Certificate of food safety program adequacy

(1) This section applies if a food safety auditor—

(a) has conducted a food safety audit of a food premises; and

(b) because of an unremedied deficiency identified in the audit, has not issued a certificate under section 19L or 19M.

(2) If the auditor is of the opinion that the food safety program for the premises is adequate, the auditor must give the proprietor of the premises a certificate confirming that opinion.

S. 19N substituted by No. 42/2009 s. 13.

19N Food safety auditor to provide certain information to registration authority

(1) This section applies if a food safety assessment or a food safety audit of a food premises has been conducted by a food safety auditor who is not an officer or a member of the staff of the registration authority.

S. 19N(2) amended by No. 38/2020 s. 21.

(2) Within 14 days after a certificate is given to the proprietor of the food premises under section 19J, 19L, 19M or 19MA, the food safety auditor must give a copy of the certificate to the registration authority.

(3) If the auditor is of the opinion—

(a) that the food safety requirements applying to the premises have not been complied with or the food safety program is inadequate or, in the case of a food premises using a standard food safety program, the program does not comply with section 19DC(2); and

(b) the deficiency may lead to a serious risk of food being sold or prepared that is unsafe or unsuitable—

the auditor must notify the registration authority of the risk as soon as practicable, together with details of the notice given to the proprietor under section 19JA(2) or 19M(2) in relation to the deficiency.

(4) If any deficiency has not been remedied within the period allowed under section 19JA(2)(c) or 19M(2)(c), the auditor must notify the registration authority of the failure to remedy the deficiency—

(a) if the failure to remedy the deficiency may lead to a serious risk of food being sold or prepared that is unsafe or unsuitable, as soon as practicable; or

(b) in any other case, within 14 days after becoming aware of the failure.

S. 19NA inserted by No. 42/2009 s. 13.

19NA Request by registration authority for copy of report prepared by food safety auditor

(1) For the purposes of this Act, the registration authority may request the proprietor of a food premises to provide within 14 days copies of any report prepared by a food safety auditor in relation to the food premises prepared within the previous 4 years.

(2) A failure by the proprietor to comply with the request is a ground for—

S. 19NA(2)(a) amended by No. 38/2020 s. 22.

Div 6

Food safety auditors

Division 6—Food safety auditors

S. 19O substituted by No. 42/2009 s. 13.

19O

Only approved auditor may conduct audit

19O Only approved auditor may conduct audit

A person must not conduct a food safety audit of a food premises unless he or she is an approved food safety auditor for the class or category of food premises to which the food premises belongs.

S. 19P substituted by No. 42/2009 s. 13.

19P

Certification of food safety auditors

19P Certification of food safety auditors

(1) A certifying body may certify in writing that a natural person is competent to conduct a food safety audit.

(2) In certifying a person, the certifying body—

(a) may specify on the certificate that the certification applies to all, or specified, classes or categories of food premises; and

(b) may impose any conditions on the certification; and

(3) The Secretary may impose conditions on the certification of a person as an approved food safety auditor whether or not the Secretary is, in relation to the person, the certifying body.

(4) A person who is certified to conduct food safety audits of a class or category of food premises is also competent to conduct a food safety assessment of that class or that category of premises which has a non-standard food safety program.

(5) The certifying body must not certify a person until the person has paid the fee (if any) prescribed in the regulations for a certification.

(6) For the purposes of this section and section 19T, certifying body means—

(a) the Secretary; or

(b) any person prescribed by the regulations for the purposes of this section.

S. 19Q substituted by No. 42/2009 s. 13.

19Q

Auditor must comply with conditions of certification

19Q Auditor must comply with conditions of certification

An approved food safety auditor must comply with any conditions imposed under section 19P(2)(b) or 19P(3) on the certification of the person as a food safety auditor.

S. 19R substituted by No. 42/2009 s. 13.

19R

Offence to impersonate approved auditor

19R Offence to impersonate approved auditor

(1) A person must not directly or indirectly represent that he or she is an approved food safety auditor unless the person is an approved food safety auditor.

(2) Without limiting subsection (1), a person represents that he or she is an approved food safety auditor if the person uses or takes the title "approved food safety auditor".

(3) A person must not directly or indirectly represent that he or she is authorised to conduct a food safety audit unless the person is an approved food safety auditor.

S. 19S substituted by No. 42/2009 s. 13.

19S

Conflict of interest

19S Conflict of interest

(1) A person must not conduct a food safety audit of a food premises if the person has written, or assisted in preparing, the food safety program for the premises.

(2) A person must not conduct a food safety audit of a food premises if the person is the proprietor, or an employee or officer of the proprietor, of the premises.

(3) For the purposes of this section, assisted in preparing does not include advice given by, or on behalf of, the registration authority to assist a proprietor of a food premises comply with this Act.

S. 19T substituted by No. 42/2009 s. 13.

19T

Revocation of approval to act as an auditor

19T Revocation of approval to act as an auditor

(1) A certifying body may, after giving a person an opportunity to be heard, revoke that person's certification as an approved food safety auditor if satisfied that—

(a) the certification was granted on the basis of fraud, misrepresentation or the concealment of facts; or

(b) the person has failed to comply with any requirement imposed by this Act on approved food safety auditors; or

(d) the person has been found guilty of fraudulent conduct in conducting an audit; or

(e) the person has not satisfactorily conducted 2 or more food safety audits.

(2) Despite subsection (1), only the Secretary may revoke the certification of a person who was certified by the Secretary.

S. 19U substituted by No. 42/2009 s. 13.

19U

Audit by council staff

19U Audit by council staff

(1) An officer or member of the staff of a council must not conduct, or assist in conducting, a food safety audit of—

(a) any fixed food premises located within that council's municipal district unless the audit is conducted on behalf of the council; or

S. 19U(1)(b) amended by No. 42/2009 s. 47.

(b) any temporary food premises, mobile food premises or food vending machine unless the audit is conducted on behalf of a council.

(2) If a food safety audit of a food premises is conducted by or on behalf of a council, the proprietor of the food premises must pay to the council the reasonable costs of the audit.

(3) The council may waive or vary the costs of an audit payable under subsection (2) if the council considers that there are special circumstances having regard to criteria fixed by the council.

(4) The council must ensure that the method of determining the reasonable costs of an audit payable under subsection (2) and the criteria fixed under subsection (3) are available for inspection by the public.

Div 7

Miscellaneous

Division 7—Miscellaneous

S. 19UA inserted by No. 42/2009 s. 13.

19UA Council fees for assessments

(1) A council may charge a fee for conducting—

(a) a food safety assessment of a food premises other than an assessment required by a declaration under section 19C;

S. 19UA(1)(b) amended by No. 38/2020 s. 23(1).

(b) an inspection of a food premises other than an inspection under section 38B(1)(c) or an inspection required under section 39.

(2) For the purposes of subsection (1)(a), an assessment is not required by a declaration under section 19C if that assessment is in excess of the default requirements relating to the frequency and timing of assessments referred to in section 19H(4)(a).

A declaration under section 19C specifies that the default requirement for the assessment of a food premises is that an assessment is to be conducted every 12 months. However, after taking into account failures by the business to comply with the Act, the registration authority determines that two assessments are required to be conducted in a 12 month period. In those circumstances, the registration authority may charge a fee for the second assessment conducted in that period but not for the first assessment.

(3) The fee charged—

(a) must be determined with reference to—

(i) the class declared under section 19C applicable to the premises; and

(ii) any guidelines issued by the Secretary; and

(b) must not include any costs of the assessment or inspection that form part of the registration fee payable to the registration authority under Part VI.

(4) In deciding whether to charge the fee, the council must take into consideration the history of compliance by the proprietor in relation to the food premises.

(5) The council must ensure that the method of determining a fee under subsection (3)(a) and the considerations that apply under subsection (4) are available for inspection by the public.

(6) A fee charged under subsection (1) must be paid to the council that has conducted the assessment or inspection.

S. 19UA(7) amended by No. 38/2020 s. 23(2).

(7) A failure to pay a fee charged under subsection (1) is a ground for the refusal of the registration or renewal of registration of the food premises.

S. 19V substituted by No. 42/2009 s. 13.

19V Exemptions concerning food safety

(1) The Secretary may exempt a proprietor of a food premises, or the proprietors of a class of food premises, from—

S. 19V(1)(a) amended by No. 29/2011 s. 3(Sch. 1 item 40.1).

(a) the need to have a food safety program, or a food safety program that fully complies with this Act;

(b) the need to comply with any requirement in a food safety program;

(d) the need to be assessed or audited in accordance with this Act;

(e) the need to comply with any other requirements imposed on proprietors by this Part or with any applicable provisions of the Food Safety Standards.

(2) In granting the exemption, the Secretary—

(a) must issue the exemption in writing and, in the case of an exemption applying in relation to a class of food premises, by notice published in the Government Gazette; and

(b) must specify the period for which it is to apply; and

(3) The Secretary may vary or revoke an exemption at any time in the same manner in which the exemption was granted.

(4) A failure to comply with a condition imposed under subsection (2)(c) is a ground for—

S. 19V(4)(a) amended by No. 38/2020 s. 24.

S. 19W substituted by No. 42/2009 s. 13.

19W Directions concerning food safety

(1) The Secretary or the registration authority may direct the proprietor of a food premises to comply with any requirement under this Part relating to the premises.

(2) Without limiting subsection (1), a direction may be given—

(a) to comply with any record keeping requirements applying to the premises under section 19CB;

(b) to comply with any specified requirement in the food safety program for the premises;

(d) to have the premises audited in accordance with this Act.

(3) The Secretary or the registration authority may direct the proprietor of a food premises—

(a) to have staff at the premises undertake training or instruction within a specified time to ensure that the requirements of this Act applying to the premises are met;

(b) to have details of any staff training incorporated into the minimum records required to be kept or food safety program of the premises.

(4) A direction given under this section must be in writing and must allow the proprietor at least 28 days to comply with the direction.

(5) A failure to comply with the direction within the time allowed is a ground for—

S. 19W(5)(a) amended by No. 38/2020 s. 25.

Part IV—Authorized officers

Authorized officers

20 Authorized officers

S. 20(1) amended by Nos 10262 s. 4, 13/1994 s. 7(1), 46/1998 s. 7(Sch. 1), substituted by Nos 98/1997 s. 6(1), 46/2008 s. 253(1).

(1) The Secretary may authorise in writing a person employed under Part 3 of the Public Administration Act 2004 or who is an officer or employee of a public statutory body to be an authorized officer for the purposes of this Act.

S. 20(1A) inserted by No. 46/2008 s. 253(1).

(1A) The Secretary must not give an authorisation unless the Secretary is satisfied that the person is suitably qualified or trained to be an authorized officer for the purposes of this Act.

S. 20(1B) inserted by No. 46/2008 s. 253(1).

(1B) Subject to this section, a council may, under section 224(1) of the Local Government Act 1989, appoint a person to be an authorized officer for the purposes of this Act.

S. 20(1C) inserted by No. 46/2008 s. 253(1).

(1C) A council must not appoint a person to be an authorized officer for the purposes of this Act unless the council is satisfied that the person is suitably qualified or trained to be an authorized officer for the purposes of this Act.

S. 20(2) amended by Nos 95/1986 s. 7(1), 12/1989 s. 4(1)(Sch. 2 item 47.3) (as amended by No. 13/1990 s. 38(1)(o)), repealed by No. 125/1993 s. 20(5)(b), new s. 20(2) inserted by No. 98/1997 s. 6(1), amended by No. 46/2008 s. 253(2).

(2) In granting such an authority, the Secretary or council may—

(a) limit the authority—

(i) to specified premises or vehicles or specified classes of premises or vehicles;

(ii) to a specified period of time;

(iii) to a particular investigation or for a particular purpose;

(b) specify that the authority is only to apply to particular powers, authorities, functions or duties of an authorised officer;

S. 20(2)(c) amended by No. 46/2008 s. 253(2).

(c) impose conditions on the authority (including a requirement to comply with any directions of the Secretary or council).

S. 20(3) amended by Nos 10262 s. 4,
98/1997 s. 16(a), substituted by No. 46/2008 s. 253(3).

(3) The Secretary must issue an identity card to each authorized officer authorised under subsection (1).

S. 20(3A) inserted by No. 98/1997 s. 6(2), substituted by No. 46/2008 s. 253(3).

(3A) An identity card issued to an authorized officer under this section must—

(a) contain a photograph of the authorized officer; and

(b) contain the signature of the authorized officer; and

S. 20(4) substituted by No. 46/2008 s. 253(3).

(4) An authorized officer must produce his or her identity card for inspection—

(a) before exercising a power under this Act; and

(b) at any time during the exercise of a power under this Act, if asked to do so.

S. 20(5) amended by Nos 95/1986 s. 7(1), 12/1989 s. 4(1)(Sch. 2 item 47.4) (as amended by No. 13/1990 s. 38(1)(o)), 125/1993 s. 20(5)(c), 13/1994 s. 7(2)(a)(b), 20/1995 s. 9(1), 98/1997
s. 16(a), 14/2001 s. 20(1), 46/2008 s. 253(4), 2/2017 s. 13.

(5) Unless acting in accordance with a delegation from the Secretary under section 19 of the Public Health and Wellbeing Act 2008, an authorized officer who is an environmental health officer shall not exercise the powers and authorities or discharge the functions and duties conferred or imposed upon him by or under this Act in or with respect to any food premises being operated on land that is not part of a municipal district.

S. 20(6) amended by Nos 10262 s. 4, 95/1986 s. 7(2), 12/1989 s. 4(1)(Sch. 2 item 47.5) (as amended by No. 13/1990 s. 38(1)(o)(q)), 125/1993 s. 20(5)(d), repealed by No. 13/1994 s. 7(3).

Powers of authorized officers

21 Powers of authorized officers

(1) In the execution of this Act an authorized officer with such assistants as he thinks necessary may—

S. 21(1)(a) amended by No. 98/1997 s. 18(1)(e).

(a) at any reasonable time enter any premises or other place in or at which he believes on reasonable grounds that any article is sold or handled for sale and therein may—

(i) make such investigation and enquiry as are necessary to ascertain whether the provisions of this Act are being complied with;

S. 21(1)(a)(ii) amended by No. 98/1997 s. 7.

(ii) inspect the premises or other place (as the case may be) and examine any fittings, fixtures, documents or articles contained therein including anything that he believes on reasonable grounds to be an article;

(iii) open and examine any package that he believes on reasonable grounds contains an article;

(iv) subject to this Act, take samples of any article;

(v) seize any article by means of or in relation to which he believes on reasonable grounds that any provision of this Act has been contravened or not complied with and detain or remove to some suitable place any article so seized;

(vi) mark, fasten, secure or seal any article or, where it is reasonably necessary to do so, mark, fasten, secure or seal any door, gate or opening that he believes on reasonable grounds affords access to an article;

(vii) seize or take samples of any thing or matter (apart from any article of which a sample may be taken pursuant to subparagraph (iv) or which may be seized pursuant to subparagraph (v)) that he believes on reasonable grounds may be used as evidence in a proceeding under this Act and detain or remove to some suitable place any samples so taken or thing or matter so seized; and

(viii) take such photographs or audio or visual recordings as he considers necessary;

S. 21(1)(b) amended by No. 98/1997 s. 18(1)(e).

(b) stop, detain and search any vehicle used or that he believes on reasonable grounds is being or is likely to be used for the conveyance of any article or in or on which he believes on reasonable grounds any article is sold or handled for sale and exercise in relation to that vehicle any of the powers or authorities conferred upon him by paragraph (a) in relation to any premises or other place;

(c) require a person found by him committing an offence against this Act or who he believes on reasonable grounds has committed an offence against this Act or whose name and address are in his opinion reasonably required to state his full name and the address of his usual place of residence and, if he suspects on reasonable grounds that a name or address so stated is false, may require him to produce evidence of the correctness thereof;

S. 21(1)(d) amended by No. 37/2014 s. 10(Sch. item 66.2).

(d) in a case where he is obstructed or believes on reasonable grounds that he may be obstructed in the exercise of the powers or authorities or the discharge of the functions or duties conferred or imposed upon him by or under this Act, call to his aid a police officer, whereupon it shall be the duty of a police officer so called to assist him as required and a police officer so assisting shall have the same powers and authorities as are conferred upon an authorized officer by this Act; and

(e) exercise such other powers or authorities and discharge such other functions or duties as are prescribed.

S. 21(2) amended by Nos 10262 s. 4, 98/1997 ss 16(a), 18(1)(c)(e).

(2) Where the Secretary certifies that the sale or the handling for sale of any food having any particular physical characteristics is likely to involve a contravention of or a failure to comply with this Act, the finding of any food having those physical characteristics and appearing to have been sold or handled for sale shall, for the purposes of subsection (1), constitute reasonable grounds for believing that there has been a contravention of or a failure to comply with this Act with respect to that food.

S. 21(3) amended by Nos 10262 s. 4, 98/1997 s. 16(a)(b), 60/2012 s. 57.

(3) If in the opinion of the Secretary there are reasonable grounds for suspecting that any person is (for the purposes of the sale or the preparing for sale of food or primary food production) in possession of any article by means of which or in relation to which any provision of this Act has been contravened or not complied with, the Secretary may require such person to produce for the Secretary's inspection or to produce to an authorized officer any relevant books and the Secretary or the authorized officer may inspect, examine and make copies of or extracts from any book so produced or remove it for the purpose of making a copy thereof or extracts therefrom.

Procuring of samples of food

22 Procuring of samples of food

S. 22(1) amended by No. 95/1986 s. 8.

(1) An authorized officer may, on payment or tender to the person in whose possession the food is or to his servant or agent of the current market value thereof or of the rate prescribed, demand and procure such samples of the food as are required for the purposes of this Act.

(2) Where any food is kept for retail sale in an unopened package, a person shall not be required by an authorized officer to sell less than the whole of that package.

(3) If a rate has been prescribed for the payment for a sample it shall not be necessary for an authorized officer to tender any higher price for that sample.

(4) The procuring of a sample pursuant to this section and the payment or tender of the current market value thereof or of the rate prescribed (as the case requires) shall for the purposes of this Act be deemed to be a sale by the person from whom the sample was obtained to the authorized officer of the food contained in the sample.

S. 22(5) inserted by No. 14/2001 s. 20(2).

(5) In the case of a vending machine, it is sufficient compliance with subsection (1) if the authorized officer obtains the sample by making proper payment for it.

More sections below

Source text: opening excerpt

Sourced from Victorian Legislation (legislation.vic.gov.au), CC BY 4.0.

1 Food Act 1984

Version No. 118

Food Act 1984

No. 10082 of 1984

Version incorporating amendments as at
17 April 2025

table of provisions

Section Page

Part I—Preliminary 1

1 Short title 1

2 Commencement 1

3 Objects of Act 2

4 Definitions 2

4A Meaning of food 16

4B Meaning of food business 17

4C Meaning of primary food production 17

4D Meaning of unsafe food 19

4E Meaning of unsuitable food 20

4F Reference to proprietors of premises 21

4G Food vending machines deemed to be food premises 21

4H Reference in Food Standards Code to appropriate enforcement agency 21

4I Declared authority for the purposes of references in Chapter 4 of the Food Standards Code 21

5 Orders 22

6 Act binds the Crown 24

6A Application of Act to primary food production 24

6B Application of Act to water suppliers and water storage managers 24

7 Extension to places outside municipal districts 25

Part IA—Administration and reporting 27